[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2004 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          29


          Parts 100 to 499

                         Revised as of July 1, 2004


          Labor
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2004
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2004



  For sale by the Superintendent of Documents, U.S. Government Printing 
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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 29:
    Subtitle B--Regulations Relating to Labor
          Chapter I--National Labor Relations Board                  5
          Chapter II--Office of Labor-Management Standards, 
          Department of Labor                                      119
          Chapter III--National Railroad Adjustment Board          133
          Chapter IV--Office of Labor-Management Standards, 
          Department of Labor                                      137
  Finding Aids:
      Table of CFR Titles and Chapters........................     239
      Alphabetical List of Agencies Appearing in the CFR......     257
      List of CFR Sections Affected...........................     267

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  29 CFR 100.101 
                       refers to title 29, part 
                       100, section 101.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2004), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

SALES

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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
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mail, [email protected].

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
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register. The NARA site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2004.

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                               THIS TITLE

    Title 29--Labor is composed of nine volumes. The parts in these 
volumes are arranged in the following order: parts 0-99, parts 100-499, 
parts 500-899, parts 900-1899, parts 1900-1910, part 1910.1000-End, 
parts 1911-1925, part 1926, and part 1927 to end. The contents of these 
volumes represent all current regulations codified under this title as 
of July 1, 2004.

    Subject indexes appear following the occupational safety and health 
standards (part 1910), and following the safety and health regulations 
for: Longshoring (part 1918), Gear Certification (part 1919), and 
Construction (part 1926).

    For this volume, Robert J. Sheehan was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

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[[Page 1]]



                             TITLE 29--LABOR




                  (This book contains parts 100 to 499)

  --------------------------------------------------------------------
                                                                    Part

                SUBTITLE B--Regulations Relating to Labor

chapter i--National Labor Relations Board...................         100

chapter ii--Office of Labor-Management Standards, Department 
  of Labor..................................................         215

chapter iii--National Railroad Adjustment Board.............         301

chapter iv--Office of Labor-Management Standards, Department 
  of Labor..................................................         401

Cross References: Railroad Retirement Board: See Employees' Benefits, 20 
  CFR chapter II.

  Social Security Administration: See Employees' Benefits, 20 CFR 
chapter III.

  Other regulations issued by the Department of Labor appear in 20 CFR 
chapters I, IV, V, VI, VII; 30 CFR chapter I; 41 CFR chapters 50, 60, 
and 61; and 48 CFR chapter 29.

[[Page 3]]

                Subtitle B--Regulations Relating to Labor

[[Page 5]]



                CHAPTER I--NATIONAL LABOR RELATIONS BOARD




  --------------------------------------------------------------------
Part                                                                Page
100             Administrative regulations..................           7
101             Statements of procedures....................          15
102             Rules and regulations, Series 8.............          32
103             Other rules.................................         115

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PART 100_ADMINISTRATIVE REGULATIONS--Table of Contents




             Subpart A_Employee Responsibilities and Conduct

Sec.
100.101 Cross--reference to financial disclosure requirements and other 
          conduct rules.

           Subpart B_Cooperation in Audits and Investigations

100.201 Audits and investigations.

Subpart C--Employee Personal Property Loss Claims [Reserved]

           Subpart D_Claims Under the Federal Tort Claims Act

100.401 Claims under the Federal Tort Claims Act for loss of or damage 
          to property or for personal injury or death.

 Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in 
 Programs or Activities Conducted by the National Labor Relations Board

100.501 Purpose.
100.502 Application.
100.503 Definitions.
100.504-100.509 [Reserved]
100.510 Self-evaluation.
100.511 Notice.
100.512-100.529 [Reserved]
100.530 General prohibitions against discrimination.
100.531-100.539 [Reserved]
100.540 Employment.
100.541-100.548 [Reserved]
100.549 Program accessibility: Discrimination prohibited.
100.550 Program accessibility: Existing facilities.
100.551 Program accessibility: New construction and alterations.
100.552-100.559 [Reserved]
100.560 Communications.
100.561-100.569 [Reserved]
100.570 Compliance procedures.
100.571-100.599 [Reserved]

    Authority: Sec. 6, National Labor Relations Act, as amended (29 
U.S.C. 141, 156).
    Subpart A is also issued under 5 U.S.C. 7301.
    Subpart B is also issued under the Inspector General Act of 1978, as 
amended by the Inspector General Act Amendments of 1988, 5 U.S.C. app. 
3; 42 U.S.C. 2000e-16(a).
    Subpart D is also issued under 28 U.S.C. 2672; 28 CFR part 14.
    Subpart E is also issued under 29 U.S.C. 794.



             Subpart A_Employee Responsibilities and Conduct



Sec. 100.101  Cross-reference to financial disclosure requirements and 
other conduct rules.

    Employees of the National Labor Relations Board (NLRB) should refer 
to the executive branch-wide Standards of Ethical Conduct at 5 CFR part 
2635; the NLRB's regulations at 5 CFR part 7101, which supplement the 
executive branch-wide standards; the employee responsibilities and 
conduct regulations at 5 CFR part 735; and the executive branch 
financial disclosure regulations at 5 CFR part 2634.

[62 FR 6448, Feb. 12, 1997]



           Subpart B_Cooperation in Audits and Investigations



Sec. 100.201  Audits and investigations.

    (a) Employees shall cooperate fully with any audit or investigation 
conducted by the Office of the Inspector General involving matters that 
fall within the jurisdiction and authority of the Inspector General, as 
defined in the Inspector General Act of 1978, as amended, or with any 
audit or investigation conducted by any Agency official or department, 
including, but not limited to, the Office of Equal Employment 
Opportunity, involving matters that relate to or have an effect on the 
official business of the Agency. Such cooperation shall include, among 
other things, responding to requests for information, providing 
statements under oath relating to such audits or investigations, and 
affording access to Agency records and/or any other Agency materials in 
an employee's possession.
    (b) The obstruction of an audit or investigation, concealment of 
information, intentional furnishing of false or misleading information, 
refusal to provide information and/or answer questions, or refusal to 
provide a statement under oath, by an employee to an auditor or 
investigator pursuant to any audit or investigation as described in 
paragraph (a) of this section, may result in disciplinary action against 
an employee. However, nothing herein shall be construed to deny, 
abridge, or

[[Page 8]]

otherwise restrict the rights, privileges, or other entitlements or 
protections afforded to Agency employees.

[59 FR 37158, July 21, 1994]

Subpart C--Employee Personal Property Loss Claims [Reserved]



           Subpart D_Claims Under the Federal Tort Claims Act



Sec. 100.401  Claims under the Federal Tort Claims Act for loss of or 
damage to property or for personal injury or death.

    (a) Filing of claims. Pursuant to 28 U.S.C. 2672, any claim under 
the Federal Tort Claims Act for money damages for loss of or injury to 
property, or for personal injury or death, caused by the negligent or 
wrongful act or omission of any employee of the National Labor Relations 
Board while acting within the scope of his office or employment, under 
circumstances where the United States, if a private person, would be 
liable to the claimant for such loss, injury or death in accordance with 
the law of the place where the act or omission occurred, may be 
presented to the Director of Administration, 1099 Fourteenth Street, 
NW., Washington, DC 20570, or to any regional office of the National 
Labor Relations Board, at any time within 2 years after such claim has 
accrued. Such a claim may be presented by a person specified in 28 CFR 
14.3, in the manner set out in 28 CFR 14.2 and 14.3, and shall be 
accompanied by as much of the appropriate information specified in 28 
CFR 14.4 as may reasonably be obtained.
    (b) Action on claims. The Director, Division of Administration, 
shall have the power to consider, ascertain, adjust, determine, 
compromise, and settle any claim referred to in, and presented in 
accordance with paragraph (a) of this section. The Chief, Security 
Staff, can process and adjust claims under $100 in accordance with 
delegated authority from the Director. Legal review is required by the 
General Counsel or designee for all claims in the amount of $5,000 or 
more, 28 CFR 14.5. Any exercise of such power shall be in accordance 
with 28 U.S.C. 2672 and 28 CFR part 14.
    (c) Payment of awards. Any award, compromise, or settlement in an 
amount of $2,500 or less made pursuant to this action will be paid by 
the Director of Administration out of appropriations available to the 
National Labor Relations Board. Payment of any award, compromise, or 
settlement in an amount in excess of $2,500 made pursuant to this 
section will be obtained in accordance with 28 CFR 14.10.

[59 FR 37159, July 21, 1994]



 Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in 
 Programs or Activities Conducted by the National Labor Relations Board

    Source: 53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 
37159, July 21, 1994.



Sec. 100.501  Purpose.

    The purpose of this regulation is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 100.502  Application.

    This regulation (Sec. Sec. 100.501-100.570) applies to all programs 
or activities conducted by the agency, except for programs or activities 
conducted outside the United States that do not involve individuals with 
handicaps in the United States.

[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July 
21, 1994, and amended at 60 FR 32587, June 23, 1995]



Sec. 100.503  Definitions.

    For purposes of this regulation, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.

[[Page 9]]

    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical or mental 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
and drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, an individual with handicaps who is a 
member of a class of persons otherwise entitled by statute, regulation, 
or agency policy to receive education services from the agency;
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or

[[Page 10]]

to achieve a level of accomplishment, an individual with handicaps who 
meets the essential eligibility requirements and who can achieve the 
purpose of the program or activity without modifications in the program 
or activity that the agency can demonstrate would result in a 
fundamental alteration in its nature;
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this regulation by Sec. 100.540.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this regulation, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally assisted 
programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.

[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July 
21, 1994, and amended at 60 FR 32587, June 23, 1995]



Sec. Sec. 100.504-100.509  [Reserved]



Sec. 100.510  Self-evaluation.

    (a) The agency shall, by September 6, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this regulation and, to the extent modification 
of any such policies and practices is required, the agency shall proceed 
to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion 
of the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 100.511  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this regulation and its 
applicability to the programs or activities conducted by the agency, and 
make such information available to them in such manner as the head of 
the agency finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this regulation.



Sec. Sec. 100.512-100.529  [Reserved]



Sec. 100.530  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit,

[[Page 11]]

or to reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this regulation.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this regulation.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec. 100.531-100.539  [Reserved]



Sec. 100.540  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subject to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.



Sec. 100.541-100.548  [Reserved]



Sec. 100.549  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 100.550, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from

[[Page 12]]

participation in, or otherwise be subjected to discrimination under any 
program or activity conducted by the agency.

[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July 
21, 1994, and amended at 60 FR 32587, June 23, 1995]



Sec. 100.550  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 100.550(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with handicaps. The agency is 
not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
The agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 100.550(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to individuals 
with handicaps. In cases where a physical alteration to an historic 
property is not required because of Sec. 100.550(a) (2) or (3), 
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by November 7, 1988, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by September 6, 1991, but in any event as expeditiously as 
possible.

[[Page 13]]

    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by March 6, 1989, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall provide 
an opportunity to interested persons, including individuals with 
handicaps or organizations representing individuals with handicaps, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July 
21, 1994, and amended at 60 FR 32587, June 23, 1995]



Sec. 100.551  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 100.552-100.559  [Reserved]



Sec. 100.560  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 100.560 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency

[[Page 14]]

resources available for use in the funding and operation of the 
conducted program or activity and must be accompanied by a written 
statement of the reasons for reaching that conclusion. If an action 
required to comply with this section would result in such an alteration 
or such burdens, the agency shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with handicaps 
receive the benefits and services of the program or activity.

[53 FR 25884 and 25885, July 8, 1988. Redesignated at 59 FR 37159, July 
21, 1994, and amended at 60 FR 32587, June 23, 1995]



Sec. Sec. 100.561-100.569  [Reserved]



Sec. 100.570  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director of Administration shall be responsible for 
coordinating implementation of this section. Complaints may be sent to 
Director of Administration, National Labor Relations Board, 1099 
Fourteenth Street NW., Washington, DC 20570.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 100.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[53 FR 25884 and 25885, July 8, 1988, as amended at 53 FR 25884, July 8, 
1988. Redesignated and amended at 59 FR 37159, July 21, 1994]

[[Page 15]]



Sec. Sec. 100.571-100.599  [Reserved]



PART 101_STATEMENTS OF PROCEDURES--Table of Contents




                       Subpart A_General Statement

Sec.
101.1 General statement.

Subpart B_Unfair Labor Practice Cases Under Section 10 (a) to (i) of the 
                   Act and Telegraph Merger Act Cases

101.2 Initiation of unfair labor practice cases.
101.3 [Reserved]
101.4 Investigation of charges.
101.5 Withdrawal of charges.
101.6 Dismissal of charges and appeals to the General Counsel.
101.7 Settlements.
101.8 Complaints.
101.9 Settlement after issuance of complaint.
101.10 Hearings.
101.11 Administrative law judge's decision.
101.12 Board decision and order.
101.13 Compliance with Board decision and order.
101.14 Judicial review of Board decision and order.
101.15 Compliance with court judgment.
101.16 Backpay proceedings.

    Subpart C_Representation Cases Under Section 9(c) of the Act and 
  Petitions for Clarification of Bargaining Units and for Amendment of 
              Certifications Under Section 9(b) of the Act

101.17 Initiation of representation cases and petitions for 
          clarification and amendment.
101.18 Investigation of petition.
101.19 Consent adjustments before formal hearing.
101.20 Formal hearing.
101.21 Procedure after hearing.

Subpart D_Unfair Labor Practice and Representation Cases Under Sections 
                       8(b)(7) and 9(c) of the Act

101.22 Initiation and investigation of a case under section 8(b)(7).
101.23 Initiation and investigation of a petition in connection with a 
          case under section 8(b)(7).
101.24 Final disposition of a charge which has been held pending 
          investigation of the petition.
101.25 Appeal from the dismissal of a petition, or from the refusal to 
          process it under the expedited procedure.

  Subpart E_Referendum Cases Under Section 9(e) (1) and (2) of the Act

101.26 Initiation of rescission of authority cases.
101.27 Investigation of petition; withdrawals and dismissals.
101.28 Consent agreements providing for election.
101.29 Procedure respecting election conducted without hearing.
101.30 Formal hearing and procedure respecting election conducted after 
          hearing.

  Subpart F_Jurisdictional Dispute Cases Under Section 10(k) of the Act

101.31 Initiation of proceedings to hear and determine jurisdictional 
          disputes under section 10(k).
101.32 Investigation of charges; withdrawal of charges; dismissal of 
          charges and appeals to Board.
101.33 Initiation of formal action; settlement.
101.34 Hearing.
101.35 Procedure before the Board.
101.36 Compliance with determination; further proceedings.

       Subpart G_Procedure Under Section 10 (j) and (l) of the Act

101.37 Application for temporary relief or restraining orders.
101.38 Change of circumstances.

   Subpart H_Advisory Opinions and Declaratory Orders Regarding Board 
                              Jurisdiction

101.39 Initiation of advisory opinion case.
101.40 Proceedings following the filing of the petition.
101.41 Informal procedures for obtaining opinions on jurisdictional 
          questions.
101.42 Procedures for obtaining declaratory orders of the Board.
101.43 Proceedings following the filing of the petition.

    Authority: Sec. 6 of the National Labor Relations Act, as amended 
(29 U.S.C. 151, 156), and sec. 552(a) of the Administrative Procedure 
Act (5 U.S.C. 552(a)). Section 101.14 also issued under sec. 2112(a)(1) 
of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).

    Source: 52 FR 23968, June 26, 1987, unless otherwise noted.



                       Subpart A_General Statement



Sec. 101.1  General statement.

    The following statements of the general course and method by which 
the

[[Page 16]]

Board's functions are channeled and determined are issued and published 
pursuant to 5 U.S.C. 552(a)(1)(B).



Subpart B_Unfair Labor Practice Cases Under Section 10 (a) to (i) of the 
                   Act and Telegraph Merger Act Cases



Sec. 101.2  Initiation of unfair labor practice cases.

    The investigation of an alleged violation of the National Labor 
Relations Act is initiated by the filing of a charge, which must be in 
writing and signed, and must either be notarized or must contain a 
declaration by the person signing it, under the penalties of the 
Criminal Code, that its contents are true and correct to the best of the 
persons' knowledge and belief. The charge is filed with the Regional 
Director for the Region in which the alleged violations have occurred or 
are occurring. A blank form for filing such charge is supplied by the 
Regional Office upon request. The charge contains the name and address 
of the person against whom the charge is made and a statement of the 
facts constituting the alleged unfair labor practices.



Sec. 101.3  [Reserved]



Sec. 101.4  Investigation of charges.

    When the charge is received in the Regional Office it is filed, 
docketed, and assigned a case number. The Regional Director may cause a 
copy of the charge to be served on the person against whom the charge is 
made, but timely service of a copy of the charge within the meaning of 
the proviso to section 10(b) of the Act is the exclusive responsibility 
of the charging party and not of the Regional Director. The Regional 
Director requests the person filing the charge to submit promptly 
evidence in its support. As part of the investigation hereinafter 
mentioned, the person against whom the charge is filed, hereinafter 
called the respondent, is asked to submit a statement of position in 
respect to the allegations. The case is assigned for investigation to a 
member of the field staff, who interviews representatives of the parties 
and other persons who have knowledge as to the charge, as is deemed 
necessary. In the investigation and in all other stages of the 
proceedings, charges alleging violations of section 8(b)(4) (A), (B), 
and (C), charges alleging violations of section 8(b)(4)(D) in which it 
is deemed appropriate to seek injunctive relief under section 10(1) of 
the Act, and charges alleging violations of section 8(b)(7) or 8(e) are 
given priority over all other cases in the office in which they are 
pending except cases of like character; and charges alleging violations 
of sections 8(a)(3) or 8(b)(2) are given priority over all other cases 
except cases of like character and cases under section 10(1) of the Act. 
The Regional Director may exercise discretion to dispense with any 
portion of the investigation described in this section as appears 
necessary in consideration of such factors as the amount of time 
necessary to complete a full investigation, the nature of the 
proceeding, and the public interest. After investigation, the case may 
be disposed of through informal methods such as withdrawal, dismissal, 
or settlement; or the case may necessitate formal methods of 
disposition. Some of the informal methods of handling unfair labor 
practice cases will be stated first.



Sec. 101.5  Withdrawal of charges.

    If investigation reveals that there has been no violation of the 
National Labor Relations Act or the evidence is insufficient to 
substantiate the charge, the Regional Director recommends withdrawal of 
the charge by the person who filed. Withdrawal may also be requested on 
the initiative of the complainant. If the complainant accepts the 
recommendation of the Regional Director or requests withdrawal, the 
respondent is immediately notified of the withdrawal of the charge.



Sec. 101.6  Dismissal of charges and appeals to the General Counsel.

    If the complainant refuses to withdraw the charge as recommended, 
the Regional Director dismisses the charge. The Regional Director 
thereupon informs the parties of this section, together with a simple 
statement of the grounds therefor, and the complainant's right of appeal 
to the General Counsel in Washington, DC, within 14 days. If the 
complainant appeals to

[[Page 17]]

the General Counsel, the entire file in the case is sent to Washington, 
DC, where the case is fully reviewed by the General Counsel with staff 
assistance. Oral presentation of the appeal issues may be permitted a 
party on timely written request, in which event the other parties are 
notified and afforded a like opportunity at another appropriate time. 
Following such review, the General Counsel may sustain the Regional 
Director's dismissal, stating the grounds of affirmance, or may direct 
the Regional Director to take further action.



Sec. 101.7  Settlements.

    Before any complaint is issued or other formal action taken, the 
Regional Director affords an opportunity to all parties for the 
submission and consideration of facts, argument, offers of settlement, 
or proposals of adjustment, except where time, the nature of the 
proceeding, and the public interest do not permit. Normally prehearing 
conferences are held, the principal purpose of which is to discuss and 
explore such submissions and proposals of adjustment. The Regional 
Office provides Board-prepared forms for such settlment agreements, as 
well as printed notices for posting by the respondent. These agreements, 
which are subject to the approval of the Regional Director, provide for 
an appeal to the General Counsel, as described in Sec. 101.6, by a 
complainant who will not join in a settlement or adjustment deemed 
adequate by the Regional Director. Proof of compliance is obtained by 
the Regional Director before the case is closed. If the respondent fails 
to perform the obligations under the informal agreement, the Regional 
Director may determine to institute formal proceedings.



Sec. 101.8  Complaints.

    If the charge appears to have merit and efforts to dispose of it by 
informal adjustment are unsuccessful, the Regional Director institutes 
formal action by issuance of a complaint and notice of hearing. In 
certain types of cases, involving novel and complex issues, the Regional 
Director, at the discretion of the General Counsel, must submit the case 
for advice from the General Counsel before issuing a complaint. The 
complaint, which is served on all parties, sets forth the facts upon 
which the Board bases its jurisidiction and the facts relating to the 
alleged violations of law by the respondent. The respondent must file an 
answer to the complaint within 14 days of its receipt, setting forth a 
statement of its defense.



Sec. 101.9  Settlement after issuance of complaint.

    (a) Even though formal proceedings have begun, the parties again 
have full opportunity at every stage to dispose of the case by amicable 
adjustment and in compliance with the law. Thus, after the complaint has 
been issued and a hearing scheduled or commenced, the attorney in charge 
of the case and the Regional Director afford all parties every 
opportunity for the submission and consideration of facts, argument, 
offers of settlement, or proposals of adjustment, except where time, the 
nature of the proceeding, and the public interest do not permit.
    (b)(1) After the issuance of a complaint, the Agency favors a formal 
settlement agreement, which is subject to the approval of the Board in 
Washington, DC. In such an agreement, the parties agree to waive their 
right to hearing and agree further that the Board may issue an order 
requiring the respondent to take action appropriate to the terms of the 
settlement. Ordinarily the formal settlement agreement also contains the 
respondent's consent to the Board's application for the entry of a 
judgment by the appropriate circuit court of appeals enforcing the 
Board's order.
    (2) In some cases, however, the Regional Director, who has authority 
to withdraw the complaint before the hearing (Sec. 102.18), may 
conclude that an informal settlement agreement of the type described in 
Sec. 101.7 is appropriate. Such agreement is not subject to approval by 
the Board and does not provide for a Board order. It provides for the 
withdrawal of the complaint.
    (c)(1) If after issuance of a complaint but before opening of the 
hearing, the charging party will not join in a settlement tentatively 
agreed upon by the Regional Director, the respondent, and

[[Page 18]]

any other parties whose consent may be required, the Regional Director 
serves a copy of the proposed settlement agreement on the charging party 
with a brief written statement of the reasons for proposing its 
approval. Within 7 days after service of these documents, the charging 
party may file with the Regional Director a written statement of any 
objections to the proposed settlement. Such objections will be 
considered by the Regional Director in determining whether to approve 
the proposed settlement. If the settlement is approved by the Regional 
Director notwithstanding the objections, the charging party is so 
informed and provided a brief written statement of the reasons for the 
approval.
    (2) If the settlement agreement approved by the Regional Director is 
a formal one, providing for the entry of a Board order, the settlement 
agreement together with the charging party's objections and the Regional 
Director's written statements are submitted to Washington, DC, where 
they are reviewed by the General Counsel. If the General Counsel decides 
to approve the settlement agreement, the charging party is so informed 
and the agreement and accompanying documents are submitted to the Board, 
upon whose approval the settlement is contingent. Within 7 days after 
service of notice of submission of the settlement agreement to the 
Board, the charging party may file with the Board in Washington, DC, a 
further statement in support of objections to the settlement agreement.
    (3) If the settlement agreement approved by the Regional Director is 
an informal one, providing for the withdrawal of the complaint, the 
charging party may appeal the Regional Director's action to the General 
Counsel, as provided in Sec. of the Board's Rules and Regulations.
    (d)(1) If the settlement occurs after the opening of the hearing and 
before issuance of the administrative law judge's decision and there is 
an all-party informal settlement, the request for withdrawal of the 
complaint must be submitted to the administrative law judge for 
approval. If the all-party settlement is a formal one, final approval 
must come from the Board. If any party will not join in the settlement 
agreed to by the other parties, the administrative law judge will give 
such party an opportunity to state on the record or in writing its 
reasons for opposing the settlement.
    (2) If the administrative law judge decides to accept or reject the 
proposed settlement, any party aggrieved by such ruling may ask for 
leave to appeal to the Board as provided in Sec. 102.26.
    (e)(1) In the event the respondent fails to comply with the terms of 
a settlement stipulation, upon which a Board order and court judgment 
are based, the Board may petition the court to adjudge the respondent in 
contempt. If the respondent refuses to comply with the terms of a 
settlement stipulation providing solely for the entry of a Board order, 
the Board may petition the court for enforcement of its order pursuant 
to section 10 of the National Labor Relations Act.
    (2) In the event the respondent fails to comply with the terms of an 
informal settlement agreement, the Regional Director may set the 
agreement aside and institute further proceedings.



Sec. 101.10  Hearings.

    (a) Except in extraordinary situations the hearing is open to the 
public and usually conducted in the Region where the charge originated. 
A duly designated administrative law judge presides over the hearing. 
The Government's case is conducted by an attorney attached to the 
Board's Regional Office, who has the responsibility of presenting the 
evidence in support of the complaint. The rules of evidence applicable 
in the district courts of the United States under the Rules of Civil 
Procedure adopted by the Supreme Court are, so far as practicable, 
controlling. Counsel for the General Counsel, all parties to the 
proceeding, and the administrative law judge have the power to call, 
examine, and cross-examine witnesses and to introduce evidence into the 
record. They may also submit briefs, engage in oral argument, and submit 
proposed findings and conclusions to the administrative law judge. The 
attendance and testimony

[[Page 19]]

of witnesses and the production of evidence material to any matter under 
investigation may be compelled by subpoena.
    (b) The functions of all administrative law judges and other Board 
agents or employees participating in decisions in conformity with 
section 8 of the Administrative Procedure Act (5 U.S.C. 557) are 
conducted in an impartial manner and any such administrative law judge, 
agent, or employee may at any time withdraw if he or she deems himself 
or herself disqualified because of bias or prejudice. The Board's 
attorney has the burden of proof of violations of section 8 of the 
National Labor Relations Act and section 222(f) of the Telegraph Merger 
Act. In connection with hearings subject to the provisions of section 7 
of the Administrative Procedure Act (5 U.S.C. 556):
    (1) No sanction is imposed or rule or order issued except upon 
consideration of the whole record or such portions thereof as may be 
cited by any party and as supported by and in accordance with the 
preponderance of the reliable, probative, and substantial evidence.
    (2) Every party has the right to present its case or defense by oral 
or documentary evidence, to submit rebuttal evidence, and to conduct 
such cross-examination as may be required for a full and true disclosure 
of the facts.
    (3) Where any decision rests on official notice of a material fact 
not appearing in the evidence in the record, any party is on timely 
request afforded a reasonable opportunity to show the contrary.
    (4) Subject to the approval of the administrative law judge, all 
parties to the proceeding voluntarily may enter into a stipulation 
dispensing with a verbatim written transcript of record of the oral 
testimony adduced at the hearing and providing for the waiver by the 
respective parties of their right to file with the Board exceptions to 
the findings of fact (but not to conclusions of law or recommended 
orders) in the administrative law judge's decision.



Sec. 101.11  Administrative law judge's decision.

    (a) At the conclusion of the hearing the administrative law judge 
prepares a decision stating findings of fact and conclusions, as well as 
the reasons for the determinations on all material issues, and making 
recommendations as to action which should be taken in the case. The 
administrative law judge may recommend dismissal or sustain the 
complaint, in whole or in part, and recommend that the respondent cease 
and desist from the unlawful acts found and take action to remedy their 
effects.
    (b) The administrative law judge's decision is filed with the Board 
in Washington, DC, and copies are simultaneously served on each of the 
parties. At the same time the Board, through its Executive Secretary, 
issues and serves on each of the parties an order transferring the case 
to the Board. The parties may accept and comply with the administrative 
law judge's recommended order, which, in the absence of exceptions, 
shall become the order of the Board. Or, the parties or counsel for the 
Board may file exceptions to the administrative law judge's decision 
with the Board. Whenever any party files exceptions, any other party may 
file an answering brief limited to questions raised in the exceptions 
and/or may file cross-exceptions relating to any portion of the 
administrative law judge's decision. Cross-exceptions may be filed only 
by a party who has not previously filed exceptions. Whenever any party 
files cross-exceptions, any other party may file an answering brief to 
the cross-exceptions. The parties may request permission to appear and 
argue orally before the Board in Washington, DC. They may also submit 
proposed findings and conclusions to the Board.



Sec. 101.12  Board decision and order.

    (a) If any party files exceptions to the administrative law judge's 
decision, the Board, with the assistance of the staff counsel to each 
Board Member who function in much the same manner as law clerks do for 
judges, reviews the entire record, including the administrative law 
judge's decision and recommendations, the exceptions thereto, the 
complete transcript of evidence, and the exhibits, briefs, and 
arguments. The Board does not consult with members of the administrative

[[Page 20]]

law judge's staff of the division of judges or with any agent of the 
General Counsel in its deliberations. It then issues its decision and 
order in which it may adopt, modify, or reject the findings and 
recommendations of the administrative law judge. The decision and order 
contains detailed findings of fact, conclusions of law, and basic 
reasons for decision on all material issues raised, and an order either 
dismissing the complaint in whole or in part or requiring the respondent 
to cease and desist from its unlawful practices and to take appropriate 
affirmative action.
    (b) If no exceptions are filed, the administrative law judge's 
decision and recommended order automatically become the decision and 
order of the Board pursuant to section 10(c) of the Act. All objections 
and exceptions, whether or not previously made during or after the 
hearing, are deemed waived for all purposes.



Sec. 101.13  Compliance with Board decision and order.

    (a) Shortly after the Board's decision and order is issued the 
Director of the Regional Office in which the charge was filed 
communicates with the respondent for the purpose of obtaining 
compliance. Conferences may be held to arrange the details necessary for 
compliance with the terms of the order.
    (b) If the respondent effects full compliance with the terms of the 
order, the Regional Director submits a report to that effect to 
Washington, DC, after which the case may be closed. Despite compliance, 
however, the Board's order is a continuing one; therefore, the closing 
of a case on compliance is necessarily conditioned upon the continued 
observance of that order; and in some cases it is deemed desirable, 
notwithstanding compliance, to implement the order with an enforcing 
court judgment. Subsequent violations of the order may become the basis 
of further proceedings.



Sec. 101.14  Judicial review of Board decision and order.

    If the respondent does not comply with the Board's order, or the 
Board deems it desirable to implement the order with a court judgment, 
the Board may petition the appropriate Federal court for enforcement. 
Or, the respondent or any person aggrieved by a final order of the Board 
may petition the circuit court of appeals to review and set aside the 
Board's order. If a petition for review is filed, the respondent or 
aggrieved person must ensure that the Board receives, by service upon 
its Deputy Associate General Counsel of the Appellate Court Branch, a 
court-stamped copy of the petition with the date of filing. Upon such 
review or enforcement proceedings, the court reviews the record and the 
Board's findings and order and sustains them if they are in accordance 
with the requirements of law. The court may enforce, modify, or set 
aside in whole or in part the Board's findings and order, or it may 
remand the case to the Board for further proceedings as directed by the 
court. Following the court's judgment, either the Government or the 
private party may petition the Supreme Court for review upon writ of 
certiorari. Such applications for review to the Supreme Court are 
handled by the Board through the Solicitor General of the United States.

[53 FR 24440, June 29, 1988]



Sec. 101.15  Compliance with court judgment.

    After a Board order has been enforced by a court judgment, the Board 
has the responsibility of obtaining compliance with that judgment. 
Investigation is made by the Regional Office of the respondent's efforts 
to comply. If it finds that the respondent has failed to live up to the 
terms of the court's judgment, the General Counsel may, on behalf of the 
Board, petition the court to hold the respondent in contempt of court. 
The court may order immediate remedial action and impose sanctions and 
penalties.



Sec. 101.16  Backpay proceedings.

    (a) After a Board order directing the payment of backpay has been 
issued or after enforcement of such order by a court judgment, if 
informal efforts to dispose of the matter prove unsuccessful, the 
Regional Director then has discretion to issue a ``backpay 
specification'' in the name of the Board and a

[[Page 21]]

notice of hearing before an administrative law judge, both of which are 
served on the parties involved. The specification sets forth 
computations showing gross and net backpay due and any other pertinent 
information. The respondent must file an answer within 21 days of the 
receipt of the specification, setting forth a particularized statement 
of its defense.
    (b) In the alternative, the Regional Director, under the 
circumstances specified above, may issue and serve on the parties a 
notice of hearing only, without a specification. Such notice contains, 
in addition to the time and place of hearing before an administrative 
law judge, a brief statement of the matters in controversy.
    (c) The procedure before the administrative law judge or the Board, 
whether initiated by the ``backpay specification'' or by notice of 
hearing without backpay specification, is substantially the same as that 
described in Sec. Sec. 101.10 to 101.14, inclusive.



    Subpart C_Representation Cases Under Section 9(c) of the Act and 
  Petitions for Clarification of Bargaining Units and for Amendment of 
              Certifications Under Section 9(b) of the Act



Sec. 101.17  Initiation of representation cases and petitions for 
clarification and amendment.

    The investigation of the question as to whether a union represents a 
majority of an appropriate grouping of employees is initiated by the 
filing of a petition by any person or labor organization acting on 
behalf of a substantial number of employees or by an employer when one 
or more individuals or labor organizations present a claim to be 
recognized as the exclusive bargaining representative. If there is a 
certified or currently recognized representative, any employee, or group 
of employees, or any individual or labor organization acting in their 
behalf may also file decertification petitions to test the question of 
whether the certified or recognized agent is still the representative of 
the employees. If there is a certified or currently recognized 
representative of a bargaining unit and there is no question concerning 
representation, a party may file a petition for clarification of the 
bargaining unit. If there is a unit covered by a certification and there 
is no question concerning representation, any party may file a petition 
for amendment to reflect changed circumstances, such as changes in the 
name or affiliation of the labor organization involved or in the name or 
location of the employer involved. The petition must be in writing and 
signed, and either must be notarized or must contain a declaration by 
the person signing it, under the penalties of the Criminal Code, that 
its contents are true and correct to the best of his or her knowledge 
and belief. It is filed with the Regional Director for the Region in 
which the proposed or actual bargaining unit exists. Petition forms, 
which are supplied by the Regional Office upon request, provide, among 
other things, for a description of the contemplated or existing 
appropriate bargaining unit, the approximate number of employees 
involved, and the names of all labor organizations which claim to 
represent the employees. If a petition is filed by a labor organization 
seeking certification, or in the case of a petition to decertify a 
certified or recognized bargaining agent, the petitioner must supply, 
within 48 hours after filing but in no event later than the last day on 
which the petition might timely be filed, evidence of representation. 
Such evidence is usually in the form of cards, which must be dated, 
authorizing the labor organization to represent the employees or 
authorizing the petitioner to file a decertification petition. If a 
petition is filed by an employer, the petitioner must supply, within 48 
hours after filing, proof of demand for recognition by the labor 
organization named in the petition and, in the event the labor 
organization named is the incumbent representative of the unit involved, 
a statement of the objective considerations demonstrating reasonable 
grounds for believing that the labor organization has lost its majority 
status.

[[Page 22]]



Sec. 101.18  Investigation of petition.

    (a) Upon receipt of the petition in the Regional Office, it is 
docketed and assigned to a member of the staff, usually a field 
examiner, for investigation. The field examiner conducts an 
investigation to ascertain (1) whether the employer's operations affect 
commerce within the meaning of the Act, (2) the appropriateness of the 
unit of employees for the purposes of collective bargaining and the 
existence of a bona fide question concerning representation within the 
meaning of the Act, (3) whether the election would effectuate the 
policies of the Act and reflect the free choice of employees in the 
appropriate unit, and (4) whether, if the petitioner is a labor 
organization seeking recognition, there is a sufficient probability, 
based on the evidence of representation of the petitioner, that the 
employees have selected it to represent them. The evidence of 
representation submitted by the petitioning labor organization or by the 
person seeking decertification is ordinarily checked to determine the 
number or proportion of employees who have designated the petitioner, it 
being the Board's administrative experience that in the absence of 
special factors the conduct of an election serves no purpose under the 
statute unless the petitioner has been designated by at least 30 percent 
of the employees. However, in the case of a petition by an employer, no 
proof of representation on the part of the labor organization claiming a 
majority is required and the Regional Director proceeds with the case if 
other factors require it unless the labor organization withdraws its 
claim to majority representation. The field examiner, or other member of 
the staff, attempts to ascertain from all interested parties whether or 
not the grouping or unit of employees described in the petition 
constitutes an appropriate bargaining unit. The petition may be amended 
at any time prior to hearing and may be amended during the hearing in 
the discretion of the hearing officer upon such terms as he or she deems 
just.
    (b) The petitioner may on its own initiative request the withdrawal 
of the petition if the investigation discloses that no question of 
representation exists within the meaning of the statute, because, among 
other possible reasons, the unit is not appropriate, or a written 
contract precludes further investigation at that time, or where the 
petitioner is a labor organization or a person seeking decertification 
and the showing of representation among the employees is insufficient to 
warrant an election under the 30-percent principle stated in paragraph 
(a) of this section.
    (c) For the same or similar reasons the Regional Director may 
request the petitioner to withdraw its petition. If the petitioner, 
despite the Regional Director's recommendations, refuses to withdraw the 
petition, the Regional Director then dismisses the petition, stating the 
grounds for dismissal and informing the petitioner of its right of 
appeal to the Board in Washington, DC. The petition may also be 
dismissed in the discretion of the Regional Director if the petitioner 
fails to make available necessary facts which are in its possession. The 
petitioner may within 14 days appeal from the Regional Director's 
dismissal by filing such request with the Board in Washington, DC; after 
a full review of the file with the assistance of its staff, the Board 
may sustain the dismissal, stating the grounds of its affirmance, or may 
direct the Regional Director to take further action.



Sec. 101.19  Consent adjustments before formal hearing.

    The Board has devised and makes available to the parties two types 
of informal consent procedures through which representation issues can 
be resolved without recourse to formal procedures. These informal 
arrangements are commonly referred to as consent-election agreement 
followed by Regional Director's determination, and stipulated election 
agreement followed by Board certification. Forms for use in these 
informal procedures are available in the Regional Offices.
    (a)(1) The consent-election agreement followed by the Regional 
Director's determination of representatives is one method of informal 
adjustment of representation cases. The terms of the agreement providing 
for this form of adjustment are set forth in printed forms, which are 
available upon request at the Board's Regional Offices. Under these 
terms the parties agree

[[Page 23]]

with respect to the appropriate unit, the payroll period to be used as 
the basis of eligibility to vote in an election, and the place, date, 
and hours of balloting. A Board agent arranges the details incident to 
the mechanics and conduct of the election. For example, the Board agent 
usually arranges preelection conferences in which the parties check the 
list of voters and attempt to resolve any questions of eligibility. 
Also, prior to the date of election, the holding of such election shall 
be adequately publicized by the posting of official notices in the 
establishment whenever possible or in other places, or by the use of 
other means considered appropriate and effective. These notices 
reproduce a sample ballot and outline such election details as location 
of polls, time of voting, and eligibility rules.
    (2) The actual polling is always conducted and supervised by Board 
agents. Appropriate representatives of each party may assist them and 
observe the election. As to the mechanics of the election, a ballot is 
given to each eligible voter by the Board's agents. The ballots are 
marked in the secrecy of a voting booth. The Board agents and authorized 
observers have the privilege of challenging for reasonable cause 
employees who apply for ballots.
    (3) Customarily the Board agents, in the presence and with the 
assistance of the authorized observers, count and tabulate the ballots 
immediately after the closing of the polls. A complete tally of the 
ballots is made available to the parties upon the conclusion of the 
election.
    (4) If challenged ballots are sufficient in number to affect the 
results of the election, the Regional Director conducts an investigation 
and rules on the challenges. Similarly, if objections to the conduct of 
the election are filed within 7 days after the tally of ballots has been 
prepared, the Regional Director likewise conducts an investigation and 
rules on the objections. If, after investigation, the objections are 
found to have merit, the Regional Director may void the election results 
and conduct a new election.
    (5) This form of agreement provides that the rulings of the Regional 
Director on all questions relating to the election (for example, 
eligibility to vote and the validity of challenges and objections) are 
final and binding. Also, the agreement provides for the conduct of a 
runoff election, in accordance with the provisions of the Board's Rules 
and Regulations, if two or more labor organizations appear on the ballot 
and no one choice receives the majority of the valid votes cast.
    (6) The Regional Director issues to the parties a certification of 
the results of the election, including certifications of representative 
where appropriate, with the same force and effect as if issued by the 
Board.
    (b) The stipulated election agreement followed by a Board 
determination provides that disputed matters following the agreed-upon 
election, if determinative of the results, can be the basis of a formal 
decision by the Board instead of an informal determination by the 
Regional Director, except that if the Regional Director decides that a 
hearing on objections or challenged ballots is necessary the Director 
may direct such a hearing before a hearing officer, or, if the case is 
consolidated with an unfair labor practice proceeding, before an 
administrative law judge. If a hearing is directed, such action on the 
part of the Regional Director constitutes a transfer of the case to the 
Board. Thus, except for directing a hearing, it is provided that the 
Board, rather than the Regional Director, makes the final determination 
of questions raised concerning eligibility, challenged votes, and 
objections to the conduct of the election. If challenged ballots are 
sufficient in number of affect the results of the election, the Regional 
Director conducts an investigation and issues a report on the challenges 
instead of ruling thereon, unless the Director elects to hold a hearing. 
Similarly, if objections to the conduct of the election are filed within 
7 days after the tally of ballots has been prepared, the Regional 
Director likewise conducts an investigation and issues a report instead 
of ruling on the validity of the objections, unless the Director elects 
to hold a hearing. The Regional Director's report is served on the 
parties, who may file exceptions thereto within 14 days with the Board 
in Washington, DC. The Board then reviews the entire record

[[Page 24]]

made and may, if a substantial issue is raised, direct a hearing on the 
challenged ballots or the objections to the conduct of the election. Or, 
the Board may, if no substantial issues are raised, affirm the Regional 
Director's report and take appropriate action in termination of the 
proceedings. If a hearing is ordered by the Regional Director or the 
Board on the challenged ballots or objections, all parties are heard and 
a report containing findings of fact and recommendations as to the 
disposition of the challenges or objections, or both, and resolving 
issues of credibility is issued by the hearing officer and served on the 
parties, who may file exceptions thereto within 14 days with the Board 
in Washington, DC. The record made on the hearing is reviewed by the 
Board with the assistance of its staff counsel and a final determination 
made thereon. If the objections are found to have merit, the election 
results may be voided and a new election conducted under the supervision 
of the Regional Director. If the union has been selected as the 
representative, the Board or the Regional Director, as the case may be, 
issues its certification and the proceeding is terminated. If upon a 
decertification or employer petition the union loses the election, the 
Board or the Regional Director, as the case may be, certifies that the 
union is not the chosen representative.



Sec. 101.20  Formal hearing.

    (a) If no informal adjustment of the question concerning 
representation has been effected and it appears to the Regional Director 
that formal action is necessary, the Regional Director will institute 
formal proceedings by issuance of a notice of hearing on the issues, 
which is followed by a decision and direction of election or dismissal 
of the case. In certain types of cases, involving novel or complex 
issues, the Regional Director may submit the case for advice to the 
Board before issuing notice of hearing.
    (b) The notice of hearing, together with a copy of the petition, is 
served on the unions and employer filing or named in the petition and on 
other known persons or labor organizations claiming to have been 
designated by employees involved in the proceeding.
    (c) The hearing, usually open to the public, is held before a 
hearing officer who normally is an attorney or field examiner attached 
to the Regional Office but may be another qualified Agency official. The 
hearing, which is nonadversary in character, is part of the 
investigation in which the primary interest of the Board's agents is to 
ensure that the record contains as full a statement of the pertinent 
facts as may be necessary for determination of the case. The parties are 
afforded full opportunity to present their respective positions and to 
produce the significant facts in support of their contentions. In most 
cases a substantial number of the relevant facts are undisputed and 
stipulated. The parties are permitted to argue orally on the record 
before the hearing officer.



Sec. 101.21  Procedure after hearing.

    (a) Pursuant to section 3(b) of the Act, the Board has delegated to 
its Regional Directors its powers under section 9 of the Act to 
determine the unit appropriate for the purpose of collective bargaining, 
to investigate and provide for hearings and determine whether a question 
of representation exists, and to direct an election or take a secret 
ballot under subsection (c) or (e) of section 9 and certify the results 
thereof. These powers include the issuance of such decisions, orders, 
rulings, directions, and certifications as are necessary to process any 
representation or deauthorization petition. Thus, by way of illustration 
and not of limitation, the Regional Director may dispose of petitions by 
administrative dismissal or by decision after formal hearing; pass upon 
rulings made at hearings and requests for extensions of time for filing 
of briefs; rule on objections to elections and challenged ballots in 
connection with elections Directed by the Regional Director or the 
Board, after administrative investigation or fomal hearing; rule on 
motions to amend or rescind any certification issued after the effective 
date of the delegation; and entertain motions for oral argument. The 
Regional Director may at any time transfer the case to the Board for 
decision, but until such action is taken, it will be presumed that the 
Regional Director will decide the case. In

[[Page 25]]

the event the Regional Director decides the issues in a case, the 
decision is final subject to the review procedure set forth in the 
Board's Rules and Regulations.
    (b) Upon the close of the hearing, the entire record in the case is 
forwarded to the Regional Director or, upon issuance by the Regional 
Director of an order transferring the case, to the Board in Washington, 
DC. The hearing officer also transmits an analysis of the issues and the 
evidence, but makes no recomendations in regard to resolution of the 
issues. All parties may file briefs with the Regional Director or, if 
the case is transferred to the Board at the close of the hearing, with 
the Board, within 7 days after the close of the hearing. If the case is 
transferred to the Board after the close of the hearing, briefs may be 
filed with the Board within the time prescribed by the Regional 
Director. The parties may also request to be heard orally. Because of 
the nature of the proceedings, however, permission to argue orally is 
rarely granted. After review of the entire case, the Regional Director 
or the Board issues a decision, either dismissing the petition or 
directing that an election be held. In the latter event, the election is 
conducted under the supervision of the Regional Director in the manner 
already described in Sec. 101.19.
    (c) With respect to objections to the conduct of the election and 
challenged ballots, the Regional Director has discretion (1) to issue a 
report on such objections and/or challenged ballots and transmit the 
issues to the Board for resolution, as in cases involving stipulated 
elections to be followed by Board certifications, or (2) to decide the 
issues on the basis of the administrative investigation or after a 
hearing, with the right to transfer the case to the Board for decision 
at any time prior to disposition of the issues on the merits. In the 
event the Regional Director adopts the first procedure, the parties have 
the same rights, and the same procedure is followed, as has already been 
described in connection with the postelection procedures in cases 
involving stipulated elections to be followed by Board certifications. 
In the event the Regional Director adopts the second procedure, the 
parties have the same rights, and the same procedure is followed, as has 
already been described in connection with hearings before elections.
    (d) The parties have the right to request review of any final 
decision of the Regional Director, within the times set forth in the 
Board's Rules and Regulations, on one or more of the grounds specified 
therein. Any such request for review must be a self-contained document 
permitting the Board to rule on the basis of its contents without the 
necessity of recourse to the record, and must meet the other 
requirements of the Board's Rules and Regulations as to its contents. 
The Regional Director's action is not stayed by the filing of such a 
request or the granting of review, unless otherwise ordered by the 
Board. Thus, the Regional Director may proceed immediately to make any 
necessary arrangements for an election, including the issuance of a 
notice of election. However, unless a waiver is filed, the Director will 
normally not schedule an election until a date between the 25th and 30th 
days after the date of the decision, to permit the Board to rule on any 
request for review which may be filed. As to administrative dismissals 
prior to the close of hearing, see Sec. 101.18(c).
    (e) If the election involves two or more labor organizations and if 
the election results are inconclusive because no choice on the ballot 
received the majority of valid votes cast, a runoff election is held as 
provided in the Board's Rules and Regulations.



Subpart D_Unfair Labor Practice and Representation Cases Under Sections 
                       8(b)(7) and 9(c) of the Act



Sec. 101.22  Initiation and investigation of a case under section 8(b)(7).

    (a) The investigation of an alleged violation of section 8(b)(7) of 
the Act is initiated by the filing of a charge. The manner of filing 
such charge and the contents thereof are the same as described in Sec. 
101.2. In some cases, at the time of the investigation of the charge, 
there may be pending a representation petition involving the employees 
of the employer named in the charge. In those

[[Page 26]]

cases, the results of the investigation of the charge will determine the 
cause of the petition.
    (b) The investigation of the charge is conducted in accordance with 
the provisions of Sec. 101.4, insofar as they are applicable. If the 
investigation reveals that there is merit in the charge, a complaint is 
issued as described in Sec. 101.8, and an application is made for an 
injunction under section 10(1) of the Act, as described in Sec. 101.37. 
If the investigation reveals that there is no merit in the charge, the 
Regional Director, absent a withdrawal of the charge, dismisses it, 
subject to appeal to the General Counsel. However, if the investigation 
reveals that issuance of a complaint may be warranted but for the 
pendency of a representation petition involving the employees of the 
employer named in the charge, action on the charge is suspended pending 
the investigation of the petition as provided in Sec. 101.23.



Sec. 101.23  Initiation and investigation of a petition in connection 
with a case under section 8(b)(7).

    (a) A representation petition \1\ involving the employees of the 
employer named in the charge is handled under an expedited procedure 
when the investigation of the charge has revealed that:
---------------------------------------------------------------------------

    \1\ The manner of filing of such petition and the contents thereof 
are the same as described in Sec. 101.17, except that the petitioner is 
not required to allege that a claim was made on the employer for 
recognition or that the union represents a substantial number of 
employees.
---------------------------------------------------------------------------

    (1) The employer's operations affect commerce within the meaning of 
the Act;
    (2) Picketing of the employer is being conducted for an object 
proscribed by section 8(b)(7) of the Act;
    (3) Subparagraph (C) of that section of the Act is applicable to the 
picketing; and
    (4) The petition has been filed within a reasonable period of time 
not to exceed 30 days from the commencement of the picketing.

In these circumstances, the member of the Regional Director's staff to 
whom the matter has been assigned investigates the petition to ascertain 
further: the unit appropriate for collective bargaining; and whether an 
election in that unit would effectuate the policies of the Act.
    (b) If, based on such investigation, the Regional Director 
determines that an election is warranted, the Director may, without a 
prior hearing, direct that an election be held in an appropriate unit of 
employees. Any party aggrieved may file a request with the Board for 
special permission to appeal that action to the Board, but such review, 
if granted, will not, unless otherwise ordered by the Board, stay the 
proceeding. If it is determined that an election is not warranted, the 
Director dismisses the petition or makes other disposition of the 
matter. Should the Regional Director conclude that an election is 
warranted, the Director fixes the basis of eligibility of voters and the 
place, date, and hours of balloting. The mechanics of arranging the 
balloting, the other procedures for the conduct of the election, and the 
postelection proceedings are the same, insofar as appropriate, as those 
described in Sec. 101.19, except that the Regional Director's rulings 
on any objections to the conduct of the election or challenged ballots 
are final and binding, unless the Board, on an application by one of the 
parties, grants such party special permission to appeal from the 
Regional Director's rulings. The party requesting such review by the 
Board must do so promptly, in writing, and state briefly the grounds 
relied on. Such party must also immediately serve a copy on the other 
parties, including the Regional Director. Neither the request for review 
by the Board nor the Board's grant of such review operates as a stay of 
any action taken by the Regional Director, unless specifically so 
ordered by the Board. If the Board grants permission to appeal, and it 
appears to the Board that substantial and material factual issues have 
been presented with respect to the objections to the conduct of the 
election or challenged ballots, it may order that a hearing be held on 
such issues or take other appropriate action.
    (c) If the Regional Director believes, after preliminary 
investigation of the petition, that there are substantial

[[Page 27]]

issues which require determination before an election may be held, the 
Director may order a hearing on the issues. This hearing is followed by 
Regional Director or Board decision and direction of election, or other 
disposition. The procedures to be used in connection with such hearing 
and posthearing proceedings are the same, insofar as they are 
applicable, as those described in Sec. Sec. 101.20 and 101.21, except 
that the parties may not file briefs with the Regional Director or the 
Board unless special permission therefor is granted, but may state their 
respective legal positions fully on the record at the hearing, and 
except that any request for review must be filed promptly after issuance 
of the Regional Director's decision.
    (d) Should the parties so desire, they may, with the approval of the 
Regional Director, resolve the issues as to the unit, the conduct of the 
balloting, and related matters pursuant to informal consent procedures, 
as described in Sec. 101.19(a).
    (e) If a petition has been filed which does not meet the 
requirements for processing under the expedited procedures, the Regional 
Director may process it under the procedures set forth in subpart C.



Sec. 101.24  Final disposition of a charge which has been held pending 
investigation of the petition.

    (a) Upon the determination that the issuance of a direction of 
election is warranted on the petition, the Regional Director, absent 
withdrawal of the charge, dismisses it subject to an appeal to the 
General Counsel in Washington, DC.
    (b) If, however, the petition is dismissed or withdrawn, the 
investigation of the charge is resumed, and the appropriate steps 
described in Sec. 101.22 are taken with respect to it.



Sec. 101.25  Appeal from the dismissal of a petition, or from the 
refusal to process it under the expedited procedure.

    If it is determined after investigation of the representation 
petition that further proceedings based thereon are not warranted, the 
Regional Director, absent withdrawal of the petition, dismisses it, 
stating the grounds therefor. If it is determined that the petition does 
not meet the requirements for processing under the expedited procedure, 
the Regional Director advises the petitioner of the determination to 
process the petition under the procedures described in subpart C. In 
either event, the Regional Director informs all the parties of such 
action, and such action is final, although the Board may grant an 
aggrieved party permission to appeal from the Regional Director's 
action. Such party must request such review promptly, in writing, and 
state briefly the grounds relied on. Such party must also immediately 
serve a copy on the other parties, including the Regional Director. 
Neither the request for review by the Board, nor the Board's grant of 
such review, operates as a stay of the action taken by the Regional 
Director, unless specifically so ordered by the Board.



  Subpart E_Referendum Cases Under Section 9(e) (1) and (2) of the Act



Sec. 101.26  Initiation of rescission of authority cases.

    The investigation of the question as to whether the authority of a 
labor organization to make an agreement requiring membership in a labor 
organization as a condition of employment is to be rescinded is 
initiated by the filing of a petition by an employee or group of 
employees on behalf of 30 percent or more of the employees in a 
bargaining unit covered by an agreement between their employer and a 
labor organization requiring membership in such labor organization. The 
petition must be in writing and signed, and either must be notarized or 
must contain a declaration by the person signing it, under the penalties 
of the Criminal Code, that its contents are true and correct to the best 
of his knowledge and belief. It is filed with the Regional Director for 
the Region in which the alleged appropriate bargaining unit exists or, 
if the bargaining unit exists in two or more Regions, with the Regional 
Director for any of such Regions. The blank form, which is supplied by 
the Regional Office upon request, provides, among other things, for a 
description of the bargaining unit

[[Page 28]]

covered by the agreement, the approximate number of employees involved, 
and the names of any other labor organizations which claim to represent 
the employees. The petitioner must supply with the petition, or within 
48 hours after filing, evidence of authorization from the employees.



Sec. 101.27  Investigation of petition; withdrawals and dismissals.

    (a) Upon receipt of the petition in the Regional Office, it is 
filed, docketed, and assigned to a member of the staff, usually a field 
examiner, for investigation. The field examiner conducts an 
investigation to ascertain:
    (1) Whether the employer's operations affect commerce within the 
meaning of the Act,
    (2) Whether there is in effect an agreement requiring as a condition 
of employment membership in a labor organization,
    (3) Whether the petitioner has been authorized by at least 30 
percent of the employees to file such a petition, and
    (4) Whether an election would effectuate the policies of the Act by 
providing for a free expression of choice by the employees.

The evidence of designation submitted by the petitioner, usually in the 
form of cards signed by individual employees authorizing the filing of 
such a petition, is checked to determine the proportion of employees who 
desire rescission.
    (b) The petitioner may on its own initiative request the withdrawal 
of the petition if the investigation discloses that an election is 
inappropriate, because, among other possible reasons, the petitioner's 
card-showing is insufficient to meet the 30-percent statutory 
requirement referred to in subsection (a) of this section.
    (c) For the same or similar reasons the Regional Director may 
request the petitioner to withdraw its petition. If the petitioner, 
despite the Regional Director's recommendation, refuses to withdraw the 
petition, the Regional Director then dismisses the petition, stating the 
grounds for his dismissal and informing the petitioner of the right of 
appeal to the Board in Washington, DC. The petitioner may within 14 days 
appeal from the Regional Director's dismissal by filing such request 
with the Board in Washington, DC. The request shall contain a complete 
statement setting forth the facts and reasons upon which the request is 
made. After a full review of the file with the assistance of its staff, 
the Board may sustain the dismissal, stating the grounds for its 
affirmance, or may direct the Regional Director to take further action.



Sec. 101.28  Consent agreements providing for election.

    The Board makes available to the parties two types of informal 
consent procedures through which authorization issues can be resolved 
without resort to formal procedures. These informal agreements are 
commonly referred to as (a) consent-election agreement followed by 
Regional Director's determination, and (b) stipulated election agreement 
followed by Board certification. Forms for use in these informal 
procedures are available in the Regional Offices. The procedures to be 
used in connection with a consent-election agreement providing for 
Regional Director's determination and a stipulated election agreement 
providing for Board certification are the same as those already 
described in subpart C of the Statements of Procedure in connection with 
similar agreements in representation cases under section 9(c) of the 
Act, except that no provision is made for runoff elections.



Sec. 101.29  Procedure respecting election conducted without hearing.

    If the Regional Director determines that the case is an appropriate 
one for election without formal hearing, an election is conducted as 
quickly as possible among the employees and upon the conclusion of the 
election the Regional Director makes available to the parties a tally of 
ballots. The parties, however, have an opportunity to make appropriate 
challenges and objections to the conduct of the election and they have 
the same rights, and the same procedure is followed, with respect to 
objections to the conduct of the election and challenged ballots, as has 
already been described in subpart C of the Statements of Procedure in 
connection with the postelection procedures

[[Page 29]]

in representation cases under section 9(c) of the Act, except that no 
provision is made for a runoff election. If no such objections are filed 
within 7 days and if the challenged ballots are insufficient in number 
to affect the results of the election, the Regional Director issues to 
the parties a certification of the results of the election, with the 
same force and effect as if issued by the Board.



Sec. 101.30  Formal hearing and procedure respecting election conducted 
after hearing.

    (a) The procedures are the same as those described in subpart C of 
the Statements of Procedure respecting representation cases arising 
under section 9(c) of the Act. If the preliminary investigation 
indicates that there are substantial issues which require determination 
before an appropriate election may be held, the Regional Director will 
institute formal proceedings by issuance of a notice of hearing on the 
issues which, after hearing, is followed by Regional Director or Board 
decision and direction of election or dismissal. The notice of hearing 
together with a copy of the petition is served on the petitioner, the 
employer, and any other known persons or labor organizations claiming to 
have been designated by employees involved in the proceeding.
    (b) The hearing, usually open to the public, is held before a 
hearing officer who normally is an attorney or field examiner attached 
to the Regional Office but may be another qualified Agency official. The 
hearing, which is nonadversary in character, is part of the 
investigation in which the primary interest of the Board's agents is to 
insure that the record contains as full a statement of the pertinent 
facts as may be necessary for determination of the case. The parties are 
afforded full opportunity to present their respective positions and to 
produce the significant facts in support of their contentions. In most 
cases a substantial number of the relevant facts are undisputed and 
stipulated. The parties are permitted to argue orally on the record 
before the hearing officer.
    (c) Upon the close of the hearing, the entire record in the case is 
then forwarded to the Regional Director or the Board, together with an 
informal analysis by the hearing officer of the issues and the evidence 
but without recommendations. All parties may file briefs with the 
Regional Director or the Board within 7 days after the close of the 
hearing. If the case is transferred to the Board after the close of the 
hearing, briefs may be filed with the Board within the time prescribed 
by the Regional Director. The parties may also request to be heard 
orally. Because of the nature of the proceeding, however, permission to 
argue orally is rarely granted. After review of the entire case, the 
Board issues a decision either dismissing the petition or directing that 
an election be held. In the latter event, the election is conducted 
under the supervision of the Regional Director in the manner already 
described in Sec. 101.19.
    (d) The parties have the same rights, and the same procedure is 
followed, with respect to objections to the conduct of the election and 
challenged ballots as has already been described in connection with the 
postelection procedures in representation cases under section 9(c) of 
the Act.



  Subpart F_Jurisdictional Dispute Cases Under Section 10(k) of the Act



Sec. 101.31  Initiation of proceedings to hear and determine jurisdictional 
disputes under section 10(k).

    The investigation of a jurisdictional dispute under section 10(k) is 
initiated by the filing of a charge, as described in Sec. 101.2, by any 
person alleging a violation of paragraph (4)(D) of section 8(b). As soon 
as possible after a charge has been filed, the Regional Director serves 
on the parties a copy of the charge together with a notice of the filing 
of such charge.



Sec. 101.32  Investigation of charges; withdrawal of charges; dismissal 
of charges and appeals to Board.

    These matters are handled as described in Sec. Sec. 101.4 to 101.7, 
inclusive. Cases involving violation of paragraph (4)(D) of section 8(b) 
in which it is deemed appropriate to seek injunctive relief of a 
district court pursuant to

[[Page 30]]

section 10(1) of the Act are given priority over all other cases in the 
office except other cases under section 10(1) of the Act and cases of 
like character.



Sec. 101.33  Initiation of formal action; settlement.

    If, after investigation, it appears that the Board should determine 
the dispute under section 10(k) of the Act, the Regional Director issues 
a notice of hearing which includes a simple statement of issues involved 
in the jurisdictional dispute and which is served on all parties to the 
dispute out of which the unfair labor practice is alleged to have 
arisen. The hearing is scheduled for not less than 10 days after service 
of the notice of the filing of the charge, except that in cases 
involving the national defense, agreement will be sought for scheduling 
of hearing on less notice. If the parties present to the Regional 
Director satisfactory evidence that they have adjusted the dispute, the 
Regional Director withdraws the notice of hearing and either permits the 
withdrawal of the charge or dismisses the charge. If the parties submit 
to the Regional Director satisfactory evidence that they have agreed 
upon methods for the voluntary adjustment of the dispute, the Regional 
Director shall defer action upon the charge and shall withdraw the 
notice of hearing if issued. The parties may agree on an arbitrator, a 
proceeding under section 9(c) of the Act, or any other satisfactory 
method to resolve the dispute. If the agreed-upon method for voluntary 
adjustment results in a determination that employees represented by a 
charged union are entitled to perform the work in dispute, the Regional 
Director dismisses the charge against that union irrespective of whether 
the employer complies with that determination.



Sec. 101.34  Hearing.

    If the parties have not adjusted the dispute or agreed upon methods 
of voluntary adjustment, a hearing, usually open to the public, is held 
before a hearing officer. The hearing is nonadversary in character, and 
the primary interest of the hearing officer is to insure that the record 
contains as full a statement of the pertinent facts as may be necessary 
for a determination of the issues by the Board. All parties are afforded 
full opportunity to present their respective positions and to produce 
evidence in support of their contentions. The parties are permitted to 
argue orally on the record before the hearing officer. At the close of 
the hearing, the case is transmitted to the Board for decision. The 
hearing officer prepares an analysis of the issues and the evidence, but 
makes no recommendations in regard to resolution of the dispute.



Sec. 101.35  Procedure before the Board.

    The parties have 7 days after the close of the hearing, subject to 
any extension that may have been granted, to file briefs with the Board 
and to request oral argument which the Board may or may not grant. 
However, in cases involving the national defense and so designated in 
the notice of hearing, the parties may not file briefs but after the 
close of the evidence may argue orally upon the record their respective 
contentions and positions, except that for good cause shown in an 
application expeditiously made to the Board in Washington, DC, after the 
close of the hearing, the Board may grant leave to file briefs in such 
time as it shall specify. The Board then considers the evidence taken at 
the hearing and the hearing officer's analysis together with any briefs 
that may be filed and the oral argument, if any, and issues its 
determination or makes other disposition of the matter.



Sec. 101.36  Compliance with determination; further proceedings.

    After the issuance of determination by the Board, the Regional 
Director in the Region in which the proceeding arose communicates with 
the parties for the purpose of ascertaining their intentions in regard 
to compliance. Conferences may be held for the purpose of working out 
details. If satisfied that the parties are complying with the 
determination, the Regional Director dismisses the charge. If not 
satisfied that the parties are complying, the Regional Director issues a 
complaint and notice of hearing, charging violation of section 
8(b)(4)(D) of the Act, and the

[[Page 31]]

proceeding follows the procedure outlined in Sec. Sec. 101.8 to 101.15, 
inclusive. However, if the Board determines that employees represented 
by a charged union are entitled to perform the work in dispute, the 
Regional Director dismisses the charge against that union irrespective 
of whether the employer complies with the determination.



       Subpart G_Procedure Under Section 10 (j) and (l) of the Act



Sec. 101.37  Application for temporary relief or restraining orders.

    Whenever it is deemed advisable to seek temporary injunctive relief 
under section 10(j) or whenever it is determined that a complaint should 
issue alleging violation of section 8(b)(4) (A), (B), or (C), or section 
8(e), or section 8(b)(7), or whenever it is appropriate to seek 
temporary injunctive relief for a violation of section 8(b)(4)(D), the 
officer or regional attorney to whom the matter has been referred will 
make application for appropriate temporary relief or restraining order 
in the district court of the United States within which the unfair labor 
practice is alleged to have occurred or within which the party sought to 
be enjoined resides or transacts business, except that such officer or 
regional attorney will not apply for injunctive relief under section 
10(l) with respect to an alleged violation of section 8(b)(7) if a 
charge under section 8(a)(2) has been filed and, after preliminary 
investigation, there is reasonable cause to believe that such charge is 
true and a complaint should issue.



Sec. 101.38  Change of circumstances.

    Whenever a temporary injunction has been obtained pursuant to 
section 10(j) and thereafter the administrative law judge hearing the 
complaint, upon which the determination to seek such injunction was 
predicated, recommends dismissal of such complaint, in whole or in part, 
the officer or regional attorney handling the case for the Board 
suggests to the district court which issued the temporary injunction the 
possible change in circumstances arising out of the findings and 
recommendations of the administrative law judge.



   Subpart H_Advisory Opinions and Declaratory Orders Regarding Board 
                              Jurisdiction



Sec. 101.39  Initiation of advisory opinion case.

    (a) The question of whether the Board will assert jurisdiction over 
a labor dispute which is the subject of a proceeding in an agency or 
court of a State or territory is initiated by the filing of a petition 
with the Board. This petition may be filed only if:
    (1) A proceeding is currently pending before such agency or court;
    (2) The petitioner is the agency or court itself; and
    (3) The relevant facts are undisputed or the agency or court has 
already made the relevant factual findings.
    (b) The petition must be in writing and signed. It is filed with the 
Executive Secretary of the Board in Washington, DC. No particular form 
is required, but the petition must be properly captioned and must 
contain the allegations required by section 102.99 of the Board's Rules 
and Regulations. None of the information sought may relate to the merits 
of the dispute. The petition may be withdrawn at any time before the 
Board issues its advisory opinion determining whether it would or would 
not assert jurisdiction on the basis of the facts before it.

[61 FR 65182, Dec. 11, 1996; 62 FR 52381, Oct. 7, 1997]



Sec. 101.40  Proceedings following the filing of the petition.

    (a) A copy of the petition is served on all other parties and the 
appropriate Regional Director by the petitioner.
    (b) Interested persons may request intervention by a written motion 
to the Board. Such intervention may be granted at the discretion of the 
Board.
    (c) Parties other than the petitioner may reply to the petition in 
writing, admitting or denying any or all of the matters asserted 
therein.
    (d) No briefs shall be filed except upon special permission of the 
Board.
    (e) After review of the entire record, the Board issues an advisory 
opinion as to whether the facts presented would or would not cause it to 
assert jurisdiction over the case if the case had been

[[Page 32]]

originally filed before it. The Board will limit its advisory opinion to 
the jurisdictional issue confronting it, and will not presume to render 
an opinion on the merits of the case or on the question of whether the 
subject matter of the dispute is governed by the Labor Management 
Relations Act.



Sec. 101.41  Informal procedures for obtaining opinions on jurisdictional 
questions.

    Although a formal petition is necessary to obtain an advisory 
opinion from the Board, other avenues are available to persons seeking 
informal and, in most cases, speedy opinions on jurisdictional issues. 
In discussion of jurisdictional questions informally with Regional 
Office personnel, information and advice concerning the Board's 
jurisdictional standards may be obtained. Such practices are not 
intended to be discouraged by the rules providing for formal advisory 
opinions by the Board, although the opinions expressed by such personnel 
are not to be regarded as binding upon the Board or the General Counsel.



Sec. 101.42  Procedures for obtaining declaratory orders of the Board.

    (a) When both an unfair labor practice charge and a representation 
petition are pending concurrently in a Regional Office, appeals from a 
Regional Director's dismissals thereof do not follow the same course. 
Appeal from the dismissal of a charge must be made to the General 
Counsel, while appeal from dismissal of a representation petition may be 
made to the Board. To obtain uniformity in disposing of such cases on 
jurisdictional grounds at the same stage of each proceeding, the General 
Counsel may file a petition for a declaratory order of the Board. Such 
order is intended only to remove uncertainty with respect to the 
question of whether the Board would assert jurisdiction over the labor 
dispute.
    (b) A petition to obtain a declaratory Board order may be filed only 
by the General Counsel. It must be in writing and signed. It is filed 
with the Executive Secretary of the Board in Washington, DC. No 
particular form is required, but the petition must be properly captioned 
and must contain the allegations required by Sec. 102.106 of the 
Board's Rules and Regulations. None of the information sought relates to 
the merits of the dispute. The petition may be withdrawn any time before 
the Board issues its declaratory order deciding whether it would or 
would not assert jurisdiction over the cases.



Sec. 101.43  Proceedings following the filing of the petition.

    (a) A copy of the petition is served on all other parties.
    (b) Interested persons may request intervention by a written motion 
to the Board. Such intervention may be granted at the discretion of the 
Board.
    (c) All other parties may reply to the petition in writing.
    (d) Briefs may be filed.
    (e) After review of the record, the Board issues a declaratory order 
as to whether it will assert jurisdiction over the cases, but it will 
not render a decision on the merits at this stage of the cases.
    (f) The declaratory Board order will be binding on the parties in 
both cases.



PART 102_RULES AND REGULATIONS, SERIES 8--Table of Contents




                          Subpart A_Definitions

Sec.
102.1 Terms defined in section 2 of the Act.
102.2 Act; Board; Board agent.
102.3 General counsel.
102.4 Region; subregion.
102.5 Regional director; officer-in-charge, regional attorney.
102.6 Administrative law judge; hearing officer.
102.7 State.
102.8 Party.

   Subpart B_Procedure Under Section 10(a) to (i) of the Act for the 
                  Prevention of Unfair Labor Practices

                                 Charge

102.9 Who may file; withdrawal and dismissal.
102.10 Where to file.
102.11 Forms; jurat; or declaration.
102.12 Contents.
102.13 [Reserved]
102.14 Service of charge.

                                Complaint

102.15 When and by whom issued; contents; service.

[[Page 33]]

102.16 Hearing; change of date or place.
102.17 Amendment.
102.18 Withdrawal.
102.19 Appeal to the general counsel from refusal to issue or reissue.

                                 Answer

102.20 Answer to complaint; time for filing; contents; allegations not 
          denied deemed admitted.
102.21 Where to file; service upon the parties; form.
102.22 Extension of time for filing.
102.23 Amendment.

                                 Motions

102.24 Motions; where to file; contents; service on other parties; 
          promptness in filing and response; default judgment 
          procedures; summary judgment procedures.
102.25 Ruling on motions.
102.26 Motions, rulings, and orders part of the record; rulings not to 
          be appealed directly to the Board without special permission; 
          requests for special permission to appeal.
102.27 Review of granting of motion to dismiss entire complaint; 
          reopening of the record.
102.28 Filing of answer or other participation in proceedings not a 
          waiver of rights.

                              Intervention

102.29 Intervention; requisites; rulings on motions to intervene.

                  Witnesses, Depositions, and Subpoenas

102.30 Examination of witnesses; deposition.
102.31 Issuance of subpoenas; petitions to revoke subpoenas; rulings on 
          claim of privilege against self-incrimination; subpoena 
          enforcement proceedings; right to inspect and copy data.
102.32 Payment of witness fees and mileage; fees of persons taking 
          depositions.

                 Transfer, Consolidation, and Severance

102.33 Transfer of charge and proceeding from region to region; 
          consolidation of proceedings in same region; severance.

                                Hearings

102.34 Who shall conduct; to be public unless otherwise ordered.
102.35 Duties and powers of administrative law judges; stipulations of 
          cases to administrative law judges or to the Board; assignment 
          and powers of settlement judges.
102.36 Unavailability of administrative law judge.
102.37 Disqualification of administrative law judge.
102.38 Rights of parties.
102.39 Rules of evidence controlling so far as practicable.
102.40 Stipulations of fact admissible.
102.41 Objection to conduct of hearing; how made; objections not waived 
          by further participation.
102.42 Filings of briefs and proposed findings with the administrative 
          law judge and oral argument at the hearing.
102.43 Continuance and adjournment.

  Administrative Law Judge's Decision and Transfer of Case to the Board

102.45 Administrative law judge's decision; contents; service; transfer 
          of the case to the Board; contents of record in case.

                Exceptions to the Record and Proceedings

102.46 Exceptions, cross-exceptions, briefs, answering briefs; time for 
          filing; where to file; service on the parties; extension of 
          time; effect of failure to include matter in exceptions; reply 
          briefs; oral arguments.
102.47 Filing of motion after transfer of case to Board.

                       Procedure Before the Board

102.48 Action of the Board upon expiration of time to file exceptions to 
          the administrative law judge's decision; decisions by the 
          Board; extraordinary postdecisional motions.
102.49 Modification or setting aside of order of Board before record 
          filed in court; action thereafter.
102.50 Hearings before Board or member thereof.
102.51 Settlement or adjustment of issues.

                          Back-Pay Proceedings

102.52 Compliance with Board order; notification of compliance 
          determination.
102.53 Review by the General Counsel of compliance determination; appeal 
          to the Board of the General Counsel's decision.
102.54 Initiation of formal compliance proceedings; issuance of 
          compliance specification and notice of hearing.
102.55 Contents of compliance specification.
102.56 Answer to compliance specification.
102.57 Extension of date of hearing.
102.58 Withdrawal.
102.59 Hearing; posthearing procedure.

Subpart C_Procedure Under Section 9(c) of the Act for the Determination 
      of Questions Concerning Representation of Employees and for 
 Clarification of Bargaining Units and for Amendment of Certifications 
                      Under Section 9(b) of the Act

102.60 Petitions.

[[Page 34]]

102.61 Contents of petition for certification; contents of petition for 
          decertification; contents of petition for clarification of 
          bargaining unit; contents of petition for amendment of 
          certification.
102.62 Consent-election agreements.
102.63 Investigation of petition by regional director; notice of 
          hearing; service of notice; withdrawal of notice.
102.64 Conduct of hearing.
102.65 Motions; interventions.
102.66 Introduction of evidence; rights of parties at hearing; 
          subpoenas.
102.67 Proceedings before the regional director; further hearing; 
          briefs; action by the regional director; appeals from action 
          by the regional director; statement in opposition to appeal; 
          transfer of case to the Board; proceedings before the Board; 
          Board action.
102.68 Record; what constitutes; transmission to Board.
102.69 Election procedure; tally of ballots; objections; certification 
          by the regional director; report on challenged ballots; report 
          on objections; exceptions; action of the Board; hearing.
102.70 Runoff election.
102.71 Dismissal of petition; refusal to proceed with petition; requests 
          for review by the Board of action of the regional director.
102.72 Filing petition with general counsel; investigation upon motion 
          of general counsel; transfer of petition and proceeding from 
          region to general counsel or to another region; consolidation 
          of proceedings in same region; severance; procedure before 
          general counsel in cases over which he has assumed 
          jurisdiction.

 Subpart D_Procedure for Unfair Labor Practice and Representation Cases 
               Under Sections 8(b)(7) and 9(c) of the Act

102.73 Initiation of proceedings.
102.74 Complaint and formal proceedings.
102.75 Suspension of proceedings on the charge where timely petition is 
          filed.
102.76 Petition; who may file; where to file; contents.
102.77 Investigation of petition by regional director; directed 
          election.
102.78 Election procedure; method of conducting balloting; postballoting 
          procedure.
102.79 Consent-election agreements.
102.80 Dismissal of petition; refusal to process petition under 
          expedited procedure.
102.81 Review by the general counsel of refusal to proceed on charge; 
          resumption of proceedings upon charge held during pendency of 
          petition; review by the general counsel of refusal to proceed 
          on related charge.
102.82 Transfer, consolidation, and severance.

    Subpart E_Procedure for Referendum Under Section 9(e) of the Act

102.83 Petition for referendum under section 9(e)(1) of the Act; who may 
          file; where to file; withdrawal.
102.84 Contents of petition to rescind authority.
102.85 Investigation of petition by regional director; consent 
          referendum; directed referendum.
102.86 Hearing; posthearing procedure.
102.87 Method of conducting balloting; postballoting procedure.
102.88 Refusal to conduct referendum; appeal to Board.

 Subpart F_Procedure To Hear and Determine Disputes Under Section 10(k) 
                               of the Act

102.89 Initiation of proceedings.
102.90 Notice of filing of charge; notice of hearing; hearing; 
          proceedings before the Board; briefs; determination of 
          dispute.
102.91 Compliance with determination; further proceedings.
102.92 Review of determination.
102.93 Alternative procedure.

 Subpart G_Procedure in Cases Under Section 10(j), (l), and (m) of the 
                                   Act

102.94 Expeditious processing of section 10(j) cases.
102.95 Priority of cases pursuant to section 10(l) and (m) of the Act.
102.96 Issuance of complaint promptly.
102.97 Expeditious processing of section 10 (l) and (m) cases in 
          successive stages.

   Subpart H_Declaratory Orders and Advisory Opinions Regarding Board 
                              Jurisdiction

102.98 Petition for advisory opinion; who may file; where to file.
102.99 Contents of petition for advisory opinion; contents of request 
          for administrative advice.
102.100 Notice of petition; service of petition.
102.101 Response to petition; service of response.
102.102 Intervention.
102.103 Proceedings before the Board; briefs; advisory opinions.
102.104 Withdrawal of petition.
102.105 Petitions for declaratory orders; who may file; where to file; 
          withdrawal.
102.106 Contents of petition for declaratory order.
102.107 Notice of petition; service of petition.

[[Page 35]]

102.108 Response to petition; service of response.
102.109 Intervention.
102.110 Proceedings before the Board; briefs; declaratory orders.

                 Subpart I_Service and Filing of Papers

102.111 Time computation.
102.112 Date of service; date of filing.
102.113 Methods of service of process and papers by the Agency; proof of 
          service.
102.114 Filing and service of papers by parties; form of papers; manner 
          and proof of filing or service; electronic filings.

           Subpart J_Certification and Signature of Documents

102.115 Certification of papers and documents.
102.116 Signature of orders.

                    Subpart K_Records and Information

102.117 Board materials and formal documents available for public 
          inspection and copying; requests for described records; time 
          limit for response; appeal from denial of request; fees for 
          document search and duplication; files and records not subject 
          to inspection.
102.118 Present and former Board employees prohibited from producing 
          files, records, etc., pursuant to subpoena ad testificandum or 
          subopena duces tecum; prohibited from testifying in regard 
          thereto; production of witnesses' statements after direct 
          testimony.

Subpart L_Post-employment Restrictions on Activities by Former Officers 
                              and Employees

102.119 Post-employee restrictions on activities by former Officers and 
          employees.

                     Subpart M_Construction of Rules

102.121 Rules to be liberally construed.

 Subpart N_Enforcement of Rights, Privileges, and Immunities Granted or 
Guaranteed Under Section 222(f), Communications Act of 1934, as Amended, 
                to Employees of Merged Telegraph Carriers

102.122 Enforcement.
102.123 Amendment or rescission of rules.

                          Subpart O_Amendments

102.124 Petitions for issuance, amendment, or repeal of rules.
102.125 Action on petition.

                    Subpart P_Ex Parte Communications

102.126 Unauthorized communications.
102.127 Definitions.
102.128 Types of on-the-record proceedings; categories of Board agents; 
          and duration of prohibition.
102.129 Communications prohibited.
102.130 Communications not prohibited.
102.131 Solicitation of prohibited communications.
102.132 Reporting of prohibited communications; penalties.
102.133 Penalties and enforcement.

 Subpart Q_Procedure Governing Manners Affecting Employment-Management 
             Agreements Under the Postal Reorganization Act

102.135 Employment-management agree- ments.

                      Subpart R_Advisory Committees

102.136 Establishment and utilization of advisory committees.

                         Subpart S_Open Meetings

102.137 Public observation of Board meetings.
102.138 Definition of meeting.
102.139 Closing of meetings; reasons therefor.
102.140 Action necessary to close meetings; record of votes.
102.141 Notice of meetings; public announcement and publication.
102.142 Transcripts, recordings or minutes of closed meetings; public 
          availability; retention.

               Subpart T_Awards of Fees and Other Expenses

102.143 ``Adversary adjudication'' defined; entitlement to award; 
          eligibility for award.
102.144 Standards for awards.
102.145 Allowable fees and expenses.
102.146 Rulemaking on maximum rates for attorney or agent fees.
102.147 Contents of application; net worth exhibit; documentation of 
          fees and expenses.
102.148 When an application may be filed; place of filing; service; 
          referral to administrative law judge; stay of proceeding.
102.149 Filing of documents; service of documents; motions for extension 
          of time.
102.150 Answer to application; reply to answer; comments by other 
          parties.
102.151 Settlement.
102.152 Further proceedings.
102.153 Administrative law judge's decision; contents; service; transfer 
          of case to the Board; contents of record in case.

[[Page 36]]

102.154 Exceptions to administrative law judge's decision; briefs; 
          action of Board.
102.155 Payment of award.

      Subpart U_Debt-Collection Procedures by Administrative Offset

102.156 Administrative offset; purpose and scope.
102.157 Definitions.
102.158 Agency requests for administrative offsets and cooperation with 
          other Federal agencies.
102.159 Exclusions.
102.160 Agency responsibilities.
102.161 Notification.
102.162 Examination and copying of records related to the claim; 
          opportunity for full explanation of the claim.
102.163 Opportunity for repayment.
102.164 Review of the obligation.
102.165 Cost shifting.
102.166 Additional administrative collection action.
102.167 Prior provision of rights with respect to debt.

Subpart V_Debt Collection Procedures by Federal Income Tax Refund Offset

102.168 Federal income tax refund offset; purpose and scope.
102.169 Definitions.
102.170 Agency referral to IRS for tax referral effect; Agency 
          responsibilities.
102.171 Cost shifting.
102.172 Minimum referral amount.
102.173 Relation to other collection efforts.
102.174 Debtor notification.
102.175 Agency review of the obligation.
102.176 Prior provision of rights with respect to debt.

       Subpart W_Misconduct by Attorneys or Party Representatives

102.177 Exclusion from hearings; Refusal of witness to answer questions; 
          Misconduct by attorneys and party representatives before the 
          Agency; Procedures for processing misconduct allegations.

Appendix A to Part 102--NLRB Official Office Hours

    Authority: Sec. 6, National Labor Relations Act, as amended (29 
U.S.C. 151, 156). Section 102.117 also issued under sec. 552(a)(4)(A) of 
the Freedom of Information Act, as amended (5 U.S.C. 552(a)(4)(A)), and 
section 552a (j) and (k) of the Privacy Act (5 U.S.C. 552a (j) and (k)). 
Sections 102.143 through 102.155 also issued under sec. 504(c)(1) of the 
Equal Access to Justice Act as amended (5 U.S.C. 504(c)(1)).

    Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted.



                          Subpart A_Definitions



Sec. 102.1  Terms defined in section 2 of the Act.

    The terms person, employer, employee, representative, labor 
organization, commerce, affecting commerce, and unfair labor practice, 
as used herein, shall have the meanings set forth in section 2 of the 
National Labor Relations Act, as amended by title I of the Labor 
Management Relations Act, 1947.



Sec. 102.2  Act; Board; Board agent.

    The term Act as used herein shall mean the National Labor Relations 
Act, as amended. The term Board shall mean the National Labor Relations 
Board and shall include any group of three or more members designated 
pursuant to section 3(b) of the Act. The term Board agent shall mean any 
member, agent, or agency of the Board, including its general counsel.



Sec. 102.3  General counsel.

    The term general counsel as used herein shall mean the general 
counsel under section 3(d) of the Act.



Sec. 102.4  Region; subregion.

    The term region as used herein shall mean that part of the United 
States or any Territory thereof fixed by the Board as a particular 
region. The term subregion shall mean that area within a region fixed by 
the Board as a particular subregion.

[29 FR 15918, Nov. 28, 1964]



Sec. 102.5  Regional director; officer-in-charge; regional attorney.

    The term regional director as used herein shall mean the agent 
designated by the Board as the regional director for a particular 
region, and shall also include any agent designated by the Board as 
officer-in-charge of a subregional office, but the officer-in-charge 
shall have only such powers, duties, and functions appertaining to 
regional directors as shall have been duly delegated to such officer-in-
charge. The term regional attorney as used herein shall mean the 
attorney designated as regional attorney for a particular region.

[29 FR 15919, Nov. 28, 1964]

[[Page 37]]



Sec. 102.6  Administrative law judge; hearing officer.

    The term administrative law judge as used herein shall mean the 
agent of the Board conducting the hearing in an unfair labor practice or 
Telegraph Merger Act proceeding. The term hearing officer as used herein 
shall mean the agent of the Board conducting the hearing in a proceeding 
under section 9 or in a dispute proceeding under section 10(k) of the 
Act.



Sec. 102.7  State.

    The term State as used herein shall include the District of Columbia 
and all States, Territories, and possessions of the United States.



Sec. 102.8  Party.

    The term party as used herein shall mean the regional director in 
whose region the proceeding is pending and any person named or admitted 
as a party, or properly seeking and entitled as of right to be admitted 
as a party, in any Board proceeding, including, without limitation, any 
person filing a charge or petition under the act, any person named as 
respondent, as employer, or as party to a contract in any proceeding 
under the act, and any labor organization alleged to be dominated, 
assisted, or supported in violation of section 8(a)(1) or 8(a)(2) of the 
Act; but nothing herein shall be construed to prevent the Board or its 
designated agent from limiting any party to participate in the 
proceedings to the extent of his interest only.



   Subpart B_Procedure Under Section 10 (a) to (i) of the Act for the 
                Prevention of Unfair Labor Practices \1\
---------------------------------------------------------------------------

    \1\ Procedure under sec. 10(j) to (l) of the Act is governed by 
subparts F and G of this part. Procedure for unfair labor practice cases 
and representation cases under sec. 8(b)(7) of the Act is governed by 
subpart D of this part.
---------------------------------------------------------------------------

                                 Charge



Sec. 102.9  Who may file; withdrawal and dismissal.

    A charge that any person has engaged in or is engaging in any unfair 
labor practice affecting commerce may be made by any person. Any such 
charge may be withdrawn, prior to the hearing, only with the consent of 
the regional director with whom such charge was filed; at the hearing 
and until the case has been transferred to the Board pursuant to Sec. 
102.45, upon motion, with the consent of the administrative law judge 
designated to conduct the hearing; and after the case has been 
transferred to the Board pursuant to Sec. 102.45, upon motion, with the 
consent of the Board. Upon withdrawal of any charge, any complaint based 
thereon shall be dismissed by the regional director issuing the 
complaint, the administrative law judge designated to conduct the 
hearing, or the Board.



Sec. 102.10  Where to file.

    Except as provided in Sec. 102.33 such charge 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 of such regions.



Sec. 102.11  Forms; jurat; or declaration.

    Such charges shall be in writing and signed, and either shall be 
sworn to before a notary public, Board agent, or other person duly 
authorized by law to administer oaths and take acknowledgments or shall 
contain a declaration by the person signing it, under the penalty of 
perjury that its contents are true and correct (see 28 U.S.C. Sec. 
1746). One original of such charge shall be filed. A party filing a 
charge by facsimile pursuant to Sec. 102.114(f) shall also file an 
original for the Agency's records, but failure to do so shall not affect 
the validity of the filing by facsimile, if otherwise proper.

[67 FR 658, Jan. 7, 2002]



Sec. 102.12  Contents.

    Such charge shall contain the following:
    (a) The full name and address of the person making the charge.
    (b) If the charge is filed by a labor organization, the full name 
and address of any national or international labor

[[Page 38]]

organization of which it is an affiliate or constituent unit.
    (c) The full name and address of the person against whom the charge 
is made (hereinafter referred to as the ``respondent'').
    (d) A clear and concise statement of the facts constituting the 
alleged unfair labor practices affecting commerce.



Sec. 102.13  [Reserved]



Sec. 102.14  Service of charge.

    (a) Charging party's obligation to serve; methods of service. Upon 
the filing of a charge, the charging party shall be responsible for the 
timely and proper service of a copy thereof upon the person against whom 
such charge is made. Service may be made personally, or by registered 
mail, certified mail, regular mail, or private delivery service. With 
the permission of the person receiving the charge, service may be made 
by facsimile transmission or by any other agreed-upon method.
    (b) Service as courtesy by Regional Director. The Regional Director 
will, as a matter of courtesy, cause a copy of such charge to be served 
by regular mail on the person against whom the charge is made. Such 
charges may, with the permission of the person receiving the charge, be 
served by the Regional Director by facsimile transmission. In this event 
the receipt printed upon the Agency's copy by the Agency's own facsimile 
machine, showing the phone number to which the charge was transmitted 
and the date and time of receipt shall be proof of service of the same. 
However, whether serving by facsimile, by regular mail, or otherwise, 
the Regional Director shall not be deemed to assume responsibility for 
such service.
    (c) Date of service of charge. In the case of service of a charge by 
mail or private delivery service, the date of service is the date of 
deposit with the post office or other carrier. In the case of service by 
other methods, including hand delivery or facsimile transmission, the 
date of service is the date of receipt.

[60 FR 56235, Nov. 8, 1995]

                                Complaint



Sec. 102.15  When and by whom issued; contents; service.

    After a charge has been filed, if it appears to the regional 
director that formal proceedings in respect thereto should be 
instituted, he shall issue and cause to be served on all other parties a 
formal complaint in the name of the Board stating the unfair labor 
practices and containing a notice of hearing before an administrative 
law judge at a place therein fixed and at a time not less than 14 days 
after the service of the complaint. The complaint shall contain:
    (a) A clear and concise statement of the facts upon which assertion 
of jurisdiction by the Board is predicated, and
    (b) A clear and concise description of the acts which are claimed to 
constitute unfair labor practices, where known, the approximate dates 
and places of such acts and the names of respondent's agents or other 
representatives by whom committed.

[51 FR 23745, July 1, 1986]



Sec. 102.16  Hearing; change of date or place.

    (a) Upon his own motion or upon proper cause shown by any other 
party, the Regional Director issuing the complaint may extend the date 
of such hearing or may change the place at which it is to be held, 
except that the authority of the Regional Director to extend the date of 
a hearing shall be limited to the following circumstances:
    (1) Where all parties agree or no party objects to extension of the 
date of hearing;
    (2) Where a new charge or charges have been filed which, if 
meritorious, might be appropriate for consolidation with the pending 
complaint;
    (3) Where negotiations which could lead to settlement of all or a 
portion of the complaint are in progress;
    (4) Where issues related to the complaint are pending before the 
General Counsel's Division of Advice or Office of Appeals; or
    (5) Where more than 21 days remain before the scheduled date of 
hearing.
    (b) In circumstances other than those set forth in subsection (a) of 
this section, motions to reschedule the hearing

[[Page 39]]

should be filed with the Division of Judges in accordance with Sec. 
102.24(a). When a motion to reschedule has been granted, the Regional 
Director issuing the complaint shall retain the authority to order a new 
date for hearing and retain the responsibility to make the necessary 
arrangements for conducting such hearing, including its location and the 
transcription of the proceedings.

[54 FR 51197, Dec. 13, 1989; 54 FR 52506, Dec. 21, 1989]



Sec. 102.17  Amendment.

    Any such complaint may be amended upon such terms as may be deemed 
just, prior to the hearing, by the regional director issuing the 
complaint; at the hearing and until the case has been transferred to the 
Board pursuant to Sec. 102.45, upon motion, by the administrative law 
judge designated to conduct the hearing; and after the case has been 
transferred to the Board pursuant to Sec. 102.45, at any time prior to 
the issuance of an order based thereon, upon motion, by the Board.



Sec. 102.18  Withdrawal.

    Any such complaint may be withdrawn before the hearing by the 
regional director on his own motion.



Sec. 102.19  Appeal to the general counsel from refusal to issue or reissue.

    (a) If, after the charge has been filed, the Regional Director 
declines to issue a complaint or, having withdrawn a complaint pursuant 
to Sec. 102.18, refuses to reissue it, he shall so advise the parties 
in writing, accompanied by a simple statement of the procedural or other 
grounds for his action. The person making the charge may obtain a review 
of such action by filing the ``Appeal Form'' with the General Counsel in 
Washington, DC, and filing a copy of the ``Appeal Form'' with the 
Regional Director, within 14 days from the service of the notice of such 
refusal to issue or reissue by the Regional Director, except as a 
shorter period is provided by Sec. 102.81. If an appeal is taken the 
person doing so should notify all other parties of his action, but any 
failure to give such notice shall not affect the validity of the appeal. 
The person may also file a statement setting forth the facts and reasons 
upon which the appeal is based. If such a statement is timely filed, the 
separate ``Appeal Form'' need not be served. A request for extension of 
time to file an appeal shall be in writing and be received by the office 
of General Counsel, and a copy of such request filed with the Regional 
Director, prior to the expiration of the filing period. Copies of the 
acknowledgement of the filing of an appeal and of any ruling on a 
request for an extension of time for filing the appeal shall be served 
on all parties. Consideration of an appeal untimely filed is within the 
discretion of the General Counsel upon good cause shown.
    (b) Oral presentation in Washington, DC, of the appeal issues may be 
permitted a party on written request made within 4 days after service of 
acknowledgment of the filing of an appeal. In the event such request is 
granted, the other parties shall be notified and afforded, without 
additional request, a like opportunity at another appropriate time.
    (c) The general counsel may sustain the regional director's refusal 
to issue or reissue a complaint, stating the grounds of his affirmance, 
or may direct the regional director to take further action; the general 
counsel's decision shall be served on all the parties. A motion for 
reconsideration of the decision must be filed within 14 days of service 
of the decision, except as hereinafter provided, and shall state with 
particularity the error requiring reconsideration. A motion for 
reconsideration based upon newly discovered evidence which has become 
available only since the decision on appeal shall be filed promptly on 
discovery of such evidence. Motions for reconsideration of a decision 
previously reconsidered will not be entertained, except in unusual 
situations where the moving party can establish that new evidence has 
been discovered which could not have been discovered by diligent inquiry 
prior to the first reconsideration.

[32 FR 9548, July 1, 1967, as amended at 51 FR 23746, July 1, 1986; 68 
FR 39837, July 3, 2003]

[[Page 40]]

                                 Answer



Sec. 102.20  Answer to complaint; time for filing; contents; allegations 
not denied deemed admitted.

    The respondent shall, within 14 days from the service of the 
complaint, file an answer thereto. The respondent shall specifically 
admit, deny, or explain each of the facts alleged in the complaint, 
unless the respondent is without knowledge, in which case the respondent 
shall so state, such statement operating as a denial. All allegations in 
the complaint, if no answer is filed, or any allegation in the complaint 
not specifically denied or explained in an answer filed, unless the 
respondent shall state in the answer that he is without knowledge, shall 
be deemed to be admitted to be true and shall be so found by the Board, 
unless good cause to the contrary is shown.

[51 FR 23746, July 1, 1986]



Sec. 102.21  Where to file; service upon the parties; form.

    An original and four copies of the answer shall be filed with the 
Regional Director issuing the complaint. Immediately upon the filing of 
his answer, respondent shall serve a copy thereof on the other parties. 
An answer of a party represented by counsel or non-attorney 
representative shall be signed by at least one such attorney or non-
attorney representative of record in his/her individual name, whose 
address shall be stated. A party who is not represented by an attorney 
or non-attorney representative shall sign his/her answer and state his/
her address. Except when otherwise specifically provided by rule or 
statute, an answer need not be verified or accompanied by affidavit. The 
signature of the attorney or non-attorney party representative 
constitutes a certificate by him/her that he/she has read the answer; 
that to the best of his/her knowledge, information, and belief there is 
good ground to support it; and that it is not interposed for delay. If 
an answer is not signed or is signed with intent to defeat the purpose 
of this section, it may be stricken as sham and false and the action may 
proceed as though the answer had not been served. For a willful 
violation of this section an attorney or non-attorney party 
representative may be subjected to appropriate disciplinary action. 
Similar action may be taken if scandalous or indecent matter is 
inserted.

[61 FR 65331, Dec. 12, 1996]



Sec. 102.22  Extension of time for filing.

    Upon his own motion or upon proper cause shown by any other party 
the regional director issuing the complaint may by written order extend 
the time within which the answer shall be filed.



Sec. 102.23  Amendment.

    The respondent may amend his answer at any time prior to the 
hearing. During the hearing or subsequent thereto, he may amend his 
answer in any case where the complaint has been amended, within such 
period as may be fixed by the administrative law judge or the Board. 
Whether or not the complaint has been amended, the answer may, in the 
discretion of the administrative law judge or the Board, upon motion, be 
amended upon such terms and within such periods as may be fixed by the 
administrative law judge or the Board.

                                 Motions

(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C. 
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519; 
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))



Sec. 102.24  Motions; where to file; contents; service on other parties; 

promptness in filing and response; default judgment procedures; summary 
judgment procedures.

    (a) All motions under Sec. Sec. 102.22 and 102.29 made prior to the 
hearing shall be filed in writing with the Regional Director issuing the 
complaint. All motions for default judgment, summary judgment, or 
dismissal made prior to the hearing shall be filed in writing with the 
Board pursuant to the provisions of Sec. 102.50. All other motions made 
prior to the hearing, including motions to reschedule the hearing under 
circumstances other than those set forth in Sec. 102.16(a), shall be 
filed in writing with the chief administrative law judge in Washington, 
DC, with the associate chief judge in San Francisco,

[[Page 41]]

California, with the associate chief judge in New York, New York, or 
with the associate chief judge in Atlanta, Georgia, as the case may be. 
All motions made at the hearing shall be made in writing to the 
administrative law judge or stated orally on the record. All motions 
filed subsequent to the hearing, but before the transfer of the case to 
the Board pursuant to Sec. 102.45, shall be filed with the 
administrative law judge, care of the chief administrative law judge in 
Washington, DC, the deputy chief judge in San Francisco, California, the 
associate chief judge in New York, New York, or the associate chief 
judge in Atlanta, Georgia, as the case may be. Motions shall briefly 
state the order or relief applied for and the grounds therefor. All 
motions filed with a Regional Director or an administrative law judge as 
set forth in this paragraph shall be filed therewith by transmitting 
three copies thereof together with an affidavit of service on the 
parties. All motions filed with the Board, including motions for default 
judgment, summary judgment, or dismissal, shall be filed with the 
Executive Secretary of the Board in Washington, DC, by transmitting 
eight copies thereof together with an affidavit of service on the 
parties. Unless otherwise provided in 29 CFR part 102, motions and 
responses thereto shall be filed promptly and within such time as not to 
delay the proceeding.
    (b) All motions for summary judgment or dismissal shall be filed 
with the Board no later than 28 days prior to the scheduled hearing. 
Where no hearing is scheduled, or where the hearing is scheduled less 
than 28 days after the date for filing an answer to the complaint or 
compliance specification, whichever is applicable, the motion shall be 
filed promptly. Upon receipt of a motion for default judgment, summary 
judgment, or dismissal, the Board may deny the motion or issue a notice 
to show cause why the motion should not be granted. If a notice to show 
cause is issued, the hearing, if scheduled, will normally be postponed 
indefinitely. If a party desires to file an opposition to the motion 
prior to issuance of the notice to show cause in order to prevent 
postponement of the hearing, it may do so; Provided however, That any 
such opposition shall be filed no later than 21 days prior to the 
hearing. If a notice to show cause is issued, an opposing party may file 
a response thereto notwithstanding any opposition it may have filed 
prior to issuance of the notice. The time for filing the response shall 
be fixed in the notice to show cause. It is not required that either the 
opposition or the response be supported by affidavits or other 
documentary evidence showing that there is a genuine issue for hearing. 
The Board in its discretion may deny the motion where the motion itself 
fails to establish the absence of a genuine issue, or where the opposing 
party's pleadings, opposition and/or response indicate on their face 
that a genuine issue may exist. If the opposing party files no 
opposition or response, the Board may treat the motion as conceded, and 
default judgment, summary judgment, or dismissal, if appropriate, shall 
be entered.

[69 FR 1676, Jan. 12, 2004]



Sec. 102.25  Ruling on motions.

    An administrative law judge designated by the chief administrative 
law judge, by the associate chief judge in San Francisco, California, by 
the associate chief judge in New York, New York, or by the associate 
chief judge in Atlanta, Georgia, as the case may be, shall rule on all 
prehearing motions (except as provided in Sec. Sec. 102.16, 102.22, 
102.29, and 102.50), and all such rulings and orders shall be issued in 
writing and a copy served on each of the parties. The administrative law 
judge designated to conduct the hearing shall rule on all motions after 
opening of the hearing (except as provided in Sec. 102.47), and any 
orders in connection therewith, if announced at the hearing, shall be 
stated orally on the record; in all other cases the administrative law 
judge shall issue such rulings and orders in writing and shall cause a 
copy of the same to be served on each of the parties, or shall make his 
ruling in his decision. Whenever the administrative law judge has 
reserved his ruling on any motion, and the proceeding is thereafter 
transferred to and continued

[[Page 42]]

before the Board pursuant to Sec. 102.50, the Board shall rule on such 
motion.

(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C. 
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519; 
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))

[45 FR 51193, Aug. 1, 1980, as amended at 62 FR 1668, Jan. 13, 1997]



Sec. 102.26  Motions, rulings, and orders part of the record; rulings 

not to be appealed directly to the Board without special permission; 
requests for special permission to appeal.

    All motions, rulings, and orders shall become a part of the record, 
except that rulings on motions to revoke subpoenas shall become a part 
of the record only upon the request of the party aggrieved thereby as 
provided in Sec. 102.31. Unless expressly authorized by the Rules and 
Regulations, rulings by the regional director or by the administrative 
law judge on motions and/or by the administrative law judge on 
objections, and orders in connection therewith, shall not be appealed 
directly to the Board except by special permission of the Board, but 
shall be considered by the Board in reviewing the record if exception to 
the ruling or order is included in the statement of exceptions filed 
with the Board pursuant to Sec. 102.46. Requests to the Board for 
special permission to appeal from a ruling of the regional director or 
of the administrative law judge, together with the appeal from such 
ruling, shall be filed promptly, in writing, and shall briefly state the 
reasons special permission should be granted and the grounds relied on 
for the appeal. The moving party shall immediately serve a copy of the 
request for special permission and of the appeal on the other parties 
and, if the request involves a ruling by an administrative law judge, on 
the administrative law judge. Any statement in opposition or other 
response to the request and/or to the appeal shall be filed promptly, in 
writing, and shall be served immediately on the other parties and on the 
administrative law judge, if any. If the Board grants the request for 
special permission to appeal, it may proceed forthwith to rule on the 
appeal.

[47 FR 40770, Sept. 15, 1982]



Sec. 102.27  Review of granting of motion to dismiss entire complaint; 
reopening of the record.

    If any motion in the nature of a motion to dismiss the complaint in 
its entirety is granted by the administrative law judge before filing 
his decision, any party may obtain a review of such action by filing a 
request therefor with the Board in Washington, DC, stating the grounds 
for review, and immediately on such filing shall serve a copy thereof on 
the regional director and on the other parties. Unless such request for 
review is filed within 28 days from the date of the order of dismissal, 
the case shall be closed.

[51 FR 23746, July 1, 1986]



Sec. 102.28  Filing of answer or other participation in proceedings 
not a waiver of rights.

    The right to make motions or to make objections to rulings upon 
motions shall not be deemed waived by the filing of an answer or by 
other participation in the proceedings before the administrative law 
judge or the Board.

[45 FR 51192, Aug. 1, 1980]

                              Intervention



Sec. 102.29  Intervention; requisites; rulings on motions to intervene.

    Any person desiring to intervene in any proceeding shall file a 
motion in writing or, if made at the hearing, may move orally on the 
record, stating the grounds upon which such person claims an interest. 
Prior to the hearing, such a motion shall be filed with the regional 
director issuing the complaint; during the hearing such motion shall be 
made to the administrative law judge. An original and four copies of 
written motions shall be filed. Immediately upon filing such motion, the 
moving party shall serve a copy thereof upon each of the other parties. 
The regional director shall rule upon all such motions filed prior to 
the hearing, and shall cause a copy of said rulings to be served upon 
each of the other parties,

[[Page 43]]

or may refer the motion to the administrative law judge for ruling. The 
administrative law judge shall rule upon all such motions made at the 
hearing or referred to him by the regional director, in the manner set 
forth in Sec. 102.25. The regional director or the administrative law 
judge, as the case may be, may by order permit intervention in person or 
by counsel or other representative to such extent and upon such terms as 
he may deem proper.

                  Witnesses, Depositions, and Subpoenas



Sec. 102.30  Examination of witnesses; deposition.

    Witnesses shall be examined orally under oath, except that for good 
cause shown after the issuance of a complaint, testimony may be taken by 
deposition.
    (a) Applications to take depositions shall be in writing setting 
forth the reasons why such depositions should be taken, the name and 
post office address of the witness, the matters concerning which it is 
expected the witness will testify, and the time and place proposed for 
the taking of the deposition, together with the name and address of the 
person before whom it is desired that the deposition be taken (for the 
purposes of this section hereinafter referred to as the ``officer''). 
Such application shall be made to the regional director prior to the 
hearing, and to the administrative law judge during and subsequent to 
the hearing but before transfer of the case to the Board pursuant to 
Sec. 102.45 or Sec. 102.50. Such application shall be served upon the 
regional director or the administrative law judge, as the case may be, 
and upon all other parties, not less than 7 days (when the deposition is 
to be taken within the continental United States) and 15 days (if the 
deposition is to be taken elsewhere) prior to the time when it is 
desired that the deposition be taken. The regional director or 
administrative law judge, as the case may be, shall upon receipt of the 
application, if in his discretion good cause has been shown, make and 
serve upon the parties an order which will specify the name of the 
witness whose deposition is to be taken and the time, the place, and the 
designation of the officer before whom the witness is to testify, who 
may or may not be the same officer as that specified in the application. 
Such order shall be served upon all the other parties by the regional 
director or upon all parties by the administrative law judge.
    (b) Such deposition may be taken before any officer authorized to 
administer oaths by the laws of the United States or of the place where 
the examination is held, including any agent of the Board authorized to 
administer oaths. If the examination is held in a foreign country, it 
may be taken before any secretary of embassy or legation, consul 
general, consul, vice consul, or consular agent of the United States.
    (c) At the time and place specified in said order the officer 
designated to take such deposition shall permit the witness to be 
examined and cross-examined under oath by all the parties appearing, and 
his testimony shall be reduced to typewriting by the officer or under 
his direction. All objections to questions or evidence shall be deemed 
waived unless made at the examination. The officer shall not have power 
to rule upon any objections but he shall note them upon the deposition. 
The testimony shall be subscribed by the witness in the presence of the 
officer who shall attach his certificate stating that the witness was 
duly sworn by him, that the deposition is a true record of the testimony 
and exhibits given by the witness, and that said officer is not of 
counsel or attorney to any of the parties nor interested in the event of 
the proceeding or investigation. If the deposition is not signed by the 
witness because he is ill, dead, cannot be found, or refuses to sign it, 
such fact shall be included in the certificate of the officer and the 
deposition may then be used as fully as though signed. The officer shall 
immediately deliver an original and two copies of said transcript, 
together with his certificate, in person or by registered or certified 
mail to the regional director or the administrative law judge, care of 
the chief administrative law judge in Washington, DC, the associate 
chief judge, in San Francisco, California, the associate chief judge in 
New York, New

[[Page 44]]

York, or the associate chief judge in Atlanta, Georgia, as the case may 
be.
    (d) The administrative law judge shall rule upon the admissibility 
of the deposition or any part thereof.
    (e) All errors or irregularities in compliance with the provisions 
of this section shall be deemed waived unless a motion to suppress the 
deposition or some part thereof is made with reasonable promptness after 
such defect is or, with due diligence, might have been ascertained.
    (f) If the parties so stipulate in writing, depositions may be taken 
before any person at any time or place, upon any notice and in any 
manner, and when so taken may be used like other depositions.

(National Labor Relations Act approved July 5, 1935, 49 Stat. 449; 29 
U.S.C. 151-166, as amended by Act of June 23, 1947 (61 Stat. 136; 29 
U.S.C. Sup. 151-167), Act of Oct. 22, 1951 (65 Stat. 601; 29 U.S.C. 158, 
159, 168), Act of Sept. 14, 1959 (73 Stat. 519; 29 U.S.C. 141-168), and 
Act of July 26, 1974 (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))

[24 FR 9102, Nov. 7, 1959, as amended at 45 FR 37425, June 3, 1980; 45 
FR 51193, Aug. 1, 1980; 62 FR 1668, Jan. 13, 1997]



Sec. 102.31  Issuance of subpoenas; petitions to revoke subpoenas; rulings 

on claim of privilege against self-incrimination; subpoena enforcement 
proceedings; right to inspect and copy data.

    (a) The Board, or any Member thereof, shall, on the written 
application of any party, forthwith issue subpoenas requiring the 
attendance and testimony of witnesses and the production of any 
evidence, including books, records, correspondence, or documents, in 
their possession or under their control. The Executive Secretary shall 
have the authority to sign and issue any such subpoenas on behalf of the 
Board or any Member thereof. Applications for subpoenas, if filed prior 
to the hearing, shall be filed with the Regional Director. Applications 
for subpoenas filed during the hearing shall be filed with the 
administrative law judge. Either the Regional Director or the 
administrative law judge, as the case may be, shall grant the 
application on behalf of the Board or any Member thereof. Applications 
for subpoenas may be made ex parte. The subpoena shall show on its face 
the name and address of the party at whose request the subpoena was 
issued.
    (b) Any person served with a subpoena, whether ad testificandum or 
duces tecum, if he or she does not intend to comply with the subpoena, 
shall, within 5 days after the date of service of the subpoena, petition 
in writing to revoke the subpoena. The date of service for purposes of 
computing the time for filing a petition to revoke shall be the date the 
subpoena is received. All petitions to revoke subpoenas shall be served 
upon the party at whose request the subpoena was issued. Such petition 
to revoke, if made prior to the hearing, shall be filed with the 
regional director and the regional director shall refer the petition to 
the administrative law judge or the Board for ruling. Petitions to 
revoke subpoenas filed during the hearing shall be filed with the 
administrative law judge. Notice of the filing of petitions to revoke 
shall be promptly given by the regional director or the administrative 
law judge, as the case may be, to the party at whose request the 
subpoena was issued. The administrative law judge or the Board, as the 
case may be, shall revoke the subpoena if in its opinion the evidence 
whose production is required does not relate to any matter under 
investigation or in question in the proceedings or the subpoena does not 
describe with sufficient particularity the evidence whose production is 
required, or if for any other reason sufficient in law the subpoena is 
otherwise invalid. The administrative law judge or the Board, as the 
case may be, shall make a simple statement of procedural or other 
grounds for the ruling on the petition to revoke. The petition to 
revoke, any answer filed thereto, and any ruling thereon shall not 
become part of the official record except upon the request of the party 
aggrieved by the ruling.
    (c) With the approval of the Attorney General of the United States, 
the Board may issue an order requiring any individual to give testimony 
or provide other information at any proceeding before the Board if, in 
the judgment of the Board, (1) the testimony or other information from 
such individual may be necessary to the public interest, and

[[Page 45]]

(2) such individual has refused or is likely to refuse to testify or 
provide other information on the basis of his privilege against 
selfincrimination. Requests for the issuance of such an order by the 
Board may be made by any party. Prior to hearing, and after transfer of 
the proceeding to the Board, such requests shall be made to the Board in 
Washington, DC, and the Board shall take such action thereon as it deems 
appropriate. During the hearing, and thereafter while the proceeding is 
pending before the administrative law judge, such requests shall be made 
to the administrative law judge. If the administrative law judge denies 
the request, his ruling shall be subject to appeal to the Board in 
Washington, DC, in the manner and to the extent provided in Sec. 102.26 
with respect to rulings and orders by an administrative law judge, 
except that requests for permission to appeal in this instance shall be 
filed within 24 hours of the administrative law judge's ruling. If no 
appeal is sought within such time, or the appeal is denied, the ruling 
of the administrative law judge shall become final and his denial shall 
become the ruling of the Board. If the administrative law judge deems 
the request appropriate, he shall recommend that the Board seek the 
approval of the Attorney General for the issuance of the order, and the 
Board shall take such action on the administrative law judge's 
recommendation as it deems appropriate. Until the Board has issued the 
requested order no individual who claims the privilege against self-
incrimination shall be required, or permitted, to testify or to give 
other information respecting the subject matter of the claim.
    (d) Upon the failure of any person to comply with a subpoena issued 
upon the request of a private party, the general counsel shall, in the 
name of the Board but on relation of such private party, institute 
proceedings in the appropriate district court for the enforcement 
thereof, unless in the judgment of the Board the enforcement of such 
subpoena would be inconsistent with law and with the policies of the 
act. Neither the general counsel nor the Board shall be deemed thereby 
to have assumed responsibility for the effective prosecution of the same 
before the court.
    (e) Persons compelled to submit data or evidence at a public 
proceeding are entitled to retain or, on payment of lawfully prescribed 
costs, to procure copies or transcripts of the data or evidence 
submitted by them. Persons compelled to submit data or evidence in the 
nonpublic investigative stages of proceedings may, for good cause, be 
limited by the regional director to inspection of the official 
transcript of their testimony, but shall be entitled to make copies of 
documentary evidence or exhibits which they have produced.

[24 FR 9102, Nov. 7, 1959, as amended at 35 FR 18797, Dec. 11, 1970; 62 
FR 9931, Mar. 5, 1997]



Sec. 102.32  Payment of witness fees and mileage; fees of persons taking 
depositions.

    Witnesses summoned before the trial examiner shall be paid the same 
fees and mileage that are paid witnesses in the courts of the United 
States, and witnesses whose depositions are taken and the persons taking 
the same shall severally be entitled to the same fees as are paid for 
like services in the courts of the United States. Witness fees and 
mileage shall be paid by the party at whose instance the witnesses 
appear and the person taking the deposition shall be paid by the party 
at whose instance the deposition is taken.

                 Transfer, Consolidation, and Severance



Sec. 102.33  Transfer of charge and proceeding from region to region; 
consolidation of proceedings in same region; severance.

    (a) Whenever the general counsel deems it necessary in order to 
effectuate the purposes of the Act or to avoid unnecessary costs or 
delay, he may permit a charge to be filed with him in Washington, DC, or 
may, at any time after a charge has been filed with a regional director 
pursuant to Sec. 102.10, order that such charge and any proceeding 
which may have been initiated with respect thereto:
    (1) Be transferred to and continued before him for the purpose of 
investigation or consolidation with any other

[[Page 46]]

proceeding which may have been instituted in a regional office or with 
him; or
    (2) Be consolidated with any other proceeding which may have been 
instituted in the same region; or
    (3) Be transferred to and continued in any other region for the 
purpose of investigation or consolidation with any proceeding which may 
have been instituted in or transferred to such other region; or
    (4) Be severed from any other proceeding with which it may have been 
consolidated pursuant to this section.
    (b) The provisions of Sec. Sec. 102.9 to 102.32, inclusive, shall, 
insofar as applicable, govern proceedings before the general counsel 
pursuant to this section, and the powers granted to regional directors 
in such provisions shall, for the purpose of this section, be reserved 
to and exercised by the general counsel. After the transfer of any 
charge and any proceeding which may have been instituted with respect 
thereto from one region to another pursuant to this section, the 
provisions of this subpart shall, insofar as applicable, govern such 
charge and such proceeding as if the charge had originally been filed in 
the region to which the transfer is made.
    (c) The regional director may, prior to hearing, exercise the powers 
in paragraph (a)(2) and (4) of this section with respect to proceedings 
pending in his region.
    (d) Motions to consolidate or sever proceedings after issuance of 
complaint shall be filed as provided in Sec. 102.24 and ruled upon as 
provided in Sec. 102.25, except that the regional director may 
consolidate or sever proceedings prior to hearing upon his own motion. 
Rulings by the administrative law judge upon motions to consolidate or 
sever may be appealed to the Board as provided in Sec. 102.26.

[32 FR 9549, July 1, 1967, as amended at 36 FR 9132, May 20, 1971]

                                Hearings



Sec. 102.34  Who shall conduct; to be public unless otherwise ordered.

    The hearing for the purpose of taking evidence upon a complaint 
shall be conducted by an administrative law judge designated by the 
chief administrative law judge in Washington, DC, or by the associate 
chief judge, San Francisco, California, by the associate chief judge in 
New York, New York, or by the associate chief judge in Atlanta, Georgia, 
as the case may be, unless the Board or any member thereof presides. At 
any time an administrative law judge may be designated to take the place 
of the administrative law judge previously designated to conduct the 
hearing. Such hearing shall be public unless otherwise ordered by the 
Board or the administrative law judge.

(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C. 
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519; 
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))

[45 FR 51193, Aug. 1, 1980, as amended at 62 FR 1668, Jan. 13, 1997]



Sec. 102.35  Duties and powers of administrative law judges; stipulations 

of cases to administrative law judges or to the Board; assignment and 
powers of settlement judges.

    (a) It shall be the duty of the administrative law judge to inquire 
fully into the facts as to whether the respondent has engaged in or is 
engaging in an unfair labor practice affecting commerce as set forth in 
the complaint or amended complaint. The administrative law judge shall 
have authority, with respect to cases assigned to him, between the time 
he is designated and transfer of the case to the Board, subject to the 
Rules and Regulations of the Board and within its powers:
    (1) To administer oaths and affirmations;
    (2) To grant applications for subpoenas;
    (3) To rule upon petitions to revoke subpoenas;
    (4) To rule upon offers of proof and receive relevant evidence;
    (5) To take or cause depositions to be taken whenever the ends of 
justice would be served thereby;
    (6) To regulate the course of the hearing and, if appropriate or 
necessary, to exclude persons or counsel from the hearing for 
contemptuous conduct and to strike all related testimony of witnesses 
refusing to answer any proper question;

[[Page 47]]

    (7) To hold conferences for the settlement or simplification of the 
issues by consent of the parties, but not to adjust cases;
    (8) To dispose of procedural requests, motions, or similar matters, 
including motions referred to the administrative law judge by the 
Regional Director and motions for default judgment, summary judgment, or 
to amend pleadings; also to dismiss complaints or portions thereof; to 
order hearings reopened; and upon motion order proceedings consolidated 
or severed prior to issuance of administrative law judge decisions;
    (9) To approve stipulations, including stipulations of facts that 
waive a hearing and provide for a decision by the administrative law 
judge. Alternatively, the parties may agree to waive a hearing and 
decision by an administrative law judge and submit directly to the 
Executive Secretary a stipulation of facts, which, if approved, provides 
for a decision by the Board. A statement of the issues presented should 
be set forth in the stipulation of facts and each party should also 
submit a short statement (no more than three pages) of its position on 
the issues. If the administrative law judge (or the Board) approves the 
stipulation, the administrative law judge (or the Board) will set a time 
for the filing of briefs. In proceedings before an administrative law 
judge, no further briefs shall be filed except by special leave of the 
administrative law judge. In proceedings before the Board, answering 
briefs may be filed within 14 days, or such further period as the Board 
may allow, from the last date on which an initial brief may be filed. No 
further briefs shall be filed except by special leave of the Board. At 
the conclusion of the briefing schedule, the judge (or the Board) will 
decide the case or make other disposition of it.
    (10) To make and file decisions, including bench decisions delivered 
within 72 hours after conclusion of oral argument, in conformity with 
Public Law 89-554, 5 U.S.C. 557;
    (11) To call, examine, and cross-examine witnesses and to introduce 
into the record documentary or other evidence;
    (12) To request the parties at any time during the hearing to state 
their respective positions concerning any issue in the case or theory in 
support thereof;
    (13) To take any other action necessary under the foregoing and 
authorized by the published Rules and Regulations of the Board.
    (b) Upon the request of any party or the judge assigned to hear a 
case, or on his or her own motion, the chief administrative law judge in 
Washington, D.C., the associate chief judge in San Francisco, 
California, the associate chief judge in Atlanta, Georgia, or the 
associate chief judge in New York, New York may assign a judge who shall 
be other than the trial judge to conduct settlement negotiations. In 
exercising his or her discretion, the chief or associate chief judge 
making the assignment will consider, among other factors, whether there 
is reason to believe that resolution of the dispute is likely, the 
request for assignment of a settlement judge is made in good faith, and 
the assignment is otherwise feasible. Provided, however, that no such 
assignment shall be made absent the agreement of all parties to the use 
of this procedure.
    (1) The settlement judge shall convene and preside over conferences 
and settlement negotiations between the parties, assess the 
practicalities of a potential settlement, and report to the chief or 
associate the status of settlement negotiations, recommending 
continuation or termination of the settlement negotiations. Where 
feasible settlement conferences shall be held in person.
    (2) The settlement judge may require that the attorney or other 
representative for each party be present at settlement conferences and 
that the parties or agents with full settlement authority also be 
present or available by telephone.
    (3) Participation of the settlement judge shall terminate upon the 
order of the chief or associates issued after consultation with the 
settlement judge. The conduct of settlement negotiations shall not 
unduly delay the hearing.
    (4) All discussions between the parties and the settlement judge 
shall be confidential. The settlement judge

[[Page 48]]

shall not discuss any aspect of the case with the trial judge, and no 
evidence regarding statements, conduct, offers of settlement, and 
concessions of the parties made in proceedings before the settlement 
judge shall be admissible in any proceeding before the Board, except by 
stipulation of the parties. Documents disclosed in the settlement 
process may not be used in litigation unless voluntarily produced or 
obtained pursuant to subpoena.
    (5) No decision of a chief or associate concerning the assignment of 
a settlement judge or the termination of a settlement judge's assignment 
shall be appealable to the Board.
    (6) Any settlement reached under the auspices of a settlement judge 
shall be subject to approval in accordance with the provisions of Sec. 
101.9 of the Board's Statements of Procedure.

[61 FR 6941, Feb. 23, 1996, as amended at 62 FR 1668, Jan. 13, 1997; 67 
FR 656, Jan. 7, 2002; 69 FR 1677, Jan. 12, 2004]



Sec. 102.36  Unavailability of administrative law judge.

    In the event the administrative law judge designated to conduct the 
hearing becomes unavailable to the Board after the hearing has been 
opened, the chief administrative law judge, in Washington, DC, the 
associate chief judge, in San Francisco, California, the associate chief 
judge in New York, New York, or the associate chief judge in Atlanta, 
Georgia, as the case may be, may designate another administrative law 
judge for the purpose of further hearing or other appropriate action.

(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C. 
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519; 
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))

[45 FR 51193, Aug. 1, 1980, as amended at 62 FR 1668, Jan. 13, 1997]



Sec. 102.37  Disqualification of administrative law judge.

    An administrative law judge may withdraw from a proceeding whenever 
he deems himself disqualified. Any party may request the administrative 
law judge, at any time following his designation and before filing of 
his decision, to withdraw on ground of personal bias or 
disqualification, by filing with him promptly upon the discovery of the 
alleged facts a timely affidavit setting forth in detail the matters 
alleged to constituate grounds for disqualification. If, in the opinion 
of the administrative law judge, such affidavit is filed with due 
diligence and is sufficient on its face, he shall forthwith disqualify 
himself and withdraw from the proceeding. If the administrative law 
judge does not disqualify himself and withdraw from the proceeding, he 
shall so rule upon the record, stating the grounds for his ruling and 
proceed with the hearing, or, if the hearing has closed, he shall 
proceed with issuance of his decision, and the provisions of Sec. 
102.26, with respect to review of rulings of administrative law judges, 
shall thereupon apply.

(49 Stat. 449; 29 U.S.C. 151-166, as amended by (61 Stat. 136; 29 U.S.C. 
Sup. 151-167), (65 Stat. 601; 29 U.S.C. 158, 159, 168), (73 Stat. 519; 
29 U.S.C. 141-168), (88 Stat. 395-397; 29 U.S.C. 152, 158, 169, 183))

[45 FR 51193, Aug. 1, 1980]



Sec. 102.38  Rights of parties.

    Any party shall have the right to appear at such hearing in person, 
by counsel, or by other representative, to call, examine, and cross-
examine witnesses, and to introduce into the record documentary or other 
evidence, except that the participation of any party shall be limited to 
the extent permitted by the administrative law judge: And provided 
further, That documentary evidence shall be submitted in duplicate.



Sec. 102.39  Rules of evidence controlling so far as practicable.

    Any such proceeding shall, so far as practicable, be conducted in 
accordance with the rules of evidence applicable in the district courts 
of the United States under the rules of civil procedure for the district 
courts of the United States, adopted by the Supreme Court of the United 
States pursuant to the Act of June 19, 1934, (title 28 U.S.C., secs. 
723-B, 723-C).



Sec. 102.40  Stipulations of fact admissible.

    In any such proceeding stipulations of fact may be introduced in 
evidence with respect to any issue.

[[Page 49]]



Sec. 102.41  Objection to conduct of hearing; how made; objections not 
waived by further participation.

    Any objection with respect to the conduct of the hearing, including 
any objection to the introduction of evidence, may be stated orally or 
in writing, accompanied by a short statement of the grounds of such 
objection, and included in the record. No such objection shall be deemed 
waived by further participation in the hearing.



Sec. 102.42  Filings of briefs and proposed findings with the administrative 
law judge and oral argument at the hearing.

    Any party shall be entitled, upon request, to a reasonable period at 
the close of the hearing for oral argument, which may include 
presentation of proposed findings and conclusions, and shall be included 
in the stenographic report of the hearing. In the discretion of the 
administrative law judge, any party may, upon request made before the 
close of the hearing, file a brief or proposed findings and conclusions, 
or both, with the administrative law judge, who may fix a reasonable 
time for such filing, but not in excess of 35 days from the close of the 
hearing. Requests for further extensions of time shall be made to the 
chief administrative law judge in Washington, D.C., to the associate 
chief judge in San Francisco, California, to the associate chief judge 
in New York, New York, or to the associate chief judge in Atlanta, 
Georgia, as the case may be. Notice of the request for any extension 
shall be immediately served on all other parties, and proof of service 
shall be furnished. Three copies of the brief or proposed findings and 
conclusions shall be filed with the administrative law judge, and copies 
shall be served on the other parties, and a statement of such service 
shall be furnished. In any case in which the administrative law judge 
believes that written briefs or proposed findings of fact and 
conclusions may not be necessary, he or she shall notify the parties at 
the opening of the hearing or as soon thereafter as practicable that he 
or she may wish to hear oral argument in lieu of briefs.

[61 FR 6942, Feb. 23, 1996, as amended at 62 FR 1668, Jan. 13, 1997]



Sec. 102.43  Continuance and adjournment.

    In the discretion of the administrative law judge, the hearing may 
be continued from day to day, or adjourned to a later date or to a 
different place, by announcement thereof at the hearings by the 
administrative law judge, or by other appropriate notice.

  Administrative Law Judge's Decision and Transfer of Case to the Board



Sec. 102.45  Administrative law judge's decision; contents; service; 
transfer of case to the Board; contents of record in case.

    (a) After hearing for the purpose of taking evidence upon a 
complaint, the administrative law judge shall prepare a decision. Such 
decision shall contain findings of fact, conclusions, and the reasons or 
basis therefor, upon all material issues of fact, law, or discretion 
presented on the record, and shall contain recommendations as to what 
disposition of the case should be made, which may include, if it be 
found that the respondent has engaged in or is engaging in the alleged 
unfair labor practices, a recommendation for such affirmative action by 
the respondent as will effectuate the policies of the Act. The 
administrative law judge shall file the original of his decision with 
the Board and cause a copy thereof to be served on each of the parties. 
If the administrative law judge delivers a bench decision, promptly upon 
receiving the transcript the judge shall certify the accuracy of the 
pages of the transcript containing the decision; file with the Board a 
certified copy of those pages, together with any supplementary matter 
the judge may deem necessary to complete the decision; and cause a copy 
thereof to be served on each of the parties. Upon the filing of the 
decision, the Board shall enter an order transferring the case to the 
Board and shall serve copies of the order, setting forth the date of 
such transfer, on all the parties. Service of the administrative law 
judge's decision and of the order transferring the case to the Board 
shall be complete upon mailing.
    (b) The charge upon which the complaint was issued and any 
amendments

[[Page 50]]

thereto, the complaint and any amendments thereto, notice of hearing, 
answer and any amendments thereto, motions, rulings, orders, the 
stenographic report of the hearing, stipulations, exhibits, documentary 
evidence, and depositions, together with the administrative law judge's 
decision and exceptions, and any cross-exceptions or answering briefs as 
provided in Sec. 102.46, shall constitute the record in the case.

[28 FR 7973, Aug. 6, 1963, as amended at 59 FR 65945, Dec. 22, 1994; 61 
FR 6942, Feb. 23, 1996]

                Exceptions to the Record and Proceedings



Sec. 102.46  Exceptions, cross-exceptions, briefs, answering briefs; 

time for filing; where to file; service on the parties; extension of 
time; effect of failure to include matter in exceptions; reply briefs; 
oral arguments.

    (a) Within 28 days, or within such further period as the Board may 
allow, from the date of the service of the order transferring the case 
to the Board, pursuant to Sec. 102.45, any party may (in accordance 
with section 10(c) of the Act and Sec. Sec. 102.111 and 102.112 of 
these rules) file with the Board in Washington, DC, exceptions to the 
administrative law judge's decision or to any other part of the record 
or proceedings (including rulings upon all motions or objections), 
together with a brief in support of said exceptions. Any party may, 
within the same period, file a brief in support of the administrative 
law judge's decision. The filing of such exceptions and briefs is 
subject to the provisions of paragraph (j) of this section. Requests for 
extension of time to file exceptions or briefs shall be in writing and 
copies thereof shall be served promptly on the other parties.
    (b)(1) Each exception (i) shall set forth specifically the questions 
of procedure, fact, law, or policy to which exception is taken; (ii) 
shall identify that part of the administrative law judge's decision to 
which objection is made; (iii) shall designate by precise citation of 
page the portions of the record relied on; and (iv) shall concisely 
state the grounds for the exception. If a supporting brief is filed the 
exceptions document shall not contain any argument or citation of 
authority in support of the exceptions, but such matters shall be set 
forth only in the brief. If no supporting brief is filed the exceptions 
document shall also include the citation of authorities and argument in 
support of the exceptions, in which event the exceptions document shall 
be subject to the 50-page limit as for briefs set forth in Sec. 
102.46(j).
    (2) Any exception to a ruling, finding, conclusion, or 
recommendation which is not specifically urged shall be deemed to have 
been waived. Any exception which fails to comply with the foregoing 
requirements may be disregarded.
    (c) Any brief in support of exceptions shall contain no matter not 
included within the scope of the exceptions and shall contain, in the 
order indicated, the following:
    (1) A clear and concise statement of the case containing all that is 
material to the consideration of the questions presented.
    (2) A specification of the questions involved and to be argued, 
together with a reference to the specific exceptions to which they 
relate.
    (3) The argument, presenting clearly the points of fact and law 
relied on in support of the position taken on each question, with 
specific page reference to the record and the legal or other material 
relied on.
    (d)(1) Within 14 days, or such further period as the Board may 
allow, from the last date on which exceptions and any supporting brief 
may be filed, a party opposing the exceptions may file an answering 
brief to the exceptions, in accordance with the provisions of paragraph 
(j) of this section.
    (2) The answering brief to the exceptions shall be limited to the 
questions raised in the exceptions and in the brief in support thereof. 
It shall present clearly the points of fact and law relied on in support 
of the position taken on each question. Where exception has been taken 
to a factual finding of the administrative law judge and it is proposed 
to support that finding, the answering brief should specify those pages 
of the record which, in the view of the party filing the brief, support 
the administrative law judge's finding.
    (3) Requests for extension of time to file an answering brief to the 
exceptions shall be in writing and copies

[[Page 51]]

thereof shall be served promptly on the other parties.
    (e) Any party who has not previously filed exceptions may, within 14 
days, or such further period as the Board may allow, from the last date 
on which exceptions and any supporting brief may be filed, file cross-
exceptions to any portion of the administrative law judge's decision, 
together with a supporting brief, in accordance with the provisions of 
paragraphs (b) and (j) of this section.
    (f)(1) Within 14 days, or such further period as the Board may 
allow, from the last date on which cross-exceptions and any supporting 
brief may be filed, any other party may file an answering brief to such 
cross-exceptions in accordance with the provisions of paragraphs (c) and 
(j) of this section. Such answering brief shall be limited to the 
questions raised in the cross-exceptions.
    (2) Requests for extension of time to file cross-exceptions, or 
answering brief to cross-exceptions, shall be in writing and copies 
thereof shall be served promptly on the other parties.
    (g) No matter not included in exceptions or cross-exceptions may 
thereafter be urged before the Board, or in any further proceeding.
    (h) Within 14 days from the last date on which an answering brief 
may be filed pursuant to paragraph (d) or (f) of this section, any party 
may file a reply brief to any such answering brief. Any reply brief 
filed pursuant to this subsection shall be limited to matters raised in 
the brief to which it is replying, and shall not exceed 10 pages. No 
extensions of time shall be granted for the filing of reply briefs, nor 
shall permission be granted to exceed the 10 page length limitation. 
Eight copies of any reply brief shall be filed with the Board, copies 
shall be served on the other parties, and a statement of such service 
shall be furnished. No further briefs shall be filed except by special 
leave of the Board. Requests for such leave shall be in writing and 
copies thereof shall be served promptly on the other parties.
    (i) Should any party desire permission to argue orally before the 
Board, request therefor must be made in writing to the Board 
simultaneously with the statement of any exceptions or cross-exceptions 
filed pursuant to the provisions of this section with a statement of 
service on the other parties. The Board shall notify the parties of the 
time and place of oral argument, if such permission is granted. Oral 
arguments are limited to 30 minutes for each party entitled to 
participate. No request for additional time will be granted unless 
timely application is made in advance of oral argument.
    (j) Exceptions to administrative law judges' decisions, or to the 
record, and briefs shall be printed or otherwise legibly duplicated. 
Carbon copies of typewritten matter will not be accepted. Eight copies 
of such documents shall be filed with the Board in Washington, DC, and 
copies shall also be served promptly on the other parties. All documents 
filed pursuant to this section shall be double spaced on 8 \1/2\ by 11-
inch paper. Any brief filed pursuant to this section shall not be 
combined with any other brief, and except for reply briefs whose length 
is governed by paragraph (h) of this section, shall not exceed 50 pages 
in length, exclusive of subject index and table of cases and other 
authorities cited, unless permission to exceed that limit is obtained 
from the Board by motion, setting forth the reasons therefor, filed not 
less than 10 days prior to the date the brief is due. Where any brief 
filed pursuant to this section exceeds 20 pages, it shall contain a 
subject index with page references and an alphabetical table of cases 
and other authorities cited.

[56 FR 49142, Sept. 27, 1991]



Sec. 102.47  Filing of motion after transfer of case to Board.

    All motions filed after the case has been transferred to the Board 
pursuant to Sec. 102.45 shall be filed with the Board in Washington, 
DC, by transmitting eight copies thereof, together with an affidavit of 
service on the parties. Such motions shall be printed or otherwise 
legibly duplicated: Provided, however, That carbon copies of typewritten 
matter shall not be filed and if submitted will not be accepted.

[29 FR 15919, Nov. 28, 1964]

[[Page 52]]

                       Procedure Before the Board



Sec. 102.48  Action of the Board upon expiration of time to file 

exceptions to the administrative law judge's decision; decisions 
by the Board; extraordinary postdecisional motions.

    (a) In the event no timely or proper exceptions are filed as herein 
provided, the findings, conclusions, and recommendations of the 
administrative law judge as contained in his decision shall, pursuant to 
section 10(c) of the Act, automatically become the decision and order of 
the Board and become its findings, conclusions, and order, and all 
objections and exceptions thereto shall be deemed waived for all 
purposes.
    (b) Upon the filing of timely and proper exceptions, and any cross-
exceptions, or answering briefs, as provided in Sec. 102.46, the Board 
may decide the matter forthwith upon the record, or after oral argument, 
or may reopen the record and receive further evidence before a member of 
the Board or other Board agent or agency, or may make other disposition 
of the case.
    (c) Where exception is taken to a factual finding of the 
administrative law judge, the Board, in determining whether the finding 
is contrary to a preponderance of the evidence, may limit its 
consideration to such portions of the record as are specified in the 
exceptions, the supporting brief, and the answering brief.
    (d)(1) A party to a proceeding before the Board may, because of 
extraordinary circumstances, move for reconsideration, rehearing, or 
reopening of the record after the Board decision or order. A motion for 
reconsideration shall state with particularity the material error 
claimed and with respect to any finding of material fact shall specify 
the page of the record relied on. A motion for rehearing shall specify 
the error alleged to require a hearing de novo and the prejudice to the 
movant alleged to result from such error. A motion to reopen the record 
shall state briefly the additional evidence sought to be adduced, why it 
was not presented previously, and that, if adduced and credited, it 
would require a different result. Only newly discovered evidence, 
evidence which has become available only since the close of the hearing, 
or evidence which the Board believes should have been taken at the 
hearing will be taken at any further hearing.
    (2) Any motion pursuant to this section shall be filed within 28 
days, or such further period as the Board may allow, after the service 
of the Board's decision or order, except that a motion for leave to 
adduce additional evidence shall be filed promptly on discovery of such 
evidence. Copies of any request for an extension of time shall be served 
promptly on the other parties.
    (3) The filing and pendency of a motion under this provision shall 
not operate to stay the effectiveness of the action of the Board unless 
so ordered. A motion for reconsideration or for rehearing need not be 
filed to exhaust administrative remedies.

[28 FR 7974, Aug. 6, 1963, as amended at 34 FR 14432, Sept. 16, 1969; 51 
FR 23746, July 1, 1986; 56 FR 49143, Sept. 27, 1991]



Sec. 102.49  Modification or setting aside of order of Board before 
record filed in court; action thereafter.

    Within the limitations of the provisions of section 10(c) of the 
Act, and Sec. 102.48, until a transcript of the record in a case shall 
have been filed in a court, within the meaning of section 10 of the Act, 
the Board may at any time upon reasonable notice modify or set aside, in 
whole or in part, any findings of fact, conclusions of law, or order 
made or issued by it. Thereafter, the Board may proceed pursuant to 
Sec. 102.50, insofar as applicable.



Sec. 102.50  Hearings before Board or member thereof.

    Whenever the Board deems it necessary in order to effectuate the 
purpose of the act or to avoid unnnecessary costs or delay, it may, at 
any time after a complaint has issued pursuant to Sec. 102.15 or Sec. 
102.33, order that such complaint and any proceeding which may have been 
instituted with respect thereto be transferred to and continued before 
it or any member of the Board. The provisions of this subpart shall, 
insofar as applicable, govern proceedings before the Board or any member 
pursuant to this

[[Page 53]]

section, and the powers granted to administrative law judges in such 
provisions shall, for the purpose of this section, be reserved to and 
exercised by the Board or the member thereof who shall preside.



Sec. 102.51  Settlement or adjustment of issues.

    At any stage of a proceeding prior to hearing, where time, the 
nature of the proceeding, and the public interest permit, all interested 
parties shall have opportunity to submit to the regional director, with 
whom the charge was filed, for consideration facts, arguments, offers of 
settlement, or proposals of adjustment.

                          Back-Pay Proceedings



Sec. 102.52  Compliance with Board order; notification of compliance 
determination.

    After entry of a Board order directing remedial action, or the entry 
of a court judgment enforcing such order, the Regional Director shall 
seek compliance from all persons having obligations thereunder. The 
Regional Director shall make a compliance determination as appropriate 
and shall notify the parties of the compliance determination. A charging 
party adversely affected by a monetary, make-whole, reinstatement, or 
other compliance determination will be provided, on request, with a 
written statement of the basis for that determination.

[53 FR 37755, Sept. 28, 1988]



Sec. 102.53  Review by the General Counsel of compliance determination; 
appeal to the Board of the General Counsel's decision.

    (a) The charging party may appeal such determination to the General 
Counsel in Washington, DC, within 14 days of the written statement of 
compliance determination provided as set forth in Sec. 102.52. The 
appeal shall contain a complete statement setting forth the facts and 
reasons upon which it is based and shall identify with particularity the 
error claimed in the Regional Director's determination. The charging 
party shall serve a copy of the appeal on all other parties and on the 
Regional Director. The General Counsel may for good cause shown extend 
the time for filing an appeal.
    (b) The General Counsel may affirm or modify the determination of 
the Regional Director, or may take such other action deemed appropriate, 
stating the gounds for the decision.
    (c) Within 14 days after service of the General Counsel's decision, 
the charging party may file a request for review of that decision with 
the Board in Washington, DC. The request for review shall contain a 
complete statement of the facts and reasons upon which it is based and 
shall identify with particularity the error claimed in the General 
Counsel's decision. A copy of the request for review shall be served on 
the General Counsel and on the Regional Director.
    (d) The Board may affirm or modify the decision of the General 
Counsel, or make such other disposition of the matter as it deems 
appropriate. The denial of the request for review will constitute an 
affirmance of the decision of the General Counsel.

[53 FR 37755, Sept. 28, 1988]



Sec. 102.54  Initiation of formal compliance proceedings; issuance of 
compliance specification and notice of hearing.

    (a) If it appears that controversy exists with respect to compliance 
with an order of the Board which cannot be resolved without a formal 
proceeding, the Regional Director may issue and serve on all parties a 
compliance specification in the name of the Board. The specification 
shall contain or be accompanied by a notice of hearing before an 
administrative law judge at a place therein fixed and at a time not less 
than 21 days after the service of the specification.
    (b) Whenever the Regional Director deems it necessary in order to 
effectuate the purposes and policies of the Act or to avoid unnecessary 
costs or delay, the Regional Director may issue a compliance 
specification, with or without a notice of hearing, based on an 
outstanding complaint.
    (c) Whenever the Regional Director deems it necessary in order to 
effectuate the purposes and policies of the Act or to avoid unnecessary 
costs or

[[Page 54]]

delay, the Regional Director may consolidate with a complaint and notice 
of hearing issued pursuant to Sec. 102.15 a compliance specification 
based on that complaint. After opening of the hearing, consolidation 
shall be subject to the approval of the Board or the administrative law 
judge, as appropriate. Issuance of a compliance specification shall not 
be a prerequisite or bar to Board initiation of proceedings in any 
administrative or judicial forum which the Board or the Regional 
Director determines to be appropriate for obtaining compliance with a 
Board order.

[53 FR 37755, Sept. 28, 1988, as amended at 62 FR 9685, Mar. 4, 1997]



Sec. 102.55  Contents of compliance specification.

    (a) Contents of specification with respect to allegations concerning 
the amount of backpay due. With respect to allegations concerning the 
amount of backpay due, the specification shall specifically and in 
detail show, for each employee, the backpay periods broken down by 
calendar quarters, the specific figures and basis of computation of 
gross backpay and interim earnings, the expenses for each quarter, the 
net backpay due, and any other pertinent information.
    (b) Contents of specification with respect to allegations other than 
the amount of backpay due. With respect to allegations other than the 
amount of backpay due, the specification shall contain a clear and 
concise description of the respects in which the respondent has failed 
to comply with a Board or court order, including the remedial acts 
claimed to be necessary for compliance by the respondent and, where 
known, the approximate dates, places, and names of the respondent's 
agents or other representatives described in the specification.
    (c) Amendments to specification. After the issuance of the notice of 
compliance hearing but prior to the opening of the hearing, the Regional 
Director may amend the specification. After the opening of the hearing, 
the specification may be amended upon leave of the administrative law 
judge or the Board, as the case may be, upon good cause shown.

[53 FR 37756, Sept. 28, 1988]



Sec. 102.56  Answer to compliance specification.

    (a) Filing and service of answer; form. Each respondent alleged in 
the specification to have compliance obligations shall, within 21 days 
from the service of the specification, file an original and four copies 
of an answer thereto with the Regional Director issuing the 
specification, and shall immediately serve a copy thereof on the other 
parties. The answer to the specification shall be in writing, the 
original being signed and sworn to by the respondent or by a duly 
authorized agent with appropriate power of attorney affixed, and shall 
contain the mailing address of the respondent.
    (b) Contents of answer to specification. The answer shall 
specifically admit, deny, or explain each and every allegation of the 
specification, unless the respondent is without knowledge, in which case 
the respondent shall so state, such statement operating as a denial. 
Denials shall fairly meet the substance of the allegations of the 
specification at issue. When a respondent intends to deny only a part of 
an allegation, the respondent shall specify so much of it as is true and 
shall deny only the remainder. As to all matters within the knowledge of 
the respondent, including but not limited to the various factors 
entering into the computation of gross backpay, a general denial shall 
not suffice. As to such matters, if the respondent disputes either the 
accuracy of the figures in the specification or the premises on which 
they are based, the answer shall specifically state the basis for such 
disagreement, setting forth in detail the respondent's position as to 
the applicable premises and furnishing the appropriate supporting 
figures.
    (c) Effect of failure to answer or to plead specifically and in 
detail to backpay allegations of specification. If the respondent fails 
to file any answer to the specification within the time prescribed by 
this section, the Board may, either with or without taking evidence in 
support of the allegations of the

[[Page 55]]

specification and without further notice to the respondent, find the 
specification to be true and enter such order as may be appropriate. If 
the respondent files an answer to the specification but fails to deny 
any allegation of the specification in the manner required by paragraph 
(b) of this section, and the failure so to deny is not adequately 
explained, such allegation shall be deemed to be admitted to be true, 
and may be so found by the Board without the taking of evidence 
supporting such allegation, and the respondent shall be precluded from 
introducing any evidence controverting the allegation.
    (d) Extension of time for filing answer to specification. Upon the 
Regional Director's own motion or upon proper cause shown by any 
respondent, the Regional Director issuing the compliance specification 
and notice of hearing may by written order extend the time within which 
the answer to the specification shall be filed.
    (e) Amendment to answer. Following the amendment of the 
specification by the Regional Director, any respondent affected by the 
amendment may amend its answer thereto.

[53 FR 37756, Sept. 28, 1988]



Sec. 102.57  Extension of date of hearing.

    Upon the Regional Director's own motion or upon proper cause shown, 
the Regional Director issuing the compliance specification and notice of 
hearing may extend the date of the hearing.

[53 FR 37756, Sept. 28, 1988]



Sec. 102.58  Withdrawal.

    Any compliance specification and notice of hearing may be withdrawn 
before the hearing by the Regional Director upon his or her own motion.

[53 FR 37756, Sept. 28, 1988]



Sec. 102.59  Hearing; posthearing procedure.

    After the issuance of a compliance specification and notice of 
hearing, the procedures provided in Sec. Sec. 102.24 to 102.51 shall be 
followed insofar as applicable.

[53 FR 37756, Sept. 28, 1988]



Subpart C_Procedure Under Section 9(c) of the Act for the Determination 

    of Questions Concerning Representation of Employees \3\ and for 
 Clarification of Bargaining Units and for Amendment of Certifications 
                      Under Section 9(b) of the Act
---------------------------------------------------------------------------

    \3\Procedure under the first proviso to sec. 8(b)(7)(C) of the Act 
is governed by subpart D.
---------------------------------------------------------------------------



Sec. 102.60  Petitions.

    (a) Petition for certification or decertification; who may file; 
where to file; withdrawal. A petition for investigation of a question 
concerning representation of employees under paragraphs (1)(A)(i) and 
(1)(B) of section 9(c) of the Act (hereinafter called a petition for 
certification) may be filed by an employee or group of employees or any 
individual or labor organization acting in their behalf or by an 
employer. A petition under paragraph (1)(A)(ii) of section 9(c) of the 
Act, alleging that the individual or labor organization which has been 
certified or is being currently recognized as the bargaining 
representative is no longer such representative (hereinafter called a 
petition for decertification), may be filed by any employee or group of 
employees or any individual or labor organization acting in their 
behalf. Petitions under this section shall be in writing and signed, and 
either shall be sworn to before a notary public, Board agent, or other 
person duly authorized by law to administer oaths and take 
acknowledgments or shall contain a declaration by the person signing it, 
under the penalty of perjury, that its contents are true and correct 
(see 28 U.S.C. Sec. 1746). One original of the petition shall be filed. 
A person filing a petition by facsimile pursuant to Sec. 102.114(f) 
shall also file an original for the Agency's records, but failure to do 
so shall not affect the validity of the filing by facsimile, if 
otherwise proper. Except as provided in Sec. 102.72, such petitions 
shall be filed with the Regional Director for the Region wherein the 
bargaining unit exists, or, if the bargaining unit exists in

[[Page 56]]

two or more Regions, with the Regional Director for any of such Regions. 
Prior to the transfer of the case to the Board, pursuant to Sec. 
102.67, the petition may be withdrawn only with the consent of the 
Regional Director with whom such petition was filed. After the transfer 
of the case to the Board, the petition may be withdrawn only with the 
consent of the Board. Whenever the Regional Director or the Board, as 
the case may be, approves the withdrawal of any petition, the case shall 
be closed.
    (b) Petition for clarification of bargaining unit or petition for 
amendment of certification under section 9(b) of the Act; who may file; 
where to file; withdrawal. A petition for clarification of an existing 
bargaining unit or a petition for amendment of certification, in the 
absence of a question concerning representation, may be filed by a labor 
organization or by an employer. Where applicable the same procedures set 
forth in paragraph (a) of this section shall be followed.

[29 FR 15919, Nov. 28, 1964, as amended at 60 FR 56235, Nov. 8, 1995; 67 
FR 658, Jan. 7, 2002]



Sec. 102.61  Contents of petition for certification; contents of petition 

for decertification; contents of petition for clarification of bargaining 
unit; contents of petition for amendment of certification.

    (a) A petition for certification, when filed by an employee or group 
of employees or an individual or labor organization acting in their 
behalf, shall contain the following:
    (1) The name of the employer.
    (2) The address of the establishments involved.
    (3) The general nature of the employer's business.
    (4) A description of the bargaining unit which the petitioner claims 
to be appropriate.
    (5) The names and addresses of any other persons or labor 
organizations who claim to represent any employees in the alleged 
appropriate unit, and brief descriptions of the contracts, if any, 
covering the employees in such unit.
    (6) The number of employees in the alleged appropriate unit.
    (7) A statement that the employer declines to recognize the 
petitioner as the representative within the meaning of section 9(a) of 
the Act or that the labor organization is currently recognized but 
desires certification under the act.
    (8) The name, affiliation, if any, and address of the petitioner.
    (9) Whether a strike or picketing is in progress at the 
establishment involved and, if so, the approximate number of employees 
participating, and the date such strike or picketing commenced.
    (10) Any other relevant facts.
    (b) A petition for certification, when filed by an employer, shall 
contain the following:
    (1) The name and address of the petitioner.
    (2) The general nature of the petitioner's business.
    (3) A brief statement setting forth that one or more individuals or 
labor organizations have presented to the petitioner a claim to be 
recognized as the exclusive representative of all employees in the unit 
claimed to be appropriate; a description of such unit; and the number of 
employees in the unit.
    (4) The name or names, affiliation, if any, and addresses of the 
individuals or labor organizations making such claim for recognition.
    (5) A statement whether the petitioner has contracts with any labor 
organization or other representatives of employees and, if so, their 
expiration date.
    (6) Whether a strike or picketing is in progress at the 
establishment involved and, if so, the approximate number of employees 
participating, and the date such strike or picketing commenced.
    (7) Any other relevant facts.
    (c) Petitions for decertification shall contain the following:
    (1) The name of the employer.
    (2) The address of the establishments and a description of the 
bargaining unit involved.
    (3) The general nature of the employer's business.
    (4) Name and address of the petitioner and affiliation, if any.
    (5) Name or names of the individuals or labor organizations who have 
been certified or are being currently recognized by the employer and who 
claim

[[Page 57]]

to represent any employees in the unit involved, and the expiration date 
of any contracts covering such employees.
    (6) An allegation that the individuals or labor organizations who 
have been certified or are currently recognized by the employer are no 
longer the representative in the appropriate unit as defined in section 
9(a) of the Act.
    (7) The number of employees in the unit.
    (8) Whether a strike or picketing is in progress at the 
establishment involved and, if so, the approximate number of employees 
participating, and the date such strike or picketing commenced.
    (9) Any other relevant facts.
    (d) A petition for clarification shall contain the following:
    (1) The name of the employer and the name of the recognized or 
certified bargaining representative.
    (2) The address of the establishment involved.
    (3) The general nature of the employer's business.
    (4) A description of the present bargaining unit, and, if the 
bargaining unit is certified, an identification of the existing 
certification.
    (5) A description of the proposed clarification.
    (6) The names and addresses of any other persons or labor 
organizations who claim to represent any employees affected by the 
proposed clarifications, and brief descriptions of the contracts, if 
any, covering any such employees.
    (7) The number of employees in the present bargaining unit and in 
the unit as proposed under the clarification.
    (8) The job classifications of employees as to whom the issue is 
raised, and the number of employees in each classification.
    (9) A statement by petitioner setting forth reasons why petitioner 
desires clarification of unit.
    (10) The name, the affiliation, if any, and the address of the 
petitioner.
    (11) Any other relevant facts.
    (e) A petition for amendment of certification shall contain the 
following:
    (1) The name of the employer and the name of the certified union 
involved.
    (2) The address of the establishment involved.
    (3) The general nature of the employer's business.
    (4) Identification and description of the existing certification.
    (5) A statement by petitioner setting forth the details of the 
desired amendment and reasons therefor.
    (6) The names and addresses of any other persons or labor 
organizations who claim to represent any employees in the unit covered 
by the certification and brief descriptions of the contracts, if any, 
covering the employees in such unit.
    (7) The name, the affiliation, if any, and the address of the 
petitioner.
    (8) Any other relevant facts.

[26 FR 3887, May 4, 1961, as amended at 29 FR 15919, Nov. 28, 1964]



Sec. 102.62  Consent-election agreements.

    (a) Where a petition has been duly filed, the employer and any 
individuals or labor organizations representing a substantial number of 
employees involved may, with the approval of the regional director, 
enter into a consent-election agreement leading to a determination by 
the regional director of the facts ascertained after such consent 
election. Such agreement shall include a description of the appropriate 
unit, the time and place of holding the election, and the payroll period 
to be used in determining what employees within the appropriate unit 
shall be eligible to vote. Such consent election shall be conducted 
under the direction and supervision of the regional director. The method 
of conducting such consent election shall be consistent with the method 
followed by the regional director in conducting elections pursuant to 
Sec. Sec. 102.69 and 102.70 except that the rulings and determinations 
by the regional director of the results thereof shall be final, and the 
regional director shall issue to the parties a certification of the 
results of the election, including certification of representatives 
where appropriate, with the same force and effect as if issued by the 
Board, provided further that rulings or determinations by the regional 
director in respect to any amendment of such certification shall also be 
final.
    (b) Where a petition has been duly filed, the employer and any 
individuals or labor organizations representing a

[[Page 58]]

substantial number of the employees involved may, with the approval of 
the regional director, enter into an agreement providing for a waiver of 
hearing and a consent election leading to a determination by the Board 
of the facts ascertained after such consent election, if such a 
determination is necessary. Such agreement shall also include a 
description of the appropriate bargaining unit, the time and place of 
holding the election, and the payroll period to be used in determining 
which employees within the appropriate unit shall be eligible to vote. 
Such consent election shall be conducted under the direction and 
supervision of the regional director. The method of conducting such 
election and the post election procedure shall be consistent with that 
followed by the regional director in conducting elections pursuant to 
Sec. Sec. 102.69 and 102.70.

[26 FR 3887, May 4, 1961]



Sec. 102.63  Investigation of petition by regional director; notice of 
hearing; service of notice; withdrawal of notice.

    (a) After a petition has been filed under Sec. 102.61 (a), (b), or 
(c), if no agreement such as that provided in Sec. 102.62 is entered 
into and if it appears to the regional director that there is reasonable 
cause to believe that a question of representation affecting commerce 
exists, that the policies of the act will be effectuated, and that an 
election will reflect the free choice of employees in the appropriate 
unit, the Regional Director shall prepare and cause to be served upon 
the parties and upon any known individuals or labor organizations 
purporting to act as representatives of any employees directly affected 
by such investigation, a notice of hearing before a hearing officer at a 
time and place fixed therein. A copy of the petition shall be served 
with such notice of hearing. Any such notice of hearing may be amended 
or withdrawn before the close of the hearing by the regional director on 
his own motion.
    (b) After a petition has been filed under Sec. 102.61(d) or (e), 
the regional director shall conduct an investigation and, as 
appropriate, he may issue a decision without a hearing; or prepare and 
cause to be served upon the parties and upon any known individuals or 
labor organizations purporting to act as representatives of any 
employees directly affected by such investigation, a notice of hearing 
before a hearing officer at a time and place fixed therein; or take 
other appropriate action. If a notice of hearing is served, it shall be 
accompanied by a copy of the petition. Any such notice of hearing may be 
amended or withdrawn before the close of the hearing by the regional 
director on his own motion. All hearing and posthearing procedure under 
this paragraph (b) shall be in conformance with Sec. Sec. 102.64 
through 102.68 whenever applicable, except where the unit or 
certification involved arises out of an agreement as provided in Sec. 
102.62(a), the regional director's action shall be final, and the 
provisions for review of regional director's decisions by the Board 
shall not apply. Dismissals of petitions without a hearing shall not be 
governed by Sec. 102.71. The regional director's dismissal shall be by 
decision, and a request for review therefrom may be obtained under Sec. 
102.67, except where an agreement under Sec. 102.62(a) is involved.

[29 FR 15919, Nov. 28, 1964]



Sec. 102.64  Conduct of hearing.

    (a) Hearings shall be conducted by a hearing officer and shall be 
open to the public unless otherwise ordered by the hearing officer. At 
any time, a hearing officer may be substituted for the hearing officer 
previously presiding. It shall be the duty of the hearing officer to 
inquire fully into all matters and issues necessary to obtain a full and 
complete record upon which the Board or the regional director may 
discharge their duties under section 9(c) of the Act.
    (b) The hearing officer may, in his discretion, continue the hearing 
from day to day, or adjourn it to a later date or to a different place, 
by announcement thereof at the hearing or by other appropriate notice.

[26 FR 3888, May 4, 1961]



Sec. 102.65  Motions; interventions.

    (a) All motions, including motions for intervention pursuant to 
paragraphs (b) and (e) of this section, shall

[[Page 59]]

be in writing or, if made at the hearing, may be stated orally on the 
record and shall briefly state the order or relief sought and the 
grounds for such motion. An original and two copies of written motions 
shall be filed and a copy thereof immediately shall be served on the 
other parties to the proceeding. Motions made prior to the transfer of 
the case to the Board shall be filed with the regional director, except 
that motions made during the hearing shall be filed with the hearing 
officer. After the transfer of the case to the Board, all motions shall 
be filed with the Board. Such motions shall be printed or otherwise 
legibly duplicated: Provided, however, That carbon copies of typewritten 
matter shall not be filed and if submitted will not be accepted. Eight 
copies of such motions shall be filed with the Board. The regional 
director may rule upon all motions filed with him, causing a copy of 
said ruling to be served on the parties, or he may refer the motion to 
the hearing officer: Provided, That if the regional director prior to 
the close of the hearing grants a motion to dismiss the petition, the 
petitioner may obtain a review of such ruling in the manner prescribed 
in Sec. 102.71. The hearing officer shall rule, either orally on the 
record or in writing, upon all motions filed at the hearing or referred 
to him as hereinabove provided, except that all motions to dismiss 
petitions shall be referred for appropriate action at such time as the 
entire record is considered by the regional director or the Board, as 
the case may be.
    (b) Any person desiring to intervene in any proceeding shall make a 
motion for intervention, stating the grounds upon which such person 
claims to have an interest in the proceeding. The regional director or 
the hearing officer, as the case may be, may by order permit 
intervention in person or by counsel or other representative to such 
extent and upon such terms as he may deem proper, and such intervenor 
shall thereupon become a party to the proceeding.
    (c) All motions, rulings, and orders shall become a part of the 
record, except that rulings on motions to revoke subpoenas shall become 
a part of the record only upon the request of the party aggrieved 
thereby as provided in Sec. 102.66(c). Unless expressly authorized by 
the Rules and Regulations, rulings by the regional director or by the 
hearing officer shall not be appealed directly to the Board, but shall 
be considered by the Board on appropriate appeal pursuant to Sec. 
102.67 (b), (c), and (d) or whenever the case is transferred to it for 
decision: Provided, however, That if the regional director has issued an 
order transferring the case to the Board for decision such rulings may 
be appealed directly to the Board by special permission of the Board. 
Nor shall rulings by the hearing officer be appealed directly to the 
regional director unless expressly authorized by the Rules and 
Regulations, except by special permission of the regional director, but 
shall be considered by the regional director when he reviews the entire 
record. Requests to the regional director, or to the Board in 
appropriate cases, for special permission to appeal from a ruling of the 
hearing officer, together with the appeal from such ruling, shall be 
filed promptly, in writing, and shall briefly state (1) the reasons 
special permission should be granted and (2) the grounds relied on for 
the appeal. The moving party shall immediately serve a copy of the 
request for special permission and of the appeal on the other parties 
and on the regional director. Any statement in opposition or other 
response to the request and/or to the appeal shall be filed promptly, in 
writing, and shall be served immediately on the other parties and on the 
regional director. If the Board or the regional director, as the case 
may be, grants the request for special permission to appeal, the Board 
or the regional director may proceed forthwith to rule on the appeal.
    (d) The right to make motions or to make objections to rulings on 
motions shall not be deemed waived by participation in the proceeding.
    (e)(1) A party to a proceeding may, because of extraordinary 
circumstances, move after the close of the hearing for reopening of the 
record, or move after the decision or report for reconsideration, for 
rehearing, or to reopen the record, but no such motion shall stay the 
time for filing a request for review of a decision or exceptions

[[Page 60]]

to a report. No motion for reconsideration, for rehearing, or to reopen 
the record will be entertained by the Board or by any regional director 
with respect to any matter which could have been but was not raised 
pursuant to any other section of these rules: Provided, however, That 
the regional director may treat a request for review of a decision or 
exceptions to a report as a motion for reconsideration. A motion for 
reconsideration shall state with particularity the material error 
claimed and with respect to any finding of material fact shall specify 
the page of the record relied on for the motion. A motion for rehearing 
or to reopen the record shall specify briefly the error alleged to 
require a rehearing or hearing de novo, the prejudice to the movant 
alleged to result from such error, the additional evidence sought to be 
adduced, why it was not presented previously, and what result it would 
require if adduced and credited. Only newly discovered evidence--
evidence which has become available only since the close of the 
hearing--or evidence which the regional director or the Board believes 
should have been taken at the hearing will be taken at any further 
hearing.
    (2) Any motion for reconsideration or for rehearing pursuant to this 
paragraph shall be filed within 14 days, or such further period as may 
be allowed, after the service of the decision or report. Any request for 
an extension of time to file such a motion shall be served promptly on 
the other parties. A motion to reopen the record shall be filed promptly 
on discovery of the evidence sought to be adduced.
    (3) The filing and pendency of a motion under this provision shall 
not unless so ordered operate to stay the effectiveness of any action 
taken or directed to be taken, except that, if the motion states with 
particularity that the granting thereof will affect the eligibility to 
vote of specific employees, the ballots of such employees shall be 
challenged and impounded in any election conducted while such motion is 
pending. A motion for reconsideration, for rehearing, or to reopen the 
record need not be filed to exhaust administrative remedies.

[26 FR 3888, May 4, 1961, as amended at 36 FR 9133, May 20, 1971; 47 FR 
40771, Sept. 15, 1982; 57 FR 12876, Apr. 14, 1992]



Sec. 102.66  Introduction of evidence: rights of parties at hearing; 
subpoenas.

    (a) Any party shall have the right to appear at any hearing in 
person, by counsel, or by other representative, and any party and the 
hearing officer shall have power to call, examine, and cross-examine 
witnesses and to introduce into the record documentary and other 
evidence. Witnesses shall be examined orally under oath. The rules of 
evidence prevailing in courts of law or equity shall not be controlling. 
Stipulations of fact may be introduced in evidence with respect to any 
issue.
    (b) Any objection with respect to the conduct of the hearing, 
including any objection to the introduction of evidence, may be stated 
orally or in writing, accompanied by a short statement of the grounds of 
such objection, and included in the record. No such objection shall be 
deemed waived by further participation in the hearing.
    (c) The Board, or any Member thereof, shall, on the written 
application of any party, forthwith issue subpoenas requiring the 
attendance and testimony of witnesses and the production of any 
evidence, including books, records, correspondence, or documents, in 
their possession or under their control. The Executive Secretary shall 
have the authority to sign and issue any such subpoenas on behalf of the 
Board or any Member thereof. Any party may file applications for 
subpoenas in writing with the Regional Director if made prior to 
hearing, or with the hearing officer if made at the hearing. 
Applications for subpoenas may be made ex parte. The Regional Director 
or the hearing officer, as the case may be, shall forthwith grant the 
subpoenas requested. Any person served with a subpoena, whether ad 
testificandum or duces tecum, if he or she does not intend to comply 
with the subpoena, shall, within 5 days after the date of service of the 
subpoena, petition in writing to revoke the subpoena. The

[[Page 61]]

date of service for purposes of computing the time for filing a petition 
to revoke shall be the date the subpoena is received. Such petition 
shall be filed with the regional director who may either rules upon it 
or refer it for ruling to the hearing officer: Provided, however, That 
if the evidence called for is to be produced at a hearing and the 
hearing has opened, the petition to revoke shall be filed with the 
hearing officer. Notice of the filing of petitions to revoke shall be 
promptly given by the regional director or hearing officer, as the case 
may be, to the party at whose request the subpoena was issued. The 
regional director or the hearing officer, as the case may be, shall 
revoke the subpoena if, in his opinion, the evidence whose production is 
required does not relate to any matter under investigation or in 
question in the proceedings or the subpoena does not describe with 
sufficient particularity the evidence whose production is required, or 
if for any other reason sufficient in law the subpoena is otherwise 
invalid. The regional director or the hearing officer, as the case may 
be, shall make a simple statement of procedural or other grounds for his 
ruling. The petition to revoke, any answer filed thereto, and any ruling 
thereon shall not become part of the record except upon the request of 
the party aggrieved by the ruling. Persons compelled to submit data or 
evidence are entitled to retain or, on payment of lawfully prescribed 
costs, to procure copies or transcripts of the data or evidence 
submitted by them.
    (d) Any party shall be entitled, upon request, to a reasonable 
period at the close of the hearing for oral argument, which shall be 
included in the stenographic report of the hearing.
    (e) The hearing officer may submit an analysis of the record to the 
regional director or the Board but he shall make no recommendations.
    (f) Witness fees and mileage shall be paid by the party at whose 
instance the witness appears.

[26 FR 3888, May 4, 1961, as amended at 61 FR 65331, Dec. 12, 1996; 62 
FR 9932, Mar. 5, 1997]



Sec. 102.67  Proceedings before the regional director; further hearing; 

briefs; action by the regional director; appeals from action by the 
regional director; statement in opposition to appeal; transfer of 
case to the Board; proceedings before the Board; Board action.

    (a) The regional director may proceed, either forthwith upon the 
record or after oral argument, the submission of briefs, or further 
hearing, as he may deem proper, to determine the unit appropriate for 
the purpose of collective bargaining, to determine whether a question 
concerning representation exists, and to direct an election, dismiss the 
petition, or make other disposition of the matter. Any party desiring to 
submit a brief to the regional director shall file the original and one 
copy thereof, which may be a typed carbon copy, within 7 days after the 
close of the hearing: Provided, however, That prior to the close of the 
hearing and for good cause the hearing officer may grant an extension of 
time not to exceed an additional 14 days. Copies of the brief shall be 
served on all other parties to the proceeding and a statement of such 
service shall be filed with the regional director together with the 
brief. No reply brief may be filed except upon special leave of the 
regional director.
    (b) A decision by the regional director upon the record shall set 
forth his findings, conclusions, and order or direction. The decision of 
the regional director shall be final: Provided, however, That within 14 
days after service thereof any party may file a request for review with 
the Board in Washington, DC. The regional director shall schedule and 
conduct any election directed by the decision notwithstanding that a 
request for review has been filed with or granted by the Board. The 
filing of such a request shall not, unless otherwise ordered by the 
Board, operate as a stay of the election or any action taken or directed 
by the regional director: Provided, however, That if a pending request 
for review has not been ruled upon or has been granted ballots whose 
validity might be affected by the final Board decision shall be 
segregated in an appropriate manner, and all ballots shall be impounded 
and remain unopened pending such decision.

[[Page 62]]

    (c) The Board will grant a request for review only where compelling 
reasons exist therefor. Accordingly, a request for review may be granted 
only upon one or more of the following grounds:
    (1) That a substantial question of law or policy is raised because 
of (i) the absence of, or (ii) a departure from, officially reported 
Board precedent.
    (2) That the regional director's decision on a substantial factual 
issue is clearly erroneous on the record and such error prejudicially 
affects the rights of a party.
    (3) That the conduct of the hearing or any ruling made in connection 
with the proceeding has resulted in prejudicial error.
    (4) That there are compelling reasons for reconsideration of an 
important Board rule or policy.
    (d) Any request for review must be a self-contained document 
enabling the Board to rule on the basis of its contents without the 
necessity or recourse to the record; however, the Board may, in its 
discretion, examine the record in evaluating the request. With respect 
to ground (2), and other grounds where appropriate, said request must 
contain a summary of all evidence or rulings bearing on the issues 
together with page citations from the transcript and a summary of 
argument. But such request may not raise any issue or allege any facts 
not timely presented to the regional director.
    (e) Any party may, within 7 days after the last day on which the 
request for review must be filed, file with the Board a statement in 
opposition thereto, which shall be served in accordance with the 
requirements of paragraph (k) of this section. A statement of such 
service of opposition shall be filed simultaneously with the Board. The 
Board may deny the request for review without awaiting a statement in 
opposition thereto.
    (f) The parties may, at any time, waive their right to request 
review. Failure to request review shall preclude such parties from 
relitigating, in any related subsequent unfair labor practice 
proceeding, any issue which was, or could have been, raised in the 
representation proceeding. Denial of a request for review shall 
constitute an affirmance of the regional director's action which shall 
also preclude relitigating any such issues in any related subsequent 
unfair labor practice proceeding.
    (g) The granting of a request for review shall not stay the regional 
director's decision unless otherwise ordered by the Board. Except where 
the Board rules upon the issues on review in the order granting review, 
the appellants and other parties may, within 14 days after issuance of 
an order granting review, file briefs with the Board. Such briefs may be 
reproductions of those previously filed with the regional director and/
or other briefs which shall be limited to the issues raised in the 
request for review. Where review has been granted, the Board will 
consider the entire record in the light of the grounds relied on for 
review. Any request for review may be withdrawn with the permission of 
the Board at any time prior to the issuance of the decision of the Board 
thereon.
    (h) In any case in which it appears to the regional director that 
the proceeding raises questions which should be decided by the Board, he 
may, at any time, issue an order, to be effective after the close of the 
hearing and before decision, transferring the case to the Board for 
decision. Such an order may be served on the parties upon the record of 
the hearing.
    (i) If any case is transferred to the Board for decision after the 
parties have filed briefs with the regional director, the parties may, 
within such time after service of the order transferring the case as is 
fixed by the regional director, file with the Board the brief previously 
filed with the regional director. No further briefs shall be permitted 
except by special permission of the Board. If the case is transferred to 
the Board before the time expires for the filing of briefs with the 
regional director and before the parties have filed briefs, such briefs 
shall be filed as set forth above and served in accordance with the 
requirements of paragraph (k) of this section within the time set by the 
regional director. If the order transferring the case is served on the 
parties during the hearing, the hearing officer may, prior to the close 
of the hearing and for good cause, grant an extension of time within 
which to file a

[[Page 63]]

brief with the Board for a period not to exceed an additional 14 days. 
No reply brief may be filed except upon special leave of the Board.
    (j) Upon transfer of the case to the Board, the Board shall proceed, 
either forthwith upon the record, or after oral argument or the 
submission of briefs, or further hearing, as it may determine, to decide 
the issues referred to it or to review the decision of the regional 
director and shall direct a secret ballot of the employees or the 
appropriate action to be taken on impounded ballots of an election 
already conducted, dismiss the petition, affirm or reverse the regional 
director's order in whole or in part, or make such other disposition of 
the matter as it deems appropriate.
    (k)(1) All documents filed with the Board under the provisions of 
this section shall be filed in eight copies, double spaced, on 8\1/2\- 
by 11-inch paper, and shall be printed or otherwise legibly duplicated. 
Carbon copies of typewritten materials will not be accepted. Requests 
for review, including briefs in support thereof; statements in 
opposition thereto; and briefs on review shall not exceed 50 pages in 
length, exclusive of subject index and table of cases and other 
authorities cited, unless permission to exceed that limit is obtained 
from the Board by motion, setting forth the reasons therefor, filed not 
less than 5 days, including Saturdays, Sundays, and holidays, prior to 
the date the document is due. Where any brief filed pursuant to this 
section exceeds 20 pages, it shall contain a subject index with page 
authorities cited.
    (2) The party filing with the Board a request for review, a 
statement in opposition to a request for review, or a brief on review 
shall serve a copy thereof on the other parties and shall file a copy 
with the regional director. A statement of such service shall be filed 
with the Board together with the document.
    (3) Requests for extensions of time to file requests for review, 
statements in opposition to a request for review, or briefs, as 
permitted by this section, shall be filed with the Board or the Regional 
Director, as the case may be. The party filing the request for an 
extension of time shall serve a copy thereof on the other parties and, 
if filed with the Board, on the Regional Director. A statement of such 
service shall be filed with the document.

[26 FR 3889, May 4, 1961, as amended at 42 FR 41117, Aug. 15, 1977; 47 
FR 40771, Sept. 15, 1982; 51 FR 23747, July 1, 1986; 56 FR 49143, Sept. 
27, 1991]



Sec. 102.68  Record; what constitutes; transmission to Board.

    The record in a proceeding conducted pursuant to the foregoing 
section shall consist of: the petition, notice of hearing with affidavit 
of service thereof, motions, rulings, orders, the stenographic report of 
the hearing and of any oral argument before the regional director, 
stipulations, exhibits, affidavits of service, and any briefs or other 
legal memoranda submitted by the parties to the regional director or to 
the Board, and the decision of the regional director, if any. 
Immediately upon issuance by the regional director of an order 
transferring the case to the Board, or upon issuance of an order 
granting a request for review by the Board, the regional director shall 
transmit the record to the Board.

[46 FR 45922, Sept. 15, 1981]



Sec. 102.69  Election procedure; tally of ballots; objections; 

certification by the regional director; report on challenged 
ballots; report on objections; exceptions; action of the Board; 
hearing.

    (a) Unless otherwise directed by the Board, all elections shall be 
conducted under the supervision of the Regional Director in whose Region 
the proceeding is pending. All elections shall be by secret ballot. 
Whenever two or more labor organizations are included as choices in an 
election, either participant may, upon its prompt request to and 
approval thereof by the Regional Director, whose decision shall be 
final, have its name removed from the ballot: Provided, however, That in 
a proceeding involving an employer-filed petition or a petition for 
decertification the labor organization certified, currently recognized, 
or found to be seeking recognition may not have its name removed from 
the ballot without giving timely notice in writing to all parties and 
the Regional Director, disclaiming any

[[Page 64]]

representation interest among the employees in the unit. Any party may 
be represented by observers of its own selection, subject to such 
limitations as the Regional Director may prescribe. Any party and Board 
agents may challenge, for good cause, the eligibility of any person to 
participate in the election. The ballots of such challenged persons 
shall be impounded. Upon the conclusion of the election the ballots will 
be counted and a tally of ballots prepared and immediately made 
available to the parties. Within 7 days after the tally of ballots has 
been prepared, any party may file with the Regional Director an original 
and five copies of objections to the conduct of the election or to 
conduct affecting the results of the election, which shall contain a 
short statement of the reasons therefor. Such filing must be timely 
whether or not the challenged ballots are sufficient in number to affect 
the results of the election. A person filing objections by facsimile 
pursuant to Sec. 102.114(f) shall also file an original for the 
Agency's records, but failure to do so shall not affect the validity of 
the filing by facsimile, if otherwise proper. In addition, extra copies 
need not be filed if the filing is by facsimile pursuant to Sec. 
102.114(f). The Regional Director will cause a copy of the objections to 
be served on each of the other parties to the proceeding. Within 7 days 
after the filing of objections, or such additional time as the Regional 
Director may allow, the party filing objections shall furnish to the 
Regional Director the evidence available to it to support the 
objections.
    (b) If no objections are filed within the time set forth above, if 
the challenged ballots are insufficient in number to affect the results 
of the election, and if no runoff election is to be held pursuant to 
Sec. 102.70, the regional director shall forthwith issue to the parties 
a certification of the results of the election, including certification 
of representative where appropriate, with the same force and effect as 
if issued by the Board, and the proceeding will thereupon be closed.
    (c)(1) If timely objections are filed to the conduct of the election 
or to conduct affecting the results of the election, or if the 
challenged ballots are sufficient in number to affect the results of the 
election, the regional director shall, consistent with the provisions of 
Sec. 102.69(d), initiate an investigation, as required, of such 
objections or challenges.
    (2) If a consent election has been held pursuant to Sec. 102.62(b), 
the regional director shall prepare and cause to be served on the 
parties a report on challenged ballots or on objections, or on both, 
including his recommendations, which report, together with the tally of 
ballots, he shall forward to the Board in Washington, DC. Within 14 days 
from the date of issuance of the report on challenged ballots or on 
objections, or on both, any party may file with the Board in Washington, 
DC, exceptions to such report, with supporting documents as permitted by 
Sec. 102.69(g)(3) and/or a supporting brief if desired. Within 7 days 
from the last date on which exceptions and any supporting documents and/
or supporting brief may be filed, or such further period as the Board 
may allow, a party opposing the exceptions may file an answering brief, 
with supporting documents as permitted by Sec. 102.69(g)(3) if desired, 
with the Board in Washington, DC. If no exceptions are filed to such 
report, the Board, upon the expiration of the period for filing such 
exceptions, may decide the matter forthwith upon the record or may make 
other disposition of the case. The report on challenged ballots may be 
consolidated with the report on objections in appropriate cases.
    (3) If the election has been conducted pursuant to a direction of 
election issued following any proceeding under Sec. 102.67, the 
regional director may (i) issue a report on objections or on challenged 
ballots, or on both, as in the case of a consent election pursuant to 
paragraph (b) of Sec. 102.62, or (ii) exercise his authority to decide 
the case and issue a decision disposing of the issues, and directing 
appropriate action or certifying the results of the election.
    (4) If the regional director issues a report on objections and 
challenges, the parties shall have the rights set forth in paragraph 
(c)(2) of this section and in Sec. 102.69(f); if the regional director 
issues a decision, the parties shall have the rights set forth in Sec. 
102.67 to the extent consistent herewith, including the

[[Page 65]]

right to submit documents supporting the request for review or 
opposition thereto as permitted by Sec. 102.69(g)(3).
    (d) In issuing a report on objections or challenged ballots, or 
both, following proceedings under Sec. Sec. 102.62(b) or 102.67, or in 
issuing a decision on objections or challenged ballots, or both, 
following proceedings under Sec. 102.67, the regional director may act 
on the basis of an administrative investigation or upon the record of a 
hearing before a hearing officer. Such hearing shall be conducted with 
respect to those objections or challenges which the regional director 
concludes raise substantial and material factual issues.
    (e) Any hearing pursuant to this section shall be conducted in 
accordance with the provisions of Sec. Sec. 102.64, 102.65, and 102.66, 
insofar as applicable, except that, upon the close of such hearing, the 
hearing officer shall, if directed by the regional director, prepare and 
cause to be served on the parties a report resolving questions of 
credibility and containing findings of fact and recommendations as to 
the disposition of the issues. In any case in which the regional 
director has directed that a report be prepared and served, any party 
may, within 14 days from the date of issuance of such report, file with 
the regional director the original and one copy, which may be a carbon 
copy, of exceptions to such report, with supporting brief if desired. A 
copy of such exceptions, together with a copy of any brief filed, shall 
immediately be served on the other parties and a statement of service 
filed with the regional director. Within 7 days from the last date on 
which exceptions and any supporting brief may be filed, or such further 
time as the regional director may allow, a party opposing the exceptions 
may file an answering brief with the regional director. An original and 
one copy, which may be a carbon copy, shall be submitted. A copy of such 
answering brief shall immediately be served on the other parties and a 
statement of service filed with the regional director. If no exceptions 
are filed to such report, the regional director, upon the expiration of 
the period for filing such exceptions, may decide the matter forthwith 
upon the record or may make other disposition of the case.
    (f) In a case involving a consent election held pursuant to Sec. 
102.62(b), if exceptions are filed, either to the report on challenged 
ballots or on objections, or on both if it be a consolidated report, and 
it appears to the Board that such exceptions do not raise substantial 
and material issues with respect to the conduct or results of the 
election, the Board may decide the matter forthwith upon the record or 
may make other disposition of the case. If it appears to the Board that 
such exceptions raise substantial and material factual issues, the Board 
may direct the regional director or other agent of the Board to issue 
and cause to be served on the parties a notice of hearing on said 
exceptions before a hearing officer. The hearing shall be conducted in 
accordance with the provisions of Sec. Sec. 102.64, 102.65, and 102.66 
insofar as applicable. Upon the close of the hearing the agent 
conducting the hearing, if directed by the Board, shall prepare and 
cause to be served on the parties a report resolving questions of 
credibility and containing findings of fact and recommendations to the 
Board as to the disposition of the challenges or objections, or both if 
it be a consolidated report. In any case in which the Board has directed 
that a report be prepared and served, any party may within 14 days from 
the date of issuance of the report on challenged ballots or on 
objections, or on both, file with the Board in Washington, DC., 
exceptions to such report, with supporting brief if desired. Within 7 
days from the last date on which exceptions and any supporting brief may 
be filed, or such further period as the Board may allow, a party 
opposing the exceptions may file an answering brief with the Board in 
Washington, DC. If no exceptions are filed to such report, the Board, 
upon the expiration of the period for filing such exceptions, may decide 
the matter forthwith upon the record or may make other disposition of 
the case. The Board shall thereupon proceed pursuant to Sec. 102.67: 
Provided, however, That in any with an unfair labor practice

[[Page 66]]

case for purposes of hearing the provisions of Sec. 102.46 of thes 
rules shall govern with respect to the filing of exceptions or an 
answering brief to the exceptions to the administrative law judge's 
decision.
    (g)(1)(i) In a proceeding pursuant to this section in which a 
hearing is held, the record in the case shall consist of the notice of 
hearing, motions, rulings, orders, stenographic report of the hearing, 
stipulations, exhibits, together with the objections to the conduct of 
the election or to conduct affecting the results of the election, any 
report on such objections, any report on challenged ballots, exceptions 
to any such report, any briefs or other legal memoranda submitted by the 
parties, the decision of the regional director, if any, and the record 
previously made as defined in Sec. 102.68. Materials other than those 
set out above shall not be a part of the record.
    (ii) In a proceeding pursuant to this section in which no hearing is 
held, the record shall consist of the objections to the conduct of the 
election or to conduct affecting the results of the election, any report 
on objections or on challenged ballots and any exceptions to such a 
report, any regional director's decision on objections or challenged 
ballots and any request for review of such a decision, any documentary 
evidence, excluding statements of witnesses, relied upon by the regional 
director in his decision or report, any briefs or other legal memoranda 
submitted by the parties, and any other motions, rulings or orders of 
the regional director. Materials other than those set out above shall 
not be a part of the record, except as provided in paragraph (g)(3) of 
this section.
    (2) Immediately upon issuance of a report on objections or 
challenges, or both, upon issuance by the regional director of an order 
transferring the case to the Board, or upon issuance of an order 
granting a request for review by the Board, the regional director shall 
transmit to the Board the record of the proceeding as defined in 
paragraph (g) (1) of this section.
    (3) In a proceeding pursuant to this section in which no hearing is 
held, a party filing exceptions to a regional director's report on 
objections or challenges, a request for review of a regional director's 
decision on objections or challenges, or any opposition thereto, may 
support its submission to the Board by appending thereto copies of 
documentary evidence, including copies of any affidavits, it has timely 
submitted to the regional director and which were not included in the 
report or decision. Documentary evidence so appended shall there upon 
become part of the record in the proceeding. Failure to timely submit 
such documentary evidence to the regional director, or to append that 
evidence to its submission to the Board in the representation proceeding 
as provided above, shall preclude a party from replying on such evidence 
in any subsequent related unfair labor proceeding.
    (h) In any such case in which the regional director or the Board, 
upon a ruling on challenged ballots, has directed that such ballots be 
opened and counted and a revised tally of ballots issued, and no 
objection to such revised tally is filed by any party within 7 days 
after the revised tally of ballots has been made available, the regional 
director shall forthwith issue to the parties certification of the 
results of the election, including certifications of representative 
where appropriate, with the same force and effect as if issued by the 
Board. The proceeding shall thereupon be closed.
    (i)(1) The action of the regional director in issuing a notice of 
hearing on objections or challenged ballots, or both, following 
proceedings under Sec. 102.62(b) shall constitute a transfer of the 
case to the Board, and the provisions of Sec. 102.65(c) shall apply 
with respect to special permission to appeal to the Board from any such 
direction of hearing.
    (2) Exceptions, if any, to the hearing officer's report or to the 
administrative law judge's decision, and any answering brief to such 
exceptions, shall be filed with the Board in Washington, DC, in 
accordance with paragraph (f) of this section.
    (j)(1) All documents filed with the Board under the provisions of 
this section shall be filed in eight copies, double spaced, on 8\1/2\- 
by 11-inch paper, and shall be printed or otherwise legibly

[[Page 67]]

duplicated. Carbon copies of typewritten materials will not be accepted. 
Briefs in support of exceptions or answering briefs shall not exceed 50 
pages in length, exclusive of subject index and table of cases and other 
authorities cited, unless permission to exceed that limit is obtained 
from the Board by motion, setting forth the reasons therefor, filed not 
less than 5 days, including Saturdays, Sundays, and holidays, prior to 
the date the brief is due. Where any brief filed pursuant to this 
section exceeds 20 pages, it shall contain a subject index with page 
references and an alphabetical table of cases and other authorities 
cited.
    (2) The party filing with the Board exceptions to a report, a 
supporting brief, or an answering brief shall serve a copy thereof on 
the other parties and shall file a copy with the regional director. A 
statement of such service shall be filed with the Board together with 
the document.
    (3) Requests for extensions of time to file exceptions to a report, 
supporting briefs, or answering briefs, as permitted by this section, 
shall be filed with the Board on the Regional Director, as the case may 
be. The party filing the request for an extension of time shall serve a 
copy thereof on the other parties and, if filed with the Board, or the 
Regional Director. A statement of such service shall be filed with the 
document.

[38 FR 3961, Feb. 8, 1973, as amended at 46 FR 45923, Sept. 15, 1981; 47 
FR 40772, Sept. 15, 1982; 47 FR 42569, Sept. 28, 1982; 51 FR 23747, July 
1, 1986; 51 FR 32919, Sept. 17, 1986; 56 FR 49144, Sept. 27, 1991; 60 FR 
56235, Nov. 8, 1995]



Sec. 102.70  Runoff election.

    (a) The regional director shall conduct a runoff election, without 
further order of the Board, when an election in which the ballot 
provided for not less than three choices (i.e., at least two 
representatives and ``neither'') results in no choice receiving a 
majority of the valid ballots cast and no objections are filed as 
provided in Sec. 102.69. Only one runoff shall be held pursuant to this 
section.
    (b) Employees who were eligible to vote in the election and who are 
in an eligible category on the date of the runoff election shall be 
eligible to vote in the runoff election.
    (c) The ballot in the runoff election shall provide for a selection 
between the two choices receiving the largest and second largest number 
of votes.
    (d) In the event the number of votes cast in an inconclusive 
election in which the ballot provided for a choice among two or more 
representatives and ``neither'' or ``none'' is equally divided among the 
several choices; or in the event the number of ballots cast for one 
choice in such election is equal to the number cast for another of the 
choices but less than the number cast for the third choice, the regional 
director shall declare the first election a nullity and shall conduct 
another election, providing for a selection from among the three choices 
afforded in the original ballot; and he shall thereafter proceed in 
accordance with paragraphs (a), (b), and (c) of this section. In the 
event two or more choices receive the same number of ballots and another 
choice receives no ballots and there are no challenged ballots that 
would affect the results of the election, and if all eligible voters 
have cast valid ballots, there shall be no runoff election and a 
certification of results of election shall be issued. Only one such 
further election pursuant to this paragraph may be held.
    (e) Upon the conclusion of the runoff election, the provisions of 
Sec. 102.69 shall govern, insofar as applicable.

[26 FR 3891, May 4, 1961]



Sec. 102.71  Dismissal of petition; refusal to proceed with petition; 
requests for review by the Board of action of the regional director.

    (a) If, after a petition has been filed and at any time prior to the 
close of hearing, it shall appear to the regional director that no 
further proceedings are warranted, the regional director may dismiss the 
petition by administrative action and shall so advise the petitioner in 
writing, setting forth a simple statement of the procedural or other 
grounds for the dismissal, with copies to the other parties to the 
proceeding. Any party may obtain a review of such action by filing a 
request therefor with the Board in Washington, DC, in accordance with 
the provisions

[[Page 68]]

of paragraph (c) of this section. A request for review from an action of 
a regional director pursuant to this subsection may be granted only upon 
one or more of the following grounds:
    (1) That a substantial question of law or policy is raised because 
of (i) the absence of, or (ii) a departure from, officially reported 
Board precedent.
    (2) There are compelling reasons for reconsideration of an important 
Board rule or policy.
    (3) The request for review is accompanied by documentary evidence 
previously submitted to the regional director raising serious doubts as 
to the regional director's factual findings, thus indicating that there 
are factual issues which can best be resolved upon the basis of a record 
developed at a hearing.
    (4) The regional director's action is, on its face, arbitrary or 
capricious.
    (5) The petition raises issues which can best be resolved upon the 
basis of a record developed at a hearing.
    (b) Where the regional director dismisses a petition or directs that 
the proceeding on the petition be held in abeyance, and such action is 
taken because of the pendency of concurrent unresolved charges of unfair 
labor practices, and the regional director, upon request, has so 
notified the parties in writing, any party may obtain a review of the 
regional director's action by filing a request therefor with the Board 
in Washington, DC, in accordance with the provisions of paragraph (c) of 
this section. A review of an action of a regional director pursuant to 
this subsection may be granted only upon one or more of the following 
grounds:
    (1) That a substantial question of law or policy is raised because 
of (i) the absence of, or (ii) a departure from, officially reported 
Board precedent.
    (2) There are compelling reasons for reconsideration of an important 
Board rule or policy.
    (3) The regional director's action is, on its face, arbitrary or 
capricious.
    (c) A request for review must be filed with the Board in Washington, 
DC, and a copy filed with the regional director and copies served on all 
the other parties within 14 days of service of the notice of dismissal 
or notification that the petition is to be held in abeyance. The request 
shall be submitted in eight copies and shall contain a complete 
statement setting forth facts and reasons upon which the request is 
based. Such request shall be printed or otherwise legibly duplicated: 
Provided, however, That carbon copies of typewritten materials will not 
be accepted. Requests for an extension of time within which to file the 
request for review shall be filed with the Board in Washington, DC, and 
a statement of service shall accompany such request.

[39 FR 4080, Feb. 1, 1974, as amended at 40 FR 6204, Feb. 10, 1975; 51 
FR 23748, July 1, 1986]



Sec. 102.72  Filing petition with general counsel; investigation upon 

motion of general counsel; transfer of petition and proceeding from region 
to general counsel or to another region; consolidation of proceedings in 
          same region; severance; procedure before general counsel in 
          cases over which he has assumed jurisdiction.

    (a) Whenever it appears necessary in order to effectuate the 
purposes of the Act, or to avoid unnecessary costs of delay, the general 
counsel may permit a petition to be filed with him in Washington, DC, or 
may, at any time after a petition has been filed with a regional 
director pursuant to Sec. 102.60, order that such petition and any 
proceeding that may have been instituted with respect thereto:
    (1) Be transferred to and continued before him, for the purpose of 
investigation or consolidation with any other proceeding which may have 
been instituted in a regional office or with him; or
    (2) Be consolidated with any other proceeding which may have been 
instituted in the same region; or
    (3) Be transferred to and continued in any other region, for the 
purpose of investigation or consolidation with any proceeding which may 
have been instituted in or transferred to such region; or
    (4) Be severed from any other proceeding with which it may have been 
consolidated pursuant to this section.
    (b) The provisions of Sec. Sec. 102.60 to 102.71, inclusive, shall, 
insofar as applicable, apply to proceedings before the general counsel 
pursuant to this section, and

[[Page 69]]

the powers granted to regional directors in such provisions shall, for 
the purpose of this section, be reserved to and exercised by the general 
counsel. After the transfer of any petition and any proceeding which may 
have been instituted in respect thereto from one region to another 
pursuant to this section, the provisions of this subpart shall, insofar 
as applicable, govern such petition and such proceedings as if the 
petition has originally been filed in the region to which the transfer 
was made.
    (c) The regional director may exercise the powers in paragraph 
(a)(2) and (4) of this section with respect to proceedings pending in 
his region.

[32 FR 9550, July 1, 1967]



 Subpart D_Procedure for Unfair Labor Practice and Representation Cases 
               Under Sections 8(b)(7) and 9(c) of the Act



Sec. 102.73  Initiation of proceedings.

    Whenever it is charged that any person has engaged in an unfair 
labor practice within the meaning of section 8(b)(7) of the Act, the 
regional director shall investigate such charges, giving it the priority 
specified in subpart G of this part.



Sec. 102.74  Complaint and formal proceedings.

    If it appears to the regional director that the charge has merit, 
formal proceedings in respect thereto shall be instituted in accordance 
with the procedures described in Sec. Sec. 102.15 to 102.51, inclusive, 
insofar as they are applicable, and insofar as they are not inconsistent 
with the provisions of this subpart. If it appears to the regional 
director that issuance of a complaint is not warranted, he shall decline 
to issue a complaint, and the provisions of Sec. 102.19, including the 
provisions for appeal to the general counsel, shall be applicable unless 
an election has been directed under Sec. Sec. 102.77 and 102.78, in 
which event the provisions of Sec. 102.81 shall be applicable.



Sec. 102.75  Suspension of proceedings on the charge where timely petition 
is filed.

    If it appears to the regional director that issuance of a complaint 
may be warranted but for the pendency of a petition under section 9(c) 
of the Act, which has been filed by any proper party within a reasonable 
time not to exceed 30 days from the commencement of picketing, the 
regional director shall suspend proceedings on the charge and shall 
proceed to investigate the petition under the expedited procedure 
provided below, pursuant to the first proviso to subparagraph (C) of 
section 8(b)(7) of the Act.



Sec. 102.76  Petition; who may file; where to file; contents.

    When picketing of an employer has been conducted for an object 
proscribed by section 8(b)(7) of the Act, a petition for the 
determination of a question concerning representation of the employees 
of such employer may be filed in accordance with the provisions of 
Sec. Sec. 102.60 and 102.61, insofar as applicable: Provided, however, 
That if a charge under Sec. 102.73 has been filed against the labor 
organization on whose behalf picketing has been conducted, the petition 
shall not be required to contain a statement that the employer declines 
to recognize the petitioner as the representative within the meaning of 
section 9(a) of the Act; or that the labor organization is currently 
recognized but desires certification under the act; or that the 
individuals or labor organizations who have been certified or are 
currently recognized by the employer are no longer the representative; 
or, if the petitioner is an employer, that one or more individuals or 
labor organizations have presented to the petitioner a claim to be 
recognized as the exclusive representative of the employees in the unit 
claimed to be appropriate.



Sec. 102.77  Investigation of petition by regional director; directed election.

    (a) Where a petition has been filed pursuant to Sec. 102.76 the 
regional director shall make an investigation of the matters and 
allegations set forth therein. Any party, and any individual or labor 
organization purporting to act

[[Page 70]]

as representative of the employees involved and any labor organization 
on whose behalf picketing has been conducted as described in section 
8(b)(7)(C) of the Act may present documentary and other evidence 
relating to the matters and allegations set forth in the petition.
    (b) If after the investigation of such petition or any petition 
filed under subpart C of these rules, and after the investigation of the 
charge filed pursuant to Sec. 102.73, it appears to the regional 
director that an expedited election under section 8(b)(7)(C) is 
warranted, and that the policies of the act would be effectuated 
thereby, he shall forthwith proceed to conduct an election by secret 
ballot of the employees in an appropriate unit, or make other 
disposition of the matter: Provided, however, That in any case in which 
it appears to the regional director that the proceeding raises questions 
which cannot be decided without a hearing, he may issue and cause to be 
served on the parties, individuals, and labor organizations involved a 
notice of hearing before a hearing officer at a time and place fixed 
therein. In this event, the method of conducting the hearing and the 
procedure following, including transfer of the case to the Board, shall 
be governed insofar as applicable by Sec. Sec. 102.63 to 102.68, 
inclusive, except that the parties shall not file briefs without special 
permission of the regional director or the Board, as the case may be, 
but shall, however, state their respective legal positions upon the 
record at the close of the hearing, and except that any request for 
review of a decision of the regional director shall be filed promptly 
after the issuance of such decision.

[24 FR 9102, Nov. 7, 1959, as amended at 26 FR 3892, May 4, 1961]



Sec. 102.78  Election procedure; method of conducting balloting; 
postballoting procedure.

    If no agreement such as that provided in Sec. 102.79 has been made, 
the regional director shall fix the time and place of the election, 
eligibility requirements for voting, and other arrangements for the 
balloting. The method of conducting the balloting and the postballoting 
procedure shall be governed, insofar as applicable, by the provisions of 
Sec. Sec. 102.69 and 102.70 except that the labor organization on whose 
behalf picketing has been conducted may not have its name removed from 
the ballot without the consent of the regional director and except that 
the regional director's rulings on any objections or challenged ballots 
shall be final unless the Board grants special permission to appeal from 
the regional director's rulings. Any request for such permission shall 
be filed promptly, in writing, and shall briefly state the grounds 
relied upon. The party requesting review shall immediately serve a copy 
thereof on each other party. A request for review shall not operate as a 
stay of the regional director's rulings unless so ordered by the Board.



Sec. 102.79  Consent-election agreements.

    Where a petition has been duly filed, the parties involved may, 
subject to the approval of the regional director, enter into an 
agreement governing the method of conducting the election as provided 
for in Sec. 102.62(a), insofar as applicable.



Sec. 102.80  Dismissal of petition; refusal to process petition under 
expedited procedure.

    (a) If, after a petition has been filed pursuant to the provisions 
of Sec. 102.76, and prior to the close of the hearing, it shall appear 
to the regional director that further proceedings in respect thereto in 
accordance with the provisions of Sec. 102.77 are not warranted, he may 
dismiss the petition by administrative action, and the action of the 
regional director shall be final, subject to a prompt appeal to the 
Board on special permission which may be granted by the Board. Upon such 
appeal the provisions of Sec. 102.71 shall govern insofar as 
applicable. Such appeal shall not operate as a stay unless specifically 
ordered by the Board.
    (b) If it shall appear to the regional director that an expedited 
election is not warranted but that proceedings under subpart C of this 
part are warranted, he shall so notify the parties in writing with a 
simple statement of the grounds for his decision.

[[Page 71]]

    (c) Where the regional director, pursuant to Sec. Sec. 102.77 and 
102.78, has determined that a hearing prior to election is not required 
to resolve the issues raised by the petition and has directed an 
expedited election, any party aggrieved may file a request with the 
Board for special permission to appeal from such determination. Such 
request shall be filed promptly, in writing, and shall briefly state the 
grounds relied upon. The party requesting such appeal shall immediately 
serve a copy thereof on each other party. Should the Board grant the 
requested permission to appeal, such action shall not, unless 
specifically ordered by the Board, operate as a stay of any action by 
the regional director.

[24 FR 9102, Nov. 7, 1959, as amended at 26 FR 3892, May 4, 1961]



Sec. 102.81  Review by the general counsel of refusal to proceed on charge; 

resumption of proceedings upon charge held during pendency of petition; 
review by the general counsel of refusal to proceed on related charge.

    (a) Where an election has been directed by the regional director or 
the Board in accordance with the provisions of Sec. Sec. 102.77 and 
102.78, the regional director shall decline to issue a complaint on the 
charge, and he shall so advise the parties in writing, accompanied by a 
simple statement of the procedural or other grounds for his action. The 
person making the charge may obtain a review of such action by filing an 
appeal with the general counsel in Washington, DC, and filing a copy of 
the appeal with the regional director, within 7 days from the service of 
the notice of such refusal by the regional director. In all other 
respects the appeal shall be subject to the provisions of Sec. 102.19. 
Such appeal shall not operate as a stay of any action by the regional 
director.
    (b) Where an election has not been directed and the petition has 
been dismissed in accordance with the provisions of Sec. 102.80, the 
regional director shall resume investigation of the charge and shall 
proceed in accordance with Sec. 102.74.
    (c) If in connection with an 8(b)(7) proceeding, unfair labor 
practice charges under other sections of the act have been filed and the 
regional director upon investigation has declined to issue a complaint 
upon such charges, he shall so advise the parties in writing, 
accompanied by a simple statement of the procedural or other grounds for 
his action. The person making such charges may obtain a review of such 
action by filing an appeal with the general counsel in Washington, DC, 
and filing a copy of the appeal with the regional director, within 7 
days from the service of the notice of such refusal by the regional 
director. In all other respects the appeal shall be subject to the 
provisions of Sec. 102.19.

[32 FR 9550, July 1, 1967, as amended at 51 FR 23749, July 1, 1986]



Sec. 102.82  Transfer, consolidation, and severance.

    The provisions of Sec. Sec. 102.33 and 102.72, respecting the 
filing of a charge or petition with the general counsel and the 
transfer, consolidation, and severance of proceedings, shall apply to 
proceedings under this subpart, except that the provisions of Sec. Sec. 
102.73 to 102.81, inclusive, shall govern proceedings before the general 
counsel.



    Subpart E_Procedure for Referendum Under Section 9(e) of the Act



Sec. 102.83  Petition for referendum under section 9(e)(1) of the Act; 
who may file; where to file; withdrawal.

    A petition to rescind the authority of a labor organization to make 
an agreement requiring as a condition of employment membership in such 
labor organization may be filed by an employee or group of employees on 
behalf of 30 percent or more of the employees in a bargaining unit 
covered by such an agreement. The petition shall be in writing and 
signed, and either shall be sworn to before a notary public, Board 
agent, or other person duly authorized by law to administer oaths and 
take acknowledgments or shall contain a declaration by the person 
signing it, under the penalties of the Criminal Code, that its contents 
are true and correct to the best of his knowledge and belief. One 
original of the petition

[[Page 72]]

shall be filed with the Regional Director wherein the bargaining unit 
exists or, if the unit exists in two or more Regions, with the Regional 
Director for any of such Regions. A person filing a petition by 
facsimile pursuant to Sec. 102.114(f) shall also file an original for 
the Agency's records, but failure to do so shall not affect the validity 
of the filing by facsimile, if otherwise proper. The petition may be 
withdrawn only with the approval of the Regional Director with whom such 
petition was filed, except that if the proceeding has been transferred 
to the Board, pursuant to Sec. 102.67, the petition may be withdrawn 
only with the consent of the Board. Upon approval of the withdrawal of 
any petition the case shall be closed.

[67 FR 658, Jan. 7, 2002]



Sec. 102.84  Contents of petition to rescind authority.

    (a) The name of the employer.
    (b) The address of the establishments involved.
    (c) The general nature of the employer's business.
    (d) A description of the bargaining unit involved.
    (e) The name and address of the labor organization whose authority 
it is desired to rescind.
    (f) The number of employees in the unit.
    (g) Whether there is a strike or picketing in progress at the 
establishment involved and, if so, the approximate number of employees 
participating, and the date such strike or picketing commenced.
    (h) The date of execution and of expiration of any contract in 
effect covering the unit involved.
    (i) The name and address of the person designated to accept service 
of documents for petitioners.
    (j) Any other relevant facts.



Sec. 102.85  Investigation of petition by regional director; consent 
referendum; directed referendum.

    Where a petition has been filed pursuant to Sec. 102.83 and it 
appears to the regional director that the petitioner has made an 
appropriate showing, in such form as the regional director may 
determine, that 30 percent or more of the employees within a unit 
covered by an agreement between their employer and a labor organization 
requiring membership in such labor organization desire to rescind the 
authority of such labor organization to make such an agreement, he shall 
proceed to conduct a secret ballot of the employees involved on the 
question whether they desire to rescind the authority of the labor 
organization to make such an agreement with their employer: Provided, 
however, That in any case in which it appears to the regional director 
that the proceeding raises questions which cannot be decided without a 
hearing, he may issue and cause to be served on the parties a notice of 
hearing before a hearing officer at a time and place fixed therein. The 
regional director shall fix the time and place of the election, 
eligibility requirements for voting, and other arrangements of the 
balloting, but the parties may enter into an agreement, subject to the 
approval of the regional director, fixing such arrangements. In any such 
consent agreements, provision may be made for final determination of all 
questions arising with respect to the balloting by the regional director 
or by the Board.

[26 FR 3892, May 4, 1961]



Sec. 102.86  Hearing; posthearing procedure.

    The method of conducting the hearing and the procedure following the 
hearing, including transfer of the case to the Board, shall be governed, 
insofar as applicable, by Sec. Sec. 102.63 to 102.68, inclusive.



Sec. 102.87  Method of conducting balloting; postballoting procedure.

    The method of conducting the balloting and the postballoting 
procedure shall be governed by the provisions of Sec. 102.69, insofar 
as applicable.



Sec. 102.88  Refusal to conduct referendum; appeal to Board.

    If, after a petition has been filed, and prior to the close of the 
hearing, it shall appear to the regional director that no referendum 
should be conducted, he shall dismiss the petition by administrative 
action. Such dismissal shall be in writing and accompanied by

[[Page 73]]

a simple statement of the procedural or other grounds. The petitioner 
may obtain a review of such action by filing a request therefor with the 
Board in Washington, DC, and filing a copy of such request with the 
regional director and the other parties within 14 days from the service 
of notice of such dismissal. The request shall contain a complete 
statement setting forth the facts and reasons upon which the request is 
based.

[51 FR 30636, Aug. 28, 1986]



 Subpart F_Procedure To Hear and Determine Disputes Under Section 10(k) 
                               of the Act



Sec. 102.89  Initiation of proceedings.

    Whenever it is charged that any person has engaged in an unfair 
labor practice within the meaning of paragraph (4)(D) of section 8(b) of 
the Act, the regional director of the office in which such charge is 
filed or to which it is referred shall, as soon as possible after the 
charge has been filed, serve upon the parties a copy of the charge 
together with a notice of the filing of the charge and shall investigate 
such charge and if it is deemed appropriate to seek injunctive relief of 
a district court pursuant to section 10(1) of the Act, he shall give it 
priority over all other cases in the office except other cases under 
section 10(1) and cases of like character.

[26 FR 7546, Aug. 15, 1961]



Sec. 102.90  Notice of filing of charge; notice of hearing; hearing; 
proceedings before the Board; briefs; determination of dispute.

    If it appears to the Regional Director that the charge has merit and 
the parties to the dispute have not submitted satisfactory evidence to 
the Regional Director that they have adjusted, or have agreed upon 
methods for the voluntary adjustment of, the dispute out of which such 
unfair labor practice shall have arisen, he shall cause to be served on 
all parties to such dispute a notice of hearing under section 10(k) of 
the Act before a hearing officer at a time and place fixed therein which 
shall be not less than 10 days after service of the notice of the filing 
of said charge. The notice of hearing shall contain a simple statement 
of the issues involved in such dispute. Such notice shall be issued 
promptly, and, in cases in which it is deemed appropriate to seek 
injunctive relief pursuant to section 10(l) of the Act, shall normally 
be issued within 5 days of the date upon which injunctive relief is 
first sought. Hearings shall be conducted by a hearing officer, and the 
procedure shall conform, insofar as applicable, to the procedure set 
forth in Sec. Sec. 102.64 to 102.68, inclusive. Upon the close of the 
hearing, the proceeding shall be transferred to the Board and the Board 
shall proceed either forthwith upon the record, or after oral argument, 
or the submission of briefs, or further hearing, to determine the 
dispute or make other disposition of the matter. Should any party desire 
to file a brief with the Board, eight copies thereof shall be filed with 
the Board in Washington, DC, within 7 days after the close of the 
hearing: Provided, however, That in cases involving the national defense 
and so designated in the notice of hearing no briefs shall be filed, and 
the parties, after the close of the evidence, may argue orally upon the 
record their respective contentions and positions: Provided further, 
That, in cases involving the national defense, upon application for 
leave to file briefs expeditiously made to the Board in Washington, DC, 
after the close of the hearing, the Board may for good cause shown grant 
such leave and thereupon specify the time for filing. Immediately upon 
such filing, a copy shall be served on the other parties. Such brief 
shall be printed or otherwise legibly duplicated: Provided, however, 
That carbon copies of typewritten matter shall not be filed and if 
submitted will not be accepted. Requests for extension of time in which 
to file a brief under authority of this section shall be in writing with 
copies thereof served on the other parties. No reply brief may be filed 
except upon special leave of the Board.

[56 FR 49144, Sept. 27, 1991]

[[Page 74]]



Sec. 102.91  Compliance with determination; further proceedings.

    If, after issuance of the determination by the Board, the parties 
submit to the regional director satisfactory evidence that they have 
complied with the determination, the regional director shall dismiss the 
charge. If no satisfactory evidence of compliance is submitted, the 
regional director shall proceed with the charge under paragraph (4)(D) 
of section 8(b) and section 10 of the Act and the procedure prescribed 
in Sec. Sec. 102.9 to 102.51, inclusive, shall, insofar as applicable, 
govern: Provided, however, That if the Board determination is that 
employees represented by a charged union are entitled to perform the 
work in dispute, the regional director shall dismiss the charge as to 
that union irrespective of whether the employer has complied with that 
determination.

[36 FR 9133, May 20, 1971]



Sec. 102.92  Review of determination.

    The record of the proceeding under section 10(k) and the 
determination of the Board thereon shall become a part of the record in 
such unfair labor practice proceeding and shall be subject to judicial 
review, insofar as it is in issue, in proceedings to enforce or review 
the final order of the Board under section 10 (e) and (f) of the Act.



Sec. 102.93  Alternative procedure.

    If, either before or after service of the notice of hearing, the 
parties submit to the regional director satisfactory evidence that they 
have adjusted the dispute, the regional director shall dismiss the 
charge and shall withdraw the notice of hearing if notice has issued. 
If, either before or after issuance of notice of hearing, the parties 
submit to the regional director satisfactory evidence that they have 
agreed upon methods for the voluntary adjustment of the dispute, the 
regional director shall defer action upon the charge and shall withdraw 
the notice of hearing if notice has issued. If it appears to the 
regional director that the dispute has not been adjusted in accordance 
with such agreed-upon methods and that an unfair labor practice within 
the meaning of section 8(b)(4)(D) of the Act is occurring or has 
occurred, he may issue a complaint under Sec. 102.15, and the procedure 
prescribed in Sec. Sec. 102.9 to 102.51, inclusive, shall, insofar as 
applicable, govern; and Sec. Sec. 102.90 to 102.92, inclusive, are 
inapplicable: Provided, however, That if an agreed-upon method for 
voluntary adjustment results in a determination that employees 
represented by a charged union are entitled to perform the work in 
dispute, the regional director shall dismiss the charge as to that union 
irrespective of whether the employer has complied with that 
determination.

[36 FR 9133, May 20, 1971]



 Subpart G_Procedure in Cases Under Section 10(j), (l), and (m) of the 
                                   Act



Sec. 102.94  Expeditious processing of section 10(j) cases.

    (a) Whenever temporary relief or a restraining order pursuant to 
section 10(j) of the Act has been procured by the Board, the complaint 
which has been the basis for such temporary relief or restraining order 
shall be heard expeditiously and the case shall be given priority by the 
Board in its successive steps following the issuance of the complaint 
(until ultimate enforcement or dismissal by the appropriate circuit 
court of appeals) over all other cases except cases of like character 
and cases under section 10 (l) and (m) of the Act.
    (b) In the event the trial examiner hearing a complaint, concerning 
which the Board has procured temporary relief or a restraining order 
pursuant to section 10(j), recommends a dismissal in whole or in part of 
such complaint, the chief law officer shall forthwith suggest to the 
district court which issued such temporary relief or restraining order 
the possible change in circumstances arising out of the findings and 
recommendations of the trial examiner.



Sec. 102.95  Priority of cases pursuant to section 10(l) and (m) of the Act.

    (a) Whenever a charge is filed alleging the commission of an unfair 
labor

[[Page 75]]

practice within the meaning of paragraph (4) (A), (B), (C), or (7) of 
section 8(b) of the Act, or section 8(e) of the Act, the regional office 
in which such charge is filed or to which it is referred shall give it 
priority over all other cases in the office except cases of like 
character and cases under paragraph (4)(D) of section 8(b) of the Act in 
which it is deemed appropriate to seek injunctive relief of a district 
court pursuant to section 10(l) of the Act.
    (b) Whenever a charge is filed alleging the commission of an unfair 
labor practice within the meaning of subsection (a)(3) or (b)(2) of 
section 8 of the Act, the regional office in which such charge is filed 
or to which it is referred shall give it priority over all other cases 
in the office except cases of like character and cases under section 
10(l) of the Act.



Sec. 102.96  Issuance of complaint promptly.

    Whenever the regional attorney or other Board officer to whom the 
matter may be referred seeks injunctive relief of a district court 
pursuant to section 10(l) of the Act, a complaint against the party or 
parties sought to be enjoined, covering the same subject matter as such 
application for injunctive relief, shall be issued promptly, normally 
within 5 days of the date upon which such injunctive relief is first 
sought, except in those cases under section 10(l) of the Act in which 
the procedure set forth in Sec. Sec. 102.90 to 102.92, inclusive, is 
deemed applicable.



Sec. 102.97  Expeditious processing of section 10(l) and (m) cases in 
successive stages.

    (a) Any complaint issued pursuant to Sec. 102.95(a) or, in a case 
in which it is deemed appropriate to seek injunctive relief of a 
district court pursuant to section 10(l) of the Act, any complaint 
issued pursuant to Sec. 102.93 or notice of hearing issued pursuant to 
Sec. 102.90 shall be heard expeditiously and the case shall be given 
priority in such successive steps following its issuance (until ultimate 
enforcement or dismissal by the appropriate circuit court of appeals) 
over all cases except cases of like character.
    (b) Any complaint issued pursuant to Sec. 102.95(b) shall be heard 
expeditiously and the case shall be given priority in its successive 
steps following its issuance (until ultimate enforcement or dismissal by 
the appropriate circuit court of appeals) over all cases except cases of 
like character and cases under section 10(l) of the Act.



   Subpart H_Declaratory Orders and Advisory Opinions Regarding Board 
                              Jurisdiction



Sec. 102.98  Petition for advisory opinion; who may file; where to file.

    Whenever an agency or court of any State or territory is in doubt 
whether the Board would assert jurisdiction over the parties in a 
proceeding pending before such agency or court, the agency or court may 
file a petition with the Board for an advisory opinion on whether the 
Board would decline to assert jurisdiction over the parties before the 
agency or the court (1) on the basis of its current standards, or (2) 
because the employing enterprise is not within the jurisdiction of the 
National Labor Relations Act.

[24 FR 9102, Nov. 7, 1959, as amended at 51 FR 15613, Apr. 25, 1986; 61 
FR 65182, Dec. 11, 1996]



Sec. 102.99  Contents of petition for advisory opinion; contents of 
request for administrative advice.

    (a) A petition for an advisory opinion, when filed by an agency or 
court of a State or territory, shall allege the following:
    (1) The name of the agency or court.
    (2) The names of the parties to the proceeding and the docket 
number.
    (3) The nature of the proceeding, and the need for the Board's 
opinion on the jurisdictional issue to the proceeding.
    (4) The general nature of the business involved in the proceeding 
and, where appropriate, the nature of and details concerning the 
employing enterprise.
    (5) The findings of the agency or court or, in the absence of 
findings, a statement of the evidence relating to the commerce 
operations of such business and, where appropriate, to the nature of the 
employing enterprise.
    (b) Eight copies of such petition or request shall be submitted to 
the Board

[[Page 76]]

in Washington, DC. Such petition or request shall be printed or 
otherwise legibly duplicated. Carbon copies of typewritten matter will 
not be accepted.

[24 FR 9102, Nov. 7, 1959, as amended at 51 FR 15613, Apr. 25, 1986; 61 
FR 65182, Dec. 11, 1996]



Sec. 102.100  Notice of petition; service of petition.

    Upon the filing of a petition the petitioner shall immediately serve 
in the manner provided by Sec. 102.114(a) of these rules a copy of the 
petition on all parties to the proceeding and on the director of the 
Board's regional office having jurisdiction over the territorial area in 
which such agency or court is located. A statement of service shall be 
filed with the petition as provided by Sec. 102.114(b) of the rules.

[51 FR 23749, July 1, 1986]



Sec. 102.101  Response to petition; service of response.

    Any party served with such petition may, within 14 days after 
service thereof, respond to the petition, admitting or denying its 
allegations. Eight copies of such response shall be filed with the Board 
in Washington, DC. Such response shall be printed or otherwise legibly 
duplicated: Provided however, That carbon copies of typewritten 
materials will not be accepted. Such response shall immediately be 
served on all other parties to the proceeding, and a statement of 
service shall be filed in accordance with the provisions of Sec. 
102.114(b) of these rules.

[51 FR 23749, July 1, 1986]



Sec. 102.102  Intervention.

    Any person desiring to intervene shall make a motion for 
intervention, stating the grounds upon which such person claims to have 
an interest in the petition. Eight copies of such motion shall be filed 
with the Board in Washington, DC. Such motion shall be printed or 
otherwise legibly duplicated: Provided, however, That carbon copies of 
typewritten matter shall not be filed and if submitted will not be 
accepted.

[29 FR 15922, Nov. 28, 1964]



Sec. 102.103  Proceedings before the Board; briefs; advisory opinions.

    The Board shall thereupon proceed, upon the petition, responses, and 
submission of briefs, to determine whether, on the facts before it, the 
commerce operations of the employer involved are such that it would or 
would not assert jurisdiction. Such determination shall be in the form 
of an advisory opinion and shall be served upon the parties. No briefs 
shall be filed except upon special permission of the Board.



Sec. 102.104  Withdrawal of petition.

    The petitioner may withdraw his petition at any time prior to 
issuance of the Board's advisory opinion.



Sec. 102.105  Petitions for declaratory orders; who may file; where 
to file; withdrawal.

    Whenever both an unfair labor practice charge and a representation 
case relating to the same employer are contemporaneously on file in a 
regional office of the Board, and the general counsel entertains doubt 
whether the Board would assert jurisdiction over the employer involved, 
he may file a petition with the Board for a declaratory order disposing 
of the jurisdictional issue in the cases. Such petition may be withdrawn 
at any time prior to the issuance of the Board's order.



Sec. 102.106  Contents of petition for declaratory order.

    A petition for a declaratory order shall allege the following:
    (a) The name of the employer.
    (b) The general nature of the employer's business.
    (c) The case numbers of the unfair labor practice and representation 
cases.
    (d) The commerce data relating to the operations of such business.
    (e) Whether any proceeding involving the same subject matter is 
pending before an agency or court of a State or territory. Eight copies 
of the petition shall be filed with the Board in Washington, DC. Such 
petition shall be printed or otherwise legibly duplicated: Provided, 
however, That carbon copies of typewritten matter shall not be filed and 
if submitted will not be accepted.

[[Page 77]]

    (f) Seven copies of the petition shall be filed with the Board in 
Washington, DC. Such petition shall be printed or otherwise legibly 
duplicated: Provided, however, That carbon copies of typewritten matter 
shall not be filed and if submitted will not be accepted.

[24 FR 9102, Nov. 7, 1959, as amended at 27 FR 5095, May 30, 1962; 29 FR 
15922, Nov. 28, 1964]



Sec. 102.107  Notice of petition, service of petition.

    Upon filing a petition, the general counsel shall immediately serve 
a copy thereof on all parties and shall file a statement of service as 
provided by Sec. 102.114(b) of these rules.

[51 FR 23749, July 1, 1986]



Sec. 102.108  Response to petition; service of response.

    Any party to the representation or unfair labor practice case may, 
within 14 days after service thereof, respond to the petition, admitting 
or denying its allegations. Eight copies of such response shall be filed 
with the Board in Washington, DC. Such response shall be printed or 
otherwise legibly duplicated: Provided, however, That carbon copies of 
typewritten materials will not be accepted. Such response shall be 
served on the general counsel and all other parties, and a statement of 
service shall be filed as provided by Sec. 102.114(b) of these rules.

[51 FR 23749, July 1, 1986]



Sec. 102.109  Intervention.

    Any person desiring to intervene shall make a motion for 
intervention, stating the grounds upon which such person claims to have 
an interest in the petition. Eight copies of such motion shall be filed 
with the Board in Washington, DC. Such motion shall be printed or 
otherwise legibly duplicated: Provided, however, That carbon copies of 
typewritten matter shall not be filed and if submitted will not be 
accepted.

[29 FR 15922, Nov. 28, 1964]



Sec. 102.110  Proceedings before the Board; briefs; declaratory orders.

    The Board shall thereupon proceed, upon the petition, responses, and 
submission of briefs, to determine whether, on the facts before it, the 
commerce operations of the employer involved are such that it would or 
would not assert jurisdiction over them. Such determination shall be 
made by a declaratory order, with like effect as in the case of other 
orders of the Board, and shall be served upon the parties. Any party 
desiring to file a brief shall file eight copies with the Board in 
Washington, DC, with a statement that copies thereof are being served 
simultaneously on the other parties.

[29 FR 15922, Nov. 28, 1964]



                 Subpart I_Service and Filing of Papers



Sec. 102.111  Time computation.

    (a) In computing any period of time prescribed or allowed by these 
rules, the day of the act, event, or default after which the designated 
period of time begins to run is not to be included. The last day of the 
period so computed is to be included, unless it is a Saturday, Sunday, 
or a legal holiday, in which event the period runs until the official 
closing time of the receiving office on the next Agency business day 
(see appendix A to this part 102 setting forth the official business 
hours of the Agency's several offices). When the period of time 
prescribed or allowed is less than 7 days, intermediate Saturdays, 
Sundays, and holidays shall be excluded in the computation.
    (b) When the Act or any of these rules require the filing of a 
motion, brief, exception, or other paper in any proceeding, such 
document must be received by the Board or the officer or agent 
designated to receive such matter before the official closing time of 
the receiving office on the last day of the time limit, if any, for such 
filing or extension of time that may have been granted (see appendix A 
to the part 102 setting forth the official business hours of the 
Agency's several offices). A request for an extension of time to file a 
document shall be filed no later than the official closing time of the 
receiving office on the date on which the document is due. Requests for 
extensions of time filed within three days of the due date must be 
grounded upon circumstances not reasonably foreseeable

[[Page 78]]

in advance. In construing this section of the rules, the Board will 
accept as timely filed any document which is hand delivered to the Board 
on or before the official closing time of the receiving office on the 
due date or postmarked on the day before (or earlier than) the due date; 
documents which are postmarked on or after the due date are untimely. 
``Postmarking'' shall include timely depositing the document with a 
delivery service that will provide a record showing that the document 
was tendered to the delivery service in sufficient time for delivery by 
the due date, but in no event later than the day before the due date. 
Provided, however, The following documents must be received on or before 
the official closing time of the receiving office on the last day for 
filing:
    (1) Charges filed pursuant to section 10(b) of the Act (see also 
Sec. 102.14).
    (2) Applications for awards and fees and other expenses under the 
Equal Access to Justice Act.
    (3) Petitions to revoke subpoenas.
    (4) Requests for extensions of time to file any document for which 
such an extension may be granted.
    (c) The following documents may be filed within a reasonable time 
after the time prescribed by these rules only upon good cause shown 
based on excusable neglect and when no undue prejudice would result:
    (1) In unfair labor practice proceedings, motions, exceptions, 
answers to a complaint or a backpay specification, and briefs; and
    (2) In representation proceedings, exceptions, requests for review, 
motions, briefs, and any responses to any of these documents. A party 
seeking to file such documents beyond the time prescribed by these rules 
shall file, along with the document, a motion that states the grounds 
relied on for requesting permission to file untimely. The specific facts 
relied on to support the motion shall be set forth in affidavit form and 
sworn to by individuals with personal knowledge of the facts. The time 
for filing any document responding to the untimely document shall not 
commence until the date a ruling issues accepting the untimely document. 
In addition, cross-exceptions shall be due within 14 days, or such 
further period as the Board may allow, from the date a ruling issues 
accepting the untimely filed documents.

[56 FR 49144, Sept. 27, 1991 as amended at 57 FR 4157, Feb. 4, 1992; 57 
FR 9977, Mar. 23, 1992; 67 FR 70696, Nov. 26, 2002]



Sec. 102.112  Date of service; date of filing.

    The date of service shall be the day when the matter served is 
deposited in the United States mail, or is deposited with a private 
delivery service that will provide a record showing the date the 
document was tendered to the delivery service, or is delivered in 
person, as the case may be. Where service is made by facsimile 
transmission, the date of service shall be the date on which 
transmission is received. The date of filing shall be the day when the 
matter is required to be received by the Board as provided by Sec. 
102.111.

[60 FR 56235, Nov. 8, 1995]



Sec. 102.113  Methods of service of process and papers by the Agency; 
proof of service.

    (a) Service of complaints and compliance specifications. Complaints 
and accompanying notices of hearing, compliance specifications, and 
amendments to either complaints or to compliance specifications, shall 
be served upon all parties either personally or by registered or 
certified mail or by telegraph, or by leaving a copy thereof at the 
principal office or place of business of the person required to be 
served.
    (b) Service of final orders and decisions. Final orders of the Board 
in unfair labor practice cases and administrative law judges' decisions 
shall be served upon all parties either personally or by registered or 
certified mail or by telegraph, or by leaving a copy thereof at the 
principal office or place of business of the person required to be 
served.
    (c) Service of subpoenas. Subpoenas shall be served upon the 
recipient either personally or by registered or certified mail or by 
telegraph, or by leaving a copy thereof at the principal office or place 
of business of the person required to be served.
    (d) Service of other documents. Other documents may be served by the 
Agency by any of the foregoing methods as well as regular mail or 
private delivery service. Such other documents may be

[[Page 79]]

served by facsimile transmission with the permission of the person 
receiving the document.
    (e) Proof of service. In the case of personal service, or delivery 
to a principal office or place of business, the verified return by the 
individual so serving the same, setting forth the manner of such 
service, shall be proof of the same. In the case of service by mail or 
telegraph, the return post office receipt or telegraph receipt therefor 
when registered or certified and mailed or when telegraphed shall be 
proof of service of the same. However, these methods of proof of service 
are not exclusive; any sufficient proof may be relied upon to establish 
service.
    (f) Service upon representatives of parties. Whenever these rules 
require or permit the service of pleadings or other papers upon a party, 
a copy shall also be served on any attorney or other representative of 
the party who has entered a written appearance in the proceeding on 
behalf of the party. If a party is represented by more than one attorney 
or representative, service upon any one of such persons in addition to 
the party shall satisfy this requirement. Service by the Board or its 
agents of any documents upon any such attorney or other representative 
may be accomplished by any means of service permitted by these rules, 
including regular mail.

[60 FR 56236, Nov. 8, 1995]



Sec. 102.114  Filing and service of papers by parties; form of papers; 
manner and proof of filing or service; electronic filings.

    (a) Service of papers by a party on other parties may be made 
personally, or by registered mail, certified mail, regular mail, or 
private delivery service. Service of papers by a party on other parties 
by any other means, including facsimile transmission, is permitted only 
with the consent of the party being served. Unless otherwise specified 
elsewhere in these rules, service on all parties shall be made in the 
same manner as that utilized in filing the paper with the Board, or in a 
more expeditious manner; however, when filing with the Board is done by 
hand, the other parties shall be promptly notified of such action by 
telephone, followed by service of a copy in a manner designed to insure 
receipt by them by the close of the next business day. The provisions of 
this section apply to the General Counsel after a complaint has issued, 
just as they do to any other party, except to the extent that the 
provisions of Sec. Sec. 102.113(a) or 102.113(c) provide otherwise.
    (b) When service is made by registered mail, or by certified mail, 
the return post office receipt shall be proof of service. When service 
is made by a private delivery service, the receipt from that service 
showing delivery shall be proof of service. However, these methods of 
proof of service are not exclusive; any sufficient proof may be relied 
upon to establish service.
    (c) Failure to comply with the requirements of this section relating 
to timeliness of service on other parties shall be a basis for either:
    (1) A rejection of the document; or
    (2) Withholding or reconsidering any ruling on the subject matter 
raised by the document until after service has been made and the served 
party has had reasonable opportunity to respond.
    (d) Papers filed with the Board, General Counsel, Regional Director, 
Administrative Law Judge, or Hearing Officer shall be typewritten or 
otherwise legibly duplicated on 8\1/2\ by 11-inch plain white paper, 
shall have margins no less than one inch on each side, shall be in a 
typeface no smaller than 12 characters-per-inch (elite or the 
equivalent), and shall be double spaced (except that quotations and 
footnotes may be single spaced). Carbon copies shall not be filed and 
will not be accepted. Nonconforming papers may, at the Agency's 
discretion, be rejected.
    (e) The person or party serving the papers or process on other 
parties in conformance with Sec. 102.113 and paragraph (a) of this 
section shall submit a written statement of service thereof to the Board 
stating the names of the parties served and the date and manner of 
service. Proof of service as defined in paragraph (a) of this section 
shall be required by the Board only if subsequent to the receipt of the 
statement of service a question is raised with respect to proper 
service. Failure to make proof of service does not affect the validity 
of the service.

[[Page 80]]

    (f) Unfair labor practice charges, petitions in representation 
proceedings, objections to elections, and requests for extensions of 
time for filing documents will be accepted by the Agency if transmitted 
to the facsimile machine of the appropriate office. Other documents, 
except those specifically prohibited in paragraph (g) of this section, 
will be accepted by the Agency if transmitted to the facsimile machine 
of the office designated to receive them only with advance permission 
from the receiving office which may be obtained by telephone. Advance 
permission must be obtained for each such filing. At the discretion of 
the receiving office, the person submitting a document by facsimile may 
be required simultaneously to serve the original and any required copies 
on the office by overnight delivery service. When filing a charge, a 
petition in a representation proceeding, or election objections by 
facsimile transmission pursuant to this section, receipt of the 
transmitted document by the Agency constitutes filing with the Agency. A 
failure to timely file or serve a document will not be excused on the 
basis of a claim that transmission could not be accomplished because the 
receiving machine was off-line or busy or unavailable for any other 
reason.
    (g) Facsimile transmissions of the following documents will not be 
accepted for filing: Showing of Interest in Support of Representation 
Petitions, including Decertification Petitions; Answers to Complaints; 
Exceptions or Cross-Exceptions; Briefs; Requests for Review of Regional 
Director Decisions; Administrative Appeals from Dismissal of Petitions 
or Unfair Labor Practice Charges; Objections to Settlements; EAJA 
Applications; Motions for Default Judgment; Motions for Summary 
Judgment; Motions to Dismiss; Motions for Reconsideration; Motions to 
Clarify; Motions to Reopen the Record; Motions to Intervene; Motions to 
Transfer, Consolidate or Sever; or Petitions for Advisory Opinions. 
Facsimile transmissions in contravention of this rule will not be filed.
    (h) Documents and other papers filed through facsimile transmission 
shall be served on all parties in the same way as used to serve the 
office where filed, or in a more expeditious manner, in conformance with 
paragraph (a) of this section. Thus, facsimile transmission shall be 
used for this purpose whenever possible. When a party cannot be served 
by this method, or chooses not to accept service by facsimile as 
provided for in paragraph (a) of this section, the party shall be 
notified personally or by telephone of the substance of the transmitted 
document and a copy of the document shall be served by personal service 
or overnight delivery service.
    (i) The Agency's Web site (http://www.nlrb.gov) contains certain 
forms that parties or other persons are permitted to file with the 
Agency electronically. Parties or other persons choosing to utilize 
those forms to file documents electronically are permitted do so by 
following the instructions described on the Web site, notwithstanding 
any contrary provisions elsewhere in these rules. In the event the 
document being filed electronically is required to be served on another 
party to a proceeding, the other party shall be notified by telephone of 
the substance of the transmitted document and a copy of the document 
shall be served by personal service no later than the next day, by 
overnight delivery service, or, with the permission of the party 
receiving the document, by facsimile transmission.

[60 FR 56236, Nov. 8, 1995, as amended at 67 FR 70695, Nov. 26, 2002; 69 
FR 1677, Jan. 12, 2004]



           Subpart J_Certification and Signature of Documents



Sec. 102.115  Certification of papers and documents.

    The executive secretary of the Board or, in the event of his absence 
or disability, whosoever may be designated by the Board in his place and 
stead shall certify copies of all papers and documents which are a part 
of any of the files or records of the Board as may be necessary or 
desirable from time to time.



Sec. 102.116  Signature of orders.

    The executive secretary or the associate executive secretary or, in 
the event of their absence or disability,

[[Page 81]]

whosoever may be designated by the Board in their place and stead is 
hereby authorized to sign all orders of the Board.



                    Subpart K_Records and Information



Sec. 102.117  Board materials and formal documents available for public 

inspection and copying; requests for described records; time limit for 
response; appeal 
          from denial of request; fees for document search and 
          duplication; files and records not subject to inspection.

    (a)(1) This subpart contains the rules that the National Labor 
Relations Board follows in processing requests for records under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552. Information routinely 
provided to the public as part of a regular Agency activity (for 
example, press releases issued by the Division of Information) may be 
provided to the public without following this subpart. Such records may 
also be made available in the Agency's reading room in paper form, as 
well as electronically to facilitate public access. As a matter of 
policy, the Agency will consider making discretionary disclosures of 
records or information exempt under the FOIA whenever disclosure would 
not foreseeably harm an interest protected by a FOIA exemption, but this 
policy does not create any right enforceable in court.
    (2) The following materials are available to the public for 
inspection and copying during normal business hours:
    (i) All final opinions and orders made in the adjudication of cases;
    (ii) Statements of policy and interpretations that are not published 
in the Federal Register;
    (iii) Administrative staff manuals and instructions that affect any 
member of the public (excepting those establishing internal operating 
rules, guidelines, and procedures for investigation, trial, and 
settlement of cases);
    (iv) A current index of final opinions and orders in the 
adjudication of cases;
    (v) A record of the final votes of each Member of the Board in every 
Agency proceeding;
    (vi) Records which have been released and which the Agency 
determines, because of their subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records; and
    (vii) A general index of records referred to in paragraph (a)(2)(vi) 
of this section. Items in paragraphs (a)(2)(i) through (vii) of this 
section are available for inspection and copying during normal business 
hours at the Board's offices in Washington, DC. Items in paragraph 
(a)(2)(iii) of this section are also available for inspection and 
copying during normal business hours at each Regional, Subregional, and 
Resident Office of the Board. Final opinions and orders made by Regional 
Directors in the adjudication of representation cases pursuant to the 
delegation of authority from the Board under section 3(b) of the Act are 
available to the public for inspection and copying in the original 
office where issued. Records encompassed within paragraphs (a)(2)(i) 
through (a)(2)(vii) of this section created on or afterNovember 1, 1996, 
will be made available by November 1, 1997, to the public by computer 
telecommunications or, if computer telecommunications means have not 
been established by the Agency, by other electronic means. The Agency 
shall maintain and make available for public inspection and copying a 
current subject matter index of all reading room materials which shall 
be updated regularly, at least quarterly, with respect to newly included 
records. Copies of the index are available upon request for a fee of the 
direct cost of duplication. The index of FOIA-processed records referred 
to in paragraph (a)(2)(vii) of this section will be available by 
computer telecommunications by December 31, 1999.
    (3) Copies of forms prescribed by the board for the filing of 
charges under section 10 alleging violations of the Act under section 8, 
or petitions under section 9, may be obtained without charge from any 
Regional, Subregional, or Resident Office of the Board. These forms are 
available electronically through the Agency's World Wide Web site (which 
can be found at http://www.nlrb.gov).
    (4) The Agency shall, on or before February 1, 1998, and annually 
thereafter, submit a FOIA report covering

[[Page 82]]

the preceding fiscal year to the Attorney General of the United States. 
The report shall include those matters required by 5 U.S.C. 552(e), and 
shall be made available electronically.
    (b)(1) The formal documents constituting the record in a case or 
proceeding are matters of official record and, until officially 
destroyed pursuant to applicable statutory authority, are available to 
the public for inspection and copying during normal business hours at 
the appropriate Regional Office of the Board or at the Board's office in 
Washington, DC, as the case may be. If the case or proceeding has been 
closed for more than 2 years, the appropriate Regional Office of the 
Board or the Board's office in Washington, DC, upon request, will 
contact the Federal Records Center to obtain the records.
    (2) The Executive Secretary shall certify copies of all formal 
documents upon request made a reasonable time in advance of need and 
payment of lawfully prescribed costs.
    (c)(1) Requests for the inspection and copying of records other than 
those specified in paragraphs (a) and (b) of this section must be in 
writing and must reasonably describe the record in a manner to permit 
its identification and location. The envelope and the letter, or the 
cover sheet of any fax transmittal, should be clearly marked to indicate 
that it contains a request for records under the Freedom of Information 
Act (FOIA). The request must contain a specific statement assuming 
financial liability in accordance with paragraph (d)(2) of this section 
for the direct costs of responding to the request. If the request is 
made for records in a Regional or Subregional Office of the Agency, it 
should be made to that Regional or Subregional Office; if for records in 
the Office of the General Counsel and located in Washington, DC, it 
should be made to the Freedom of Information Officer, Office of the 
General Counsel, Washington, DC; if for records in the offices the Board 
or the Inspector General in Washington, DC, to the Executive Secretary 
of the Board, Washington, DC. Requests made to other than the 
appropriate office will be forwarded to that office by the receiving 
office, but in that event the applicable time limit for response set 
forth in paragraph (c)(2)(i) of this section shall be calculated from 
the date of receipt by the appropriate office. Requesters may be given 
an opportunity to discuss their request so that requests may be modified 
to meet the requirements of this section. In the case of records 
generated by the Inspector General and in possession of another office, 
or in the possession of the Inspector General but generated by another 
office of the Agency, the request may be referred to the generating 
office for decision. If the Agency determines that a request does not 
reasonably describe records, it may contact the requester to inform the 
requester either what additional information is needed or why the 
request is insufficient. Similar referrals may, in the Agency's 
discretion, be made between other offices.
    (2)(i) The Agency ordinarily shall respond to requests according to 
their order of receipt. Effective October 2, 1997, an initial response 
shall be made within 20 working days (i.e. exempting Saturdays, Sundays, 
and legal public holidays) after the receipt of a request for a record 
under this part by the Freedom of Information Officer or his designee. 
An appeal under paragraph (c)(2)(v) of this section shall be decided 
within 20 days (excepting Saturdays, Sundays, and legal public holidays) 
after the receipt of such an appeal by the Office of Appeals or the 
Chairman of the Board. Because the Agency has been able to process its 
requests without a backlog of cases, the Agency will not institute a 
multitrack processing system.
    (ii) Requests and appeals will be taken out of order and given 
expedited treatment whenever it is determined that they involve: 
Circumstances in which the lack of expedited treatment could reasonably 
be expected to pose an imminent threat to the life or physical safety of 
an individual; an urgency to inform the public about an actual or 
alleged federal government activity, if made by a person primarily 
engaged in disseminating information; the loss of substantial due 
process rights; or a matter of widespread and exceptional media interest 
in which there exist

[[Page 83]]

possible questions about the government's integrity which affect public 
confidence. A request for expedited processing may be made at the time 
of the initial request for records or at any later time. A requester who 
seeks expedited processing must submit a statement, certified to be true 
and correct to the best of that person's knowledge and belief, 
explaining in detail the basis for requesting expedited processing. The 
formality of certification may be waived as a matter of administrative 
discretion. Within ten calendar days of its receipt of a request for 
expedited processing, the Agency shall decide whether to grant it and 
shall notify the requester of the decision. Once the determination has 
been made to grant expedited processing, the request shall be given 
priority and shall be processed as soon as practicable. If a request for 
expedited processing is denied, the Agency shall act expeditiously on 
any appeal of that decision.
    (iii) Within 20 working days after receipt of a request by the 
appropriate office of the Agency a determination shall be made whether 
to comply with such request, and the person making the request shall be 
notified in writing of that determination. In the case of requests made 
to the Executive Secretary for Inspector General Records, that 
determination shall be made by the Inspector General. In the case of all 
other requests, that determination shall be made by the General 
Counsel's office, the Regional or Subregional Office, or the Executive 
Secretary's office, as the case may be. If the determination is to 
comply with the request, the records shall be made promptly available to 
the person making the request and, at the same time, a statement of any 
charges due in accordance with the provisions of paragraph (d)(2) of 
this section will be provided. If the determination is to deny the 
request in any respect, the requester shall be notified in writing of 
that determination. Adverse determinations, or denials of requests, 
consist of: A determination to withhold any requested record in whole or 
in part; a determination that a requested record does not exist or 
cannot be located; a determination that what has been requested is not a 
record subject to the Act; a determination on any disputed fee matter, 
including a denial of a request for a fee waiver or reduction or 
placement in a particular fee category; and a denial of a request for 
expedited treatment. For a determination to deny a request in any 
respect, the notification shall set forth the reasons therefor and the 
name and title or position of each person responsible for the denial, 
shall provide an estimate of the volume of records or information 
withheld, in number of pages or in some other reasonable form of 
estimation (this estimate does not need to be provided if the volume is 
otherwise indicated through deletions on records disclosed in part, or 
if providing an estimate would harm an interest protected by an 
applicable exemption), and shall notify the person making the request of 
the right to appeal the adverse determination under provisions of 
paragraph (c)(2)(v) of this section.
    (iv) Business information obtained by the Agency from a submitter 
will be disclosed under the FOIA only consistent with the procedures 
established in this section.
    (A) For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by the Agency from a submitter that may be protected from 
disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom the Agency 
obtains business information, directly or indirectly. The term includes 
corporations; state, local, and tribal governments; and foreign 
governments.
    (B) A submitter of business information will use good faith efforts 
to designate, by appropriate markings, either at the time of submission 
or at a reasonable time thereafter, any portions of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations will expire ten years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period. The Agency shall provide a submitter with prompt 
written notice of a FOIA request or administrative appeal that seeks its 
business information wherever required under paragraph (c)(2)(iv)(C) of 
this section, except as provided in paragraph

[[Page 84]]

(c)(2)(iv)(F) of this section, in order to give the submitter an 
opportunity to object to disclosure of any specified portion of that 
information under paragraph (c)(2)(iv)(D) of this section. The notice 
shall either describe the business information requested or include 
copies of the requested records or record portions containing the 
information. When notification of a voluminous number of submitters is 
required, notification may be made by posting or publishing the notice 
in a place reasonably likely to accomplish notification.
    (C) Notice shall be given to a submitter wherever: the information 
has been designated in good faith by the submitter as information 
considered protected from disclosure under Exemption 4; or the Agency 
has reason to believe that the information may be protected from 
disclosure under Exemption 4.
    (D) The Agency will allow a submitter a reasonable time to respond 
to the notice described in paragraph (c)(2)(iv)(B) of this section. If a 
submitter has any objection to disclosure, it is required to submit a 
detailed written statement. The statement must specify all grounds for 
withholding any portion of the information under any exemption of the 
FOIA and, in the case of Exemption 4, it must show why the information 
is a trade secret or commercial or financial information that is 
privileged or confidential. In the event that a submitter fails to 
respond to the notice within the time specified in it, the submitter 
will be considered to have no objection to disclosure of the 
information. Information provided by a submitter under this paragraph 
may itself be subject to disclosure under the FOIA.
    (E) The Agency shall consider a submitter's objections and specific 
grounds for nondisclosure in deciding whether to disclose business 
information. Whenever the Agency decides to disclose business 
information over the objection of a submitter, the Agency shall give the 
submitter written notice, which shall include: A statement of the 
reason(s) why each of the submitter's disclosure objections was not 
sustained; a description of the business information to be disclosed; 
and a specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (F) The notice requirements of paragraphs (c)(2)(iv)(B) and (E) of 
this section shall not apply if: The Agency determines that the 
information should not be disclosed; the information lawfully has been 
published or has been officially made available to the public; 
disclosure of the information is required by statute (other than the 
FOIA) or by a regulation issued in accordance with the requirements of 
Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or the designation 
made by the submitter under paragraph (c)(2)(iv)(B) of this section 
appears obviously frivolous-except that, in such a case, the Agency 
shall, within a reasonable time prior to a specified disclosure date, 
give the submitter written notice of any final decision to disclose the 
information.
    (G) Whenever a requester files a lawsuit seeking to compel the 
disclosure of business information, the Agency shall promptly notify the 
submitter.
    (H) Whenever the Agency provides a submitter with notice and an 
opportunity to object to disclosure under paragraph (c)(2)(iv)(B) of 
this section, the Agency shall also notify the requester(s). Whenever 
the Agency notifies a submitter of its intent to disclose requested 
information under paragraph (c)(2)(iv)(E) of this section, the Agency 
shall also notify the requester(s). Whenever a submitter files a lawsuit 
seeking to prevent the disclosure of business information, the Agency 
shall notify the requester(s).
    (v) An appeal from an adverse determination made pursuant to 
paragraph (c)(2)(iii) of this section must be filed within 20 working 
days of the receipt by the person making the request of the notification 
of the adverse determination where the request is denied in its 
entirety; or, in the case of a partial denial, within 20 working days of 
the receipt of any records being made available pursuant to the request. 
If the adverse determination was made in a Regional Office, a 
Subregional Office, or by the Freedom of Information Officer, Office of 
the General Counsel, the appeal shall be filed with the General Counsel 
in Washington, DC. If the adverse determination was made by the

[[Page 85]]

Executive Secretary of the Board or the Inspector General, the appeal 
shall be filed with the Chairman of the Board in Washington, DC. Within 
20 working days after receipt of an appeal the General Counsel or the 
Chairman of the Board, as the case may be, shall make a determination 
with respect to such appeal and shall notify the person making the 
request in writing. If the determination is to comply with the request, 
the record shall be made promptly available to the person making the 
request upon receipt of payment of any charges due in accordance with 
the provisions of paragraph (d)(2) of this section. If on appeal the 
denial of the request for records is upheld in whole or in part, the 
person making the request shall be notified of the reasons for the 
determination, the name and title or position of each person responsible 
for the denial, and the provisions for judicial review of that 
determination under the provisions of 5 U.S.C. 552(4)(B). Even though no 
appeal is filed from a denial in whole or in part of a request for 
records by the person making the request, the General Counsel or the 
Chairman of the Board may, without regard to the time limit for filing 
of an appeal, sua sponte initiate consideration of an adverse 
determination under this appeal procedure by written notification to the 
person making the request. In such event the time limit for making the 
determination shall commence with the issuance of such notification. An 
adverse determination by the General Counsel or the Chairman of the 
Board, as the case may be, will be the final action of the Agency. If 
the requester wishes to seek review by a court of any adverse 
determination, the requester must first appeal it under this section.
    (vi) In unusual circumstances as specified in this paragraph, the 
time limits prescribed in either paragraph (c)(2)(i) or (iv) of this 
section may be extended by written notice to the person requesting the 
record setting forth the reasons for such extension and the date on 
which a determination is expected to be dispatched. No such notice or 
notices shall specify a date or dates that would result in an extension 
or extensions totaling more than 10 working days with respect to a 
particular request, except as set forth below in this paragraph. As used 
in this paragraph, unusual circumstances means, but only to the extent 
reasonably necessary to the proper processing of the particular request:
    (A) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (B) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request;
    (C) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or with two or more components of the 
Agency having a substantial subject matter interest in the request. 
Where the extension is for more than ten working days, the Agency shall 
provide the requester with an opportunity either to modify the request 
so that it may be processed within the time limits or to arrange an 
alternative time period for processing the request or a modified 
request.
    (vii) The Agency shall preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.
    (d)(1) For purposes of this section, the following definitions 
apply:
    (i) Direct costs means those expenditures which are actually 
incurred in searching for and duplicating and, in the case of commercial 
use requests, reviewing documents to respond to a FOIA request.
    (ii) Search refers to the process of looking for and retrieving 
records or information responsive to a request. It includes page-by-page 
or line-by-line identification of material within documents and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic

[[Page 86]]

form or format. The Agency shall ensure that searches are done in the 
most efficient and least expensive manner reasonably possible.
    (iii) Duplication refers to the process of making a copy of a 
record, or the information contained in it, necessary to respond to a 
FOIA request. Such copies can take the form of paper, microfilm, 
videotape, audiotape, or electronic records (e.g., magnetic tape or 
disk), among others. The Agency shall honor a requester's specified 
preference of form or format of disclosure if the record is readily 
reproducible with reasonable efforts in the requested form or format by 
the office responding to the request.
    (iv) Review refers to the process of examining documents located in 
response to a request that is for commercial use to determine whether 
any portion of it is exempt from disclosure. It includes processing any 
documents for disclosure, e.g., doing all that is necessary to redact 
and prepare them for disclosure. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter under paragraph (c)(2)(iv) of this section, but does not 
include time spent resolving general legal or policy issues regarding 
the application of exemptions.
    (v) Commercial use request refers to a request from or on behalf of 
a person who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person on 
whose behalf the request is made, which can include furthering those 
interests through litigation.
    (vi) Educational institution refers to a preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education, that operates a program of scholarly research. To be in this 
category, a requester must show that the request is authorized by and is 
made under the auspices of a qualifying institution and that the records 
are not sought for a commercial use but are sought to further scholarly 
research.
    (vii) Representative of the news media refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term news means information that is 
about current events or that would be of current interest to the public. 
Examples of news media entities include television or radio stations 
broadcasting to the public at large and publishers of periodicals (but 
only in instances where they can qualify as disseminators of ``news'') 
who make their products available for purchase or subscription by the 
general public. For ``freelance'' journalists to be regarded as working 
for a news organization, they must demonstrate a solid basis for 
expecting publication through that organization. A publication contract 
would be the clearest proof, but the Agency shall also look to the past 
publication record of a requester in making this determination. To be in 
this category, a requester must not be seeking the requested records for 
commercial use. However, a request for records supporting the news 
dissemination function of the requester shall not be considered to be 
for a commercial use.
    (viii) Working days, as used in this paragraph, means calendar days 
excepting Saturdays, Sundays, and legal holidays.
    (2) Persons requesting records from this Agency shall be subject to 
a charge of fees for the full allowable direct costs of document search, 
review, and duplicating, as appropriate, in accordance with the 
following schedules, procedures, and conditions:
    (i) Schedule of charges:
    (A) For each one-quarter hour or portion thereof of clerical time * 
* * $3.10.
    (B) For each one-quarter hour or portion thereof of professional 
time * * * $9.25.
    (C) For each sheet of duplication (not to exceed 8\1/2\ by 14 
inches) of requested records * * * $0.12.
    (D) All other direct costs of preparing a response to a request 
shall be charged to the requester in the same amount as incurred by the 
Agency. Such costs shall include, but not be limited to: Certifying that 
records are true copies; sending records to requesters or receiving 
records from the Federal records

[[Page 87]]

storage centers by special methods such as express mail; and, where 
applicable, the cost of conducting computer searches for information and 
for providing information in electronic format.
    (ii) Fees incurred in responding to information requests are to be 
charged in accordance with the following categories of requesters:
    (A) Commercial use requesters will be assessed charges to recover 
the full direct costs for searching for, reviewing for release, and 
duplicating the records sought. Requesters must reasonably describe the 
records sought.
    (B) Educational institution requesters will be assessed charges for 
the cost of reproduction alone, excluding charges for the first 100 
pages. To be eligible for inclusion in this category, requesters must 
show that the request is being made under the auspices of a qualifying 
institution and that the records are not sought for commercial use, but 
are sought in furtherance of scholarly research. Requesters must 
reasonably describe the records sought.
    (C) Requesters who are representatives of the news media will be 
assessed charges for the cost of reproduction alone, excluding charges 
for the first 100 pages. To be eligible for inclusion in this category, 
a requester must meet the criteria in paragraph (d)(1)(vii) of this 
section, and the request must not be made for commercial use. In 
reference to this class of requester, a request for records supporting 
the news dissemination function of the requester shall not be considered 
to be a request that is for commercial use. Requesters must reasonably 
describe the records sought.
    (D) All other requesters, not elsewhere described, will be assessed 
charges to recover the full reasonable direct cost of searching for and 
reproducing records that are responsive to the request, except that the 
first 100 pages of reproduction and the first 2 hours of search time 
shall be furnished without charge. Requesters must reasonably describe 
the records sought.
    (E) Absent a reasonably based factual showing that a requester 
should be placed in a particular user category, fees will be imposed as 
provided for in the commercial use requester category.
    (iii)(A) In no event shall fees be imposed on any requester when the 
total charges are less than $5, which is the Agency's cost of collecting 
and processing the fee itself.
    (B) If the Agency reasonably believes that a requester or a group of 
requesters acting together is attempting to divide a request into a 
series of requests for the purpose of avoiding fees, the Agency may 
aggregate those requests and charge accordingly. The Agency may presume 
that multiple requests of this type made within a 30-day period have 
been made in order to avoid fees. Where requests are separated by a 
longer period, the Agency will aggregate them only where there exists a 
solid basis for determining that aggregation is warranted under all the 
circumstances involved. Multiple requests involving unrelated matters 
will not be aggregated.
    (iv) Documents are to be furnished without charge or at reduced 
levels if disclosure of the information is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the Government and is not primarily 
in the commercial interest of the requester. Disclosure to data brokers 
or others who merely compile and market government information for 
direct economic return shall not be presumed to primarily serve the 
public interest. A fee waiver or reduction is justified where the public 
interest standard is satisfied and that public interest is greater in 
magnitude than that of any identified commercial interest in disclosure. 
Where only some of the requested records satisfy the requirements for a 
waiver of fees, a waiver shall be granted for those records.
    (v) If a requester fails to pay chargeable fees that were incurred 
as a result of the Agency's processing of the information request, 
beginning on the 31st day following the date on which the notification 
of charges was sent, the Agency may assess interest charges against the 
requester in the manner prescribed in 31 U.S.C. 3717. Where appropriate, 
other steps permitted by federal debt collection statutes, including

[[Page 88]]

disclosure to consumer reporting agencies, use of collection agencies, 
and offset, will be used by the Agency to encourage payment of amounts 
overdue.
    (vi) Each request for records shall contain a specific statement 
assuming financial liability, in full or to a specified maximum amount, 
for charges, in accordance with paragraphs (d)(2)(i) and (ii) of this 
section, which may be incurred by the Agency in responding to the 
request. If the anticipated charges exceed the maximum limit stated by 
the person making the request or if the request contains no assumption 
of financial liability or charges, the person shall be notified and 
afforded an opportunity to assume financial liability. In either case, 
the request for records shall not be deemed received for purposes of the 
applicable time limit for response until a written assumption of 
financial liability is received. The Agency may require a requester to 
make an advance payment of anticipated fees under the following 
circumstances:
    (A) If the anticipated charges are likely to exceed $250, the Agency 
shall notify the requester of the likely cost and obtain satisfactory 
assurance of full payment when the requester has a history of prompt 
payment of FOIA fees, or require an advance payment of an amount up to 
the full estimated charges in the case of requesters with no history of 
payment.
    (B) If a requester has previously failed to pay fees that have been 
charged in processing a request within 30 days of the date of the 
notification of fees was sent, the requester will be required to pay the 
entire amount of fees that are owed, plus interest as provided for in 
paragraph (d)(2)(v) of this section, before the Agency will process a 
further information request. In addition, the Agency may require advance 
payment of fees that the Agency estimates will be incurred in processing 
the further request before the Agency commences processing that request. 
When the Agency acts under paragraph (d)(2)(vi)(A) or (B) of this 
section, the administrative time limits for responding to a request or 
an appeal from initial denials will begin to run only after the Agency 
has received the fee payments required above.
    (vii) Charges may be imposed even though the search discloses no 
records responsive to the request, or if records located are determined 
to be exempt from disclosure.
    (e) Subject to the provisions of Sec. Sec. 102.31(c) and 102.66(c), 
all fines, documents, reports, memoranda, and records of the Agency 
falling within the exemptions specified in 5 U.S.C. 552(b) shall not be 
made available for inspection or copying, unless specifically permitted 
by the Board, its Chairman, or its General Counsel.
    (f) An individual will be informed whether a system of records 
maintained by this Agency contains a record pertaining to such 
individual. An inquiry should be made in writing or in person during 
normal business hours to the official of this Agency designated for that 
purpose and at the address set forth in a notice of a system of records 
published by this Agency, in a Notice of Systems of Governmentwide 
Personnel Records published by the Office of Personnel Management, or in 
a Notice of Governmentwide Systems of Records published by the 
Department of Labor. Copies of such notices, and assistance in preparing 
an inquiry, may be obtained from any Regional Office of the Board or at 
the Board offices at 1099 14th Street, NW., Washington, DC 20570. The 
inquiry should contain sufficient information, as defined in the notice, 
to identify the record. Reasonable verification of the identity of the 
inquirer, as described in paragraph (j) of this section, will be 
required to assure that information is disclosed to the proper person. 
The Agency shall acknowledge the inquiry in writing within 10 days 
(excluding Saturdays, Sundays, and legal public holidays) and, wherever 
practicable, the acknowledgment shall supply the information requested. 
If, for good cause shown, the Agency cannot supply the information 
within 10 days, the inquirer shall within that time period be notified 
in writing of the reasons therefor and when it is anticipated the 
information will be supplied. An acknowledgment will not be provided 
when the information is supplied within the 10-day period. If the Agency 
refuses to inform an individual whether a system of records contains a 
record pertaining to

[[Page 89]]

an individual, the inquirer shall be notified in writing of that 
determination and the reasons therefor, and of the right to obtain 
review of that determination under the provisions of paragraph (k) of 
this section.
    (g) An individual will be permitted access to records pertaining to 
such individual contained in any system of records described in the 
notice of system of records published by this Agency, or access to the 
accounting of disclosures from such records. The request for access must 
be made in writing or in person during normal business hours to the 
person designated for that purpose and at the address set forth in the 
published notice of system of records. The request for access must be 
made in writing or in person during normal business hours to the person 
designated for that purpose and at the address set forth in the 
published notice of system of records. Copies of such notices, and 
assistance in preparing a request for access, may be obtained from any 
Regional Office of the Board or at the Board offices at 1099 14th 
Street, NW., Washington, DC 20570. Reasonable verification of the 
identity of the requester, as described in paragraph (j) of this 
section, shall be required to assure that records are disclosed to the 
proper person. A request for access to records or the accounting of 
disclosures from such records shall be acknowledged in writing by the 
Agency within 10 days of receipt (excluding Saturdays, Sundays, and 
legal public holidays) and, wherever practicable, the acknowledgment 
shall inform the requester whether access will be granted and, if so, 
the time and location at which the records or accounting will be made 
available. If access to the record or accounting is to be granted, the 
record or accounting will normally be provided within 30 days (excluding 
Saturdays, Sundays, and legal public holidays) of the request, unless 
for good cause shown the Agency is unable to do so, in which case the 
individual will be informed in writing within that 30-day period of the 
reasons therefor and when it is anticipated that access will be granted. 
An acknowledgment of a request will not be provided if the record is 
made available within the 10-day period. If an individual's request for 
access to a record or an accounting of disclosure from such a record 
under the provisions of this paragraph is denied, the notice informing 
the individual of the denial shall set forth the reasons therefor and 
advise the individual of the right to obtain a review of that 
determination under the provisions of paragraph (k) of this section.
    (h) An individual granted access to records pertaining to such 
individual contained in a system of records may review all such records. 
For that purpose the individual may be accompanied by a person of the 
individual's choosing, or the record may be released to the individual's 
representative who has written consent of the individual, as described 
in paragraph (j) of this section. A first copy of any such record or 
information will ordinarily be provided without charge to the individual 
or representative in a form comprehensible to the individual. Fees for 
any other copies of requested records shall be assessed at the rate of 
10 cents for each sheet of duplication.
    (i) An individual may request amendment of a record pertaining to 
such individual in a system of records maintained by this Agency. A 
request for amendment of a record must be in writing and submitted 
during normal business hours to the person designated for that purpose 
and at the address set forth in the published notice for the system of 
records containing the record of which amendment is sought. Copies of 
such notices, and assistance in preparing a request for amendment, may 
be obtained from any Regional Office of the Board or at the Board 
offices at 1099 14th Street, NW., Washington, DC 20570. The requester 
must provide verification of identity as described in paragraph (j) of 
this section, and the request should set forth the specific amendment 
requested and the reason for the requested amendment. The Agency shall 
acknowledge in writing receipt of the request within 10 days of receipt 
(excluding Saturdays, Sundays, and legal public holidays) and, wherever 
practicable, the acknowledgment shall advise the individual of the 
determination of the request. If the review of the request for amendment 
cannot be completed and a determination made within 10 days, the review 
shall

[[Page 90]]

be completed as soon as possible, normally within 30 days (Saturdays, 
Sundays, and legal public holidays excluded) of receipt of the request 
unless unusual circumstances preclude completing the review within that 
time, in which event the requester will be notified in writing within 
that 30-day period of the reasons for the delay and when the 
determination of the request may be expected. If the determination is to 
amend the record, the requester shall be so notified in writing and the 
record shall be amended in accordance with that determination. If any 
disclosures accountable under the provisions of 5 U.S.C. 552a(c) have 
been made, all previous recipients of the record which was amended shall 
be advised of the amendment and its substance. If it is determined that 
the request should not be granted, the requester shall be notified in 
writing of that determination and of the reasons therefor, and advised 
of the right to obtain review of the adverse determination under the 
provisions of paragraph (k) of this section.
    (j) Verification of the identification of individuals required under 
paragraphs (f), (g), (h), and (i) of this section to assure that records 
are disclosed to the proper person shall be required by the Agency to an 
extent consistent with the nature, location, and sensitivity of the 
records being disclosed. Disclosure of a record to an individual in 
person will normally be made upon the presentation of acceptable 
identification. Disclosure of records by mail may be made on the basis 
of the identifying information set forth in the request. Depending on 
the nature, location, and sensitivity of the requested record, a signed 
notarized statement verifying identity may be required by the Agency. 
Proof of authorization as representative to have access to a record of 
an individual shall be in writing, and a signed notarized statement of 
such authorization may be required by the Agency if the record requested 
is of a sensitive nature.
    (k)(1) Review may be obtained with respect to:
    (i) A refusal, under paragraph (f) or (l) of this section, to inform 
an individual if a system of records contains a record concerning that 
individual,
    (ii) A refusal, under paragraph (g) or (l) of this section, to grant 
access to a record or an accounting of disclosure from such a record, or
    (iii) A refusal, under paragraph (i) of this section, to amend a 
record.

The request for review should be made to the Chairman of the Board if 
the system of records is maintained in the office of a Member of the 
Board, the office of the Executive Secretary, the office of the 
Solicitor, the Division of Information, or the Division of 
Administrative Law Judges. Consonant with the provisions of section 3(d) 
of the National Labor Relations Act, and the delegation of authority 
from the Board to the General Counsel, the request should be made to the 
General Counsel if the system of records is maintained by an office of 
the Agency other than those enumerated above. Either the Chairman of the 
Board or the General Counsel may designate in writing another officer of 
the Agency to review the refusal of the request. Such review shall be 
completed within 30 days (excluding Saturdays, Sundays, and legal public 
holidays) from the receipt of the request for review unless the Chairman 
of the Board or the General Counsel, as the case may be, for good cause 
shown, shall extend such 30-day period.
    (2) If, upon review of a refusal under paragraph (f) or (l), the 
reviewing officer determines that the individual should be informed of 
whether a system of records contains a record pertaining to that 
individual, such information shall be promptly provided. If the 
reviewing officer determines that the information was properly denied, 
the individual shall be so informed in writing with a brief statement of 
the reasons therefor.
    (3) If, upon review of a refusal under paragraph (g) or (l), the 
reviewing officer determines that access to a record or to an accounting 
of disclosures should be granted, the requester shall be so notified and 
the record or accounting shall be promptly made available to the 
requester. If the reviewing officer determines that the request for 
access was properly denied, the individual shall be so informed in 
writing with a brief statement of the reasons

[[Page 91]]

therefor, and of the right to judicial review of that determination 
under the provisions of 5 U.S.C. 552a(g)(1)(B).
    (4) If, upon review of a refusal under paragraph (i), the reviewing 
official grants a request to amend, the requester shall be so notified, 
the record shall be amended in accordance with the determination, and, 
if any disclosures accountable under the provisions of 5 U.S.C. 552a(c) 
have been made, all previous recipients of the record which was amended 
shall be advised of the amendment and its substance. If the reviewing 
officer determines that the denial of a request for amendment should be 
sustained, the Agency shall advise the requester of the determination 
and the reasons therefor, and that the individual may file with the 
Agency a concise statement of the reason for disagreeing with the 
determination, and may seek judicial review of the Agency's denial of 
the request to amend the record. In the event a statement of 
disagreement is filed, that statement--
    (i) Will be made available to anyone to whom the record is 
subsequently disclosed together with, at the discretion of the Agency, a 
brief statement summarizing the Agency's reasons for declining to amend 
the record, and
    (ii) Will be supplied, together with any Agency statements, to any 
prior recipients of the disputed record to the extent that an accounting 
of disclosure was made.
    (l) To the extent that portions of system of records described in 
notices of Governmentwide systems of records published by the Office of 
Personnel Management are identified by those notices as being subject to 
the management of an officer of this Agency, or an officer of this 
Agency is designated as the official to contact for information, access, 
or contents of those records, individual requests for access to those 
records, requests for their amendment, and review of denials of requests 
for amendment shall be in accordance with the provisions of 5 CFR part 
297, subpart A, Sec. 297.101, et seq., as promulgated by the Office of 
Personnel Management. To the extent that portions of system of records 
described in notices of Governmentwide system of records published by 
the Department of Labor are identified by those notices as being subject 
to the management of an officer of this Agency, or an officer of this 
Agency is designated as the official to contact for information, access, 
or contents of those records, individual requests for access to those 
records, requests for their amendment, and review of denials of requests 
for amendment shall be in accordance with the provisions of this rule. 
Review of a refusal to inform an individual whether such a system of 
records contains a record pertaining to that individual and review of a 
refusal to grant an individual's request for access to a record in such 
a system may be obtained in accordance with the provisions of paragraph 
(k) of this section.
    (m) Pursuant to 5 U.S.C. 552a(j)(2), the system of records 
maintained by the Office of the Inspector General of the National Labor 
Relations Board that contains Investigative Files shall be exempted from 
the provisions of 5 U.S.C. 552a, except subsections (b), (c)(1) and (2), 
(e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i), and 29 
CFR 102.117(c), (d), (f), (g), (h), (i), (j) and (k), insofar as the 
system contains investigatory material compiled for criminal law 
enforcement purposes.
    (n) Pursuant to 5 U.S.C. 552a(k)(2), the system of records 
maintained by the Office of the Inspector General of the National Labor 
Relations Board that contains the Investigative Files shall be exempted 
from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) 
and 29 CFR 102.117 (c), (d), (f), (g), (h), (i), (j), and (k), insofar 
as the system contains investigatory material compiled for law 
enforcement purposes not within the scope of the exemption at 29 CFR 
102.117(m).
    (o) Privacy Act exemptions contained in paragraphs (m) and (n) of 
this section are justified for the following reasons:
    (1) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of 
each disclosure of records available to the individual named in the 
record at his/her request. These accountings must state the date, 
nature, and purpose of each disclosure of a record and the name and 
address of the recipient. Accounting for each disclosure would alert the 
subjects of an investigation

[[Page 92]]

to the existence of the investigation and the fact that they are 
subjects of the investigation. The release of such information to the 
subjects of an investigation would provide them with significant 
information concerning the nature of the investigation and could 
seriously impede or compromise the investigation, endanger the physical 
safety of confidential sources, witnesses, law enforcement personnel, 
and their families and lead to the improper influencing of witnesses, 
the destruction of evidence, or the fabrication of testimony.
    (2) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or 
other agency about any correction or notation of dispute made by the 
agency in accordance with subsection (d) of the Act. Since this system 
of records is being exempted from subsection (d) of the Act, concerning 
access to records, this section is inapplicable to the extent that this 
system of records will be exempted from subsection (d) of the Act.
    (3) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to him/her, to request amendment to 
such records, to request a review of an agency decision not to amend 
such records, and to contest the information contained in such records. 
Granting access to records in this system of records could inform the 
subject of an investigation of an actual or potential criminal 
violation, of the existence of that investigation, of the nature and 
scope of the information and evidence obtained as to his/her activities, 
or of the identity of confidential sources, witnesses, and law 
enforcement personnel and could provide information to enable the 
subject to avoid detection or apprehension. Granting access to such 
information could seriously impede or compromise an investigation, 
endanger the physical safety of confidential sources, witnesses, law 
enforcement personnel, and their families, lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony, and disclose investigative techniques and 
procedures. In addition, granting access to such information could 
disclose classified, security-sensitive, or confidential business 
information and could constitute an unwarranted invasion of the personal 
privacy of others.
    (4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
by executive order of the President. The application of this provision 
could impair investigations and law enforcement because it is not always 
possible to detect the relevance or necessity of specific information in 
the early stages of an investigation. Relevance and necessity are often 
questions of judgment and timing, and it is only after the information 
is evaluated that the relevance and necessity of such information can be 
established. In addition, during the course of the investigation, the 
investigator may obtain information which is incidental to the main 
purpose of the investigative jurisdiction of another agency. Such 
information cannot readily be segregated. Furthermore, during the course 
of the investigation, the investigator may obtain information concerning 
the violation of laws other than those which are within the scope of 
his/her jurisdiction. In the interest of effective law enforcement, OIG 
investigators should retain this information, since it can aid in 
establishing patterns of criminal activity and can provide valuable 
leads for other law enforcement agencies.
    (5) 5 U.S.C. 552a(e)(2) requires an agency to collect information to 
the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs. 
The application of this provision could impair investigations and law 
enforcement by alerting the subject of an investigation, thereby 
enabling the subject to avoid detection or apprehension, to influence 
witnesses improperly, to destroy evidence, or to fabricate testimony. 
Moreover, in certain circumstances the subject of an investigation 
cannot be required to provide information to investigators and 
information must be collected from other sources. Furthermore, it is 
often necessary to collect information

[[Page 93]]

from sources other than the subject of the investigation to verify the 
accuracy of the evidence collected.
    (6) 5 U.S.C. 552a(e)(3) requires an agency to inform each person 
whom it asks to supply information, on a form that can be retained by 
the person, of the authority under which the information is sought and 
whether disclosure is mandatory or voluntary; of the principal purposes 
for which the information is intended to be used; of the routine uses 
which may be made of the information; and of the effects on the person, 
if any, of not providing all or any part of the requested information. 
The application of this provision could provide the subject of an 
investigation with substantial information about the nature of that 
investigation that could interfere with the investigation. Moreover, 
providing such a notice to the subject of an investigation could 
seriously impede or compromise an undercover investigation by revealing 
its existence and could endanger the physical safety of confidential 
sources, witnesses, and investigators by revealing their identities.
    (7) 5 U.S.C. 552a(e)(4) (G) and (H) require an agency to publish a 
Federal Register notice concerning its procedures for notifying an 
individual, at his/her request, if the system of records contains a 
record pertaining to him/her, how to gain access to such a record and 
how to contest its content. Since this system of records is being 
exempted from subsection (f) of the Act, concerning agency rules, and 
subsection (d) of the Act, concerning access to records, these 
requirements are inapplicable to the extent that this system of records 
will be exempt from subsections (f) and (d) of the Act. Although the 
system would be exempt from these requirements, OIG has published 
information concerning its notification, access, and contest procedures 
because, under certain circumstances, OIG could decide it is appropriate 
for an individual to have access to all or a portion of his/her records 
in this system of records.
    (8) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal 
Register notice concerning the categories of sources of records in the 
system of records. Exemption from this provision is necessary to protect 
the confidentiality of the sources of information, to protect the 
privacy and physical safety of confidential sources and witnesses, and 
to avoid the disclosure of investigative techniques and procedures. 
Although the system will be exempt from this requirement, OIG has 
published such a notice in broad generic terms.
    (9) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in making any 
determination about the individual. Since the Act defines ``maintain'' 
to include the collection of information, complying with this provision 
could prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment it is collected. In 
collecting information for criminal law enforcement purposes, it is not 
possible to determine in advance what information is accurate, relevant, 
timely, and complete. Facts are first gathered and then placed into a 
logical order to prove or disprove objectively the criminal behavior of 
an individual. Material which seems unrelated, irrelevant, or incomplete 
when collected can take on added meaning or significance as the 
investigation progresses. The restrictions of this provision could 
interfere with the preparation of a complete investigative report, 
thereby impeding effective law enforcement.
    (10) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record. Complying 
with this provision could prematurely reveal an ongoing criminal 
investigation to the subject of the investigation.
    (11) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules 
which shall establish procedures whereby an individual can be notified 
in response to his/her request if any system of records named by the 
individual contains a record pertaining to him/her. The application of 
this provision could impede or compromise an investigation or

[[Page 94]]

prosecution if the subject of an investigation were able to use such 
rules to learn of the existence of an investigation before it could be 
completed. In addition, mere notice of the fact of an investigation 
could inform the subject and others that their activities are under or 
may become the subject of an investigation and could enable the subjects 
to avoid detection or apprehension, to influence witnesses improperly, 
to destroy evidence, or to fabricate testimony. Since this system would 
be exempt from subsection (d) of the Act, concerning access to records, 
the requirements of subsection (f)(2) through (5) of the Act, concerning 
agency rules for obtaining access to such records, are inapplicable to 
the extent that this system of records will be exempted from subsection 
(d) of the Act. Although this system would be exempt from the 
requirements of subsection (f) of the Act, OIG has promulgated rules 
which establish agency procedures because, under certain circumstances, 
it could be appropriate for an individual to have access to all or a 
portion of his/her records in this system of records.
    (12) 5 U.S.C. 552a(g) provides for civil remedies if an agency fails 
to comply with the requirements concerning access to records under 
subsections (d)(1) and (3) of the Act; maintenance of records under 
subsection (e)(5) of the Act; and any other provision of the Act, or any 
rule promulgated thereunder, in such a way as to have an adverse effect 
on an individual. Since this system of records would be exempt from 
subsections (c)(3) and (4), (d), (e)(1), (2), and (3) and (4)(G) through 
(I), (e)(5), and (8), and (f) of the Act, the provisions of subsection 
(g) of the Act would be inapplicable to the extent that this system of 
records will be exempted from those subsections of the Act.
    (p) Pursuant to 5 U.S.C. 552a(k)(2), the system of records 
maintained by the NLRB containing Agency Disciplinary Case Files 
(Nonemployees) shall be exempted from the provisions of 5 U.S.C. 552a 
(c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) insofar as the 
system contains investigatory material compiled for law enforcement 
purposes other than material within the scope of 5 U.S.C. 552a(j)(2).
    (q) The Privacy Act exemption set forth in paragraph (p) of this 
section is claimed on the ground that the requirements of subsections 
(c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of the Privacy 
Act, if applied to Agency Disciplinary Case Files, would seriously 
impair the ability of the NLRB to conduct investigations of alleged or 
suspected violations of the NLRB's misconduct rules, as set forth in 
paragraphs (o) (1), (3), (4), (7), (8), and (11) of this section.

[40 FR 7290, Feb. 19, 1975, as amended at 53 FR 10872, Apr. 4, 1988; 58 
FR 42235, Aug. 9, 1993; 60 FR 32587, June 23, 1995; 61 FR 13765, Mar. 
28, 1996; 61 FR 65183, Dec. 11, 1996; 66 FR 50311, Oct. 3, 2001]



Sec. 102.118  Present and former Board employees prohibited from producing 

files, records, etc., pursuant to subpoena ad testificandum or subpoena 
duces tecum; prohibited from testifying in regard thereto; production of 
          witnesses' statements after direct testimony.

    (a)(1) Except as provided in Sec. 102.117 of these rules respecting 
requests cognizable under the Freedom of Information Act, no present or 
former Regional Director, field examiner, administrative law judge, 
attorney, specially designated agent, General Counsel, Member of the 
Board, or other officer or employee of the Agency shall produce or 
present any files, documents, reports, memoranda, or records of the 
Board or of the General Counsel, whether in response to a subpoena duces 
tecum or otherwise, without the written consent of the Board or the 
Chairman of the Board if the document is in Washington, DC, and in 
control of the Board; or of the General Counsel if the document is in a 
Regional Office of the Agency or is in Washington, DC, and in the 
control of the General Counsel. Nor shall any such person testify in 
behalf of any party to any cause pending in any court or before the 
Board, or any other board, commission, or other administrative agency of 
the United States, or of any State, territory, or the District of 
Columbia, or any subdivisions thereof, with respect to any information, 
facts, or other matter coming to that person's knowledge in

[[Page 95]]

his or her official capacity or with respect to the contents of any 
files, documents, reports, memoranda, or records of the Board or the 
General Counsel, whether in answer to a subpoena or otherwise, without 
the written consent of the Board or the Chairman of the Board if the 
person is in Washington, DC, and subject to the supervision or control 
of the Board or was subject to such supervision or control when formerly 
employed at the Agency; or of the General Counsel if the person is in a 
Regional Office of the Agency or is in Washington, DC, and subject to 
the supervision or control of the General Counsel or was subject to such 
supervision or control when formerly employed at the Agency. A request 
that such consent be granted shall be in writing and shall identify the 
documents to be produced, or the person whose testimony is desired, the 
nature of the pending proceeding, and the purpose to be served by the 
production of the document or the testimony of the official. Whenever 
any subpoena ad testificandum or subpoena duces tecum, the purpose of 
which is to adduce testimony or require the production of records as 
described hereinabove, shall have been served on any such person or 
otherwise expressly directed by the Board or the Chairman of the Board 
or the General Counsel, as the case may be, move pursuant to the 
applicable procedure, whether by petition to revoke, motion to quash, or 
other officer or employee of the Board, that person will, unless 
otherwise, to have such subpoena invalidated on the ground that the 
evidence sought is privileged against disclosure by this rule.
    (2) No regional director, field examiner, administrative law judge, 
attorney, specially designated agent, general counsel, member of the 
Board, or other officer or employee of the Board shall, by any means of 
communication to any person or to another agency, disclose personal 
information about an individual from a record in a system of records 
maintained by this agency, as more fully described in the notices of 
systems of records published by this agency in accordance with the 
provisions of section (e)(4) of the Privacy Act of 1974, 5 U.S.C. 
552a(e)(4), or by the Notices of Government-wide Systems of Personnel 
Records published by the Civil Service Commission in accordance with 
those statutory provisions, except pursuant to a written request by, or 
with the prior written consent of, the individual to whom the record 
pertains, unless disclosure of the record would be in accordance with 
the provisions of section (b) (1) through (11), both inclusive, of the 
Privacy Act of 1974, 5 U.S.C. 552a(b) (1) through (11).
    (b)(1) Notwithstanding the prohibitions of paragraph (a) of this 
section, after a witness called by the general counsel or by the 
charging party has testified in a hearing upon a complaint under section 
10(c) of the act, the administrative law judge shall, upon motion of the 
respondent, order the production of any statement (as hereinafter 
defined) of such witness in the possession of the general counsel which 
relates to the subject matter as to which the witness has testified. If 
the entire contents of any such statement relate to the subject matter 
of the testimony of the witness, the administrative law judge shall 
order it to be delivered directly to the respondent for his examination 
and use for the purpose of cross-examination.
    (2) If the general counsel claims that any statement ordered to be 
produced under this section contains matter which does not relate to the 
subject matter of the testimony of the witness, the administrative law 
judge shall order the general counsel to deliver such statement for the 
inspection of the administrative law judge in camera. Upon such delivery 
the administrative law judge shall excise the portions of such statement 
which do not relate to the subject matter of the testimony of the 
witness except that he may, in his discretion, decline to excise 
portions which, although not relating to the subject matter of the 
testimony of the witness, do relate to other matters raised by the 
pleadings. With such material excised the administrative law judge shall 
then direct delivery of such statement to the respondent for his use on 
cross-examination. If, pursuant to such procedure, any portion of such 
statement is withheld from the respondent and the respondent objects to 
such withholdings, the entire text of

[[Page 96]]

such statement shall be preserved by the general counsel, and, in the 
event the respondent files exceptions with the Board based upon such 
withholding, shall be made available to the Board for the purpose of 
determining the correctness of the ruling of the administrative law 
judge. If the general counsel elects not to comply with an order of the 
administrative law judge directing delivery to the respondent of any 
such statement, or such portion thereof as the administrative law judge 
may direct, the administrative law judge shall strike from the record 
the testimony of the witness.
    (c) The provisions of paragraph (b) of this section shall also apply 
after any witness has testified in any postelection hearing pursuant to 
Sec. 102.69(d) and any party has moved for the production of any 
statement (as hereinafter defined) of such witness in possession of any 
agent of the Board which relates to the subject matter as to which the 
witness has testified. The authority exercised by the administrative law 
judge under paragraph (b) of this section shall be exercised by the 
hearing officer presiding.
    (d) The term statement as used in paragraphs (b) and (c) of this 
section means:
    (1) A written statement made by said witness and signed or otherwise 
adopted or approved by him; or
    (2) A stenographic, mechanical, electrical, or other recording, or a 
transcription thereof, which is a substantially verbatim recital of an 
oral statement made by said witness to an agent of the party obligated 
to produce the statement and recorded contemporaneously with the making 
of such oral statement.

[33 FR 9819, July 9, 1968, as amended at 35 FR 10658, July 1, 1970; 40 
FR 7291, Feb. 19, 1975; 40 FR 50662, Oct. 30, 1975; 52 FR 27990, July 
27, 1987]



Subpart L_Post-employment Restrictions on Activities by Former Officers 
                              and Employees



Sec. 102.119  Post-employee restrictions on activities by former Officers 
and employees.

    Former officers and employees of the Agency who were attached to any 
of its regional offices or the Washington staff are subject to the 
applicable post-employment restrictions imposed by 18 U.S.C. 207. 
Guidance concerning those restrictions may be obtained from the 
Designated Agency Ethics Officer and any applicable regulations issued 
by the Office of Government Ethics.

[62 FR 58907, Oct. 31, 1997]



                     Subpart M_Construction of Rules



Sec. 102.121  Rules to be liberally construed.

    The rules and regulations in this part shall be liberally construed 
to effectuate the purposes and provisions of the act.



 Subpart N_Enforcement of Rights, Privileges, and Immunities Granted or 
Guaranteed Under Section 222(f), Communications Act of 1934, as Amended, 
                to Employees of Merged Telegraph Carriers



Sec. 102.122  Enforcement.

    All matters relating to the enforcement of rights, privileges, or 
immunities granted or guaranteed under section 222(f) of the 
Communications Act of 1934, as amended, shall be governed by the 
provisions of subparts A, B, I, J, K, and M of this part, insofar as 
applicable, except that reference in subpart B of this part to ``unfair 
labor practices'' or ``unfair labor practices affecting commerce'' shall 
for the purposes of this article mean the denial of any rights, 
privileges, or immunities granted or guaranteed under section 222(f) of 
the Communications Act of 1934, as amended.

[[Page 97]]



Sec. 102.123  Amendment or rescission of rules.

    Any rule or regulation may be amended or rescinded by the Board at 
any time.



                          Subpart O_Amendments



Sec. 102.124  Petitions for issuance, amendment, or repeal of rules.

    Any interested person may petition the Board, in writing, for the 
issuance, amendment, or repeal of a rule or regulation. An original and 
seven copies of such petition shall be filed with the Board in 
Washington, DC, and shall state the rule or regulation proposed to be 
issued, amended, or repealed, together with a statement of grounds in 
support of such petition.

[29 FR 15922, Nov. 28, 1964]



Sec. 102.125  Action on petition.

    Upon the filing of such petition, the Board shall consider the same 
and may thereupon either grant or deny the petition in whole or in part, 
conduct an appropriate hearing thereon, or make other disposition of the 
petition. Should the petition be denied in whole or in part, prompt 
notice shall be given of the denial, accompanied by a simple statement 
of the grounds unless the denial is self-explanatory.



                    Subpart P_Ex Parte Communications

    Authority: Sec. 6, National Labor Relations Act, as amended (49 
Stat. 452; 29 U.S.C. 156).

    Source: 42 FR 13113, Mar. 8, 1977, unless otherwise noted.



Sec. 102.126  Unauthorized communications.

    (a) No interested person outside this agency shall, in an on-the-
record proceeding of the types defined in Sec. 102.128, make or 
knowingly cause to be made any prohibited ex parte communication to 
Board agents of the categories designated in that section relevant to 
the merits of the proceeding.
    (b) No Board agent of the categories defined in Sec. 102.128, 
participating in a particular proceeding as defined in that section, 
shall (i) request any prohibited ex parte communications; or (ii) make 
or knowingly cause to be made any prohibited ex parte communications 
about the proceeding to any interested person outside this agency 
relevant to the merits of the proceeding.



Sec. 102.127  Definitions.

    When used in this subpart:
    (a) The term person outside this agency, to whom the prohibitions 
apply, shall include any individual outside this agency, partnership, 
corporation, association, or other entity, or an agent thereof, and the 
general counsel or his representative when prosecuting an unfair labor 
practice proceeding before the Board pursuant to section 10(b) of the 
Act.
    (b) The term ex parte communication means an oral or written 
communication not on the public record with respect to which reasonable 
prior notice to all parties is not given, subject however, to the 
provisions of Sec. Sec. 102.129 and 102.130.



Sec. 102.128  Types of on-the-record proceedings; categories of Board 
agents; and duration of prohibition.

    Unless otherwise provided by specific order of the Board entered in 
the proceeding, the prohibition of Sec. 102.126 shall be applicable in 
the following types of on-the-record proceedings to unauthorized ex 
parte communications made to the designated categories of Board agents 
who participate in the decision, from the stage of the proceeding 
specified until the issues are finally resolved by the Board for the 
purposes of that proceeding under prevailing rules and practices:
    (a) In a preelection proceeding pursuant to section 9(c)(1) or 9(e), 
or in a unit clarification or certification amendment proceeding 
pursuant to section 9(b) of the Act, in which a formal hearing is held, 
communications to the regional director and members of his staff who 
review the record and prepare a draft of his decision, and members of 
the Board and their legal assistants, from the time the hearing is 
opened.
    (b) In a postelection proceeding pursuant to section 9(c)(1) or 9(e) 
of the Act, in which a formal hearing is held, communications to the 
hearing officer,

[[Page 98]]

the regional director and members of his staff who review the record and 
prepare a draft of his report or decision, and members of the Board and 
their legal assistants, from the time the hearing is opened.
    (c) In a postelection proceeding pursuant to section (c)(1) or 9(e), 
or in a unit clarification or certification amendment proceeding 
pursuant to section 9(b) of the Act, in which no formal hearing is held, 
communications to members of the Board and their legal assistants, from 
the time the regional director's report or decision is issued.
    (d) In a proceeding pursuant to section 10(k) of the Act, 
communications to members of the Board and their legal assistants, from 
the time the hearing is opened.
    (e) In an unfair labor practice proceeding pursuant to section 10(b) 
of the Act, communications to the administrative law judge assigned to 
hear the case or to make rulings upon any motions or issues therein and 
members of the Board and their legal assistants, from the time the 
complaint and/or notice of hearing is issued, or the time the 
communicator has knowledge that a complaint or notice of hearing will be 
issued, whichever occurs first.
    (f) In any other proceeding to which the Board by specific order 
makes the prohibition applicable, to the categories of personnel and 
from the stage of the proceeding specified in the order.



Sec. 102.129  Communications prohibited.

    Except as provided in Sec. 102.130, ex parte communications 
prohibited by Sec. 102.126 shall include:
    (a) Such communications, when written, if copies thereof are not 
contemporaneously served by the communicator on all parties to the 
proceeding in accordance with the provisions of Sec. 102.114(a).
    (b) Such communications, when oral, unless advance notice thereof is 
given by the communicator to all parties in the proceeding and adequate 
opportunity afforded to them to be present.

[42 FR 13113, Mar. 8, 1977, as amended at 51 FR 30636, Aug. 28, 1986; 51 
FR 32919, Sept. 17, 1986]



Sec. 102.130  Communications not prohibited.

    Ex parte communications prohibited by Sec. 102.126 shall not 
include:
    (a) Oral or written communications which relate solely to matters 
which the hearing officer, regional director, administrative law judge, 
or member of the Board is authorized by law or Board rules to entertain 
or dispose of on an ex parte basis.
    (b) Oral or written requests for information solely with respect to 
the status of a proceeding.
    (c) Oral or written communications which all the parties to the 
proceeding agree, or which the responsible official formally rules, may 
be made on an ex parte basis.
    (d) Oral or written communications proposing settlement or an 
agreement for disposition of any or all issues in the proceeding.
    (e) Oral or written communications which concern matters of general 
significance to the field of labor-management relations or 
administrative practice and which are not specifically related to 
pending on-the-record proceedings.
    (f) Oral or written communications from the general counsel to the 
Board when the general counsel is acting as counsel for the Board.



Sec. 102.131  Solicitation of prohibited communications.

    No person shall knowingly and willfully solicit the making of an 
unauthorized ex parte communication by any other person.



Sec. 102.132  Reporting of prohibited communications; penalties.

    (a) Any Board agent of the categories defined in Sec. 102.128 to 
whom a prohibited oral ex parte communication is attempted to be made 
shall refuse to listen to the communication, inform the communicator of 
this rule, and advise him that if he has anything to say it should be 
said in writing with copies to all parties. Any such Board agent who 
receives, or who makes or knowingly causes to be made, an unauthorized 
ex parte communication shall place or cause to be placed on the public 
record of the proceeding:

[[Page 99]]

    (1) The communication, if it was written,
    (2) A memorandum stating the substance of the communication, if it 
was oral,
    (3) All written responses to the prohibited communication, and
    (4) Memoranda stating the substance of all oral responses to the 
prohibited communication.
    (b) The executive secretary, if the proceeding is then pending 
before the Board, the administrative law judge, if the proceeding is 
then pending before any such judge, or the regional director, if the 
proceeding is then pending before a hearing officer or the regional 
director, shall serve copies of all such materials placed on the public 
record of the proceeding on all other parties to the proceeding and on 
the attorneys of record for the parties. Within 14 days after the 
mailing of such copies, any party may file with the executive secretary, 
administrative law judge, or regional director serving the 
communication, and serve on all other parties, a statement setting forth 
facts or contentions to rebut those contained in the prohibited 
communication. All such responses shall be placed in the public record 
of the proceeding, and provision may be made for any further action, 
including reopening of the record which may be required under the 
circumstances. No action taken pursuant to this provision shall 
constitute a waiver of the power of the Board to impose an appropriate 
penalty under Sec. 102.133.

[51 FR 32919, Sept. 17, 1986]



Sec. 102.133  Penalties and enforcement.

    (a) Where the nature and circumstances of a prohibited communication 
made by or caused to be made by a party to the proceeding are such that 
the interests of justice and statutory policy may require remedial 
action, the Board, administrative law judge, or regional director, as 
the case may be, may issue to the party making the communication a 
notice to show cause, returnable before the Board within a stated period 
not less than 7 days from the date thereof, why the Board should not 
determine that the interests of justice and statutory policy require 
that the claim or interest in the proceeding of a party who knowingly 
makes a prohibited communication or knowingly causes a prohibited 
communication to be made, should be dismissed, denied, disregarded or 
otherwise adversely affected on account of such violation.
    (b) Upon notice and hearing, the Board may censure, suspend, or 
revoke the privilege of practice before the agency of any person who 
knowingly and willfully makes or solicits the making of a prohibited ex 
parte communication. However, before the Board institutes formal 
proceedings under this subsection, it shall first advise the person or 
persons concerned in writing that it proposes to take such action and 
that they may show cause, within a period to be stated in such written 
advice, but not less than 7 days from the date thereof, why it should be 
take such action.
    (c) The Board may censure, or, to the extent permitted by law, 
suspend, dismiss, or institute proceedings for the dismissal of, any 
Board agent who knowingly and willfully violates the prohibitions and 
requirements of this rule.

[42 FR 15410, Mar. 22, 1977]



 Subpart Q_Procedure Governing Matters Affecting Employment-Management 
             Agreements Under the Postal Reorganization Act



Sec. 102.135  Employment-management agreements.

    (a) Employment-management agreements. All matters within the 
jurisdiction of the National Labor Relations Board pursuant to the 
Postal Reorganization Act (chapter 12 of title 39, U.S. Code, as 
revised) shall be governed by the provisions of subparts A, B, C, D, F, 
G, I, J, K, L, M, O, and P of the rules and regulations insofar as 
applicable.
    (b) Inconsistencies. To the extent that any provision of this 
subpart Q is inconsistent with any provision of title 39, United States 
Code, the provision of said title 39 shall govern.
    (c) Exceptions. For the purposes of this subpart, references in the 
subparts of the rules and regulations cited above

[[Page 100]]

to (1) employer shall be deemed to include the Postal Service, (2) Act 
shall in the appropriate context mean ``Postal Reorganization Act,'' (3) 
section 9(c) of the Act and cited paragraphs thereof shall mean ``39 
U.S.C. secs. 1203(c) and 1204,'' and (4) section 9(b) of the Act shall 
mean ``39 U.S.C. sec. 1202.''

[36 FR 12532, July 1, 1971]



                      Subpart R_Advisory Committees



Sec. 102.136  Establishment and utilization of advisory committees.

    Advisory committees may from time to time be established or utilized 
by the agency in the interest of obtaining advice or recommendations on 
issues of concern to the agency. The establishment, utilization, and 
functioning of such committees shall be in accordance with the 
provisions of the Federal Advisory Committee Act, 5 U.S.C. app. I, 
sections 1-15, and Office of Management and Budget Circular A-63 (rev. 
March 27, 1975), Advisory Committee Management Guidance, 39 FR 12389-
12391, to the extent applicable.

(49 Stat. 449 (29 U.S.C. 151-166, as amended by Act of June 23, 1947) 61 
Stat. 136 (29 U.S.C. Supp. 151-167), act of October 22, 1951, 65 Stat. 
601 (29 U.S.C. 158, 159, 168), and Act of September 14, 1959 73 Stat. 
519; 29 U.S.C. 141-168); 86 Stat. 770; (5 U.S.C. Appendix I, section 1 
et seq.))

[40 FR 59728, Dec. 30, 1975]



                         Subpart S_Open Meetings

    Authority: Sec. 6, National Labor Relations Act, as amended (49 
Stat. 452; 29 U.S.C. 156) and sec. 3(a), Government in the Sunshine Act, 
Pub. L. 94-409, Sept. 13, 1976, 5 U.S.C. 552b(g).

    Source: 42 FR 13550, Mar. 11, 1977, unless otherwise noted.



Sec. 102.137  Public observation of Board meetings.

    Every portion of every meeting of the Board shall be open to public 
observation, except as provided in Sec. 102.139 of these rules, and 
Board members shall not jointly conduct or dispose of agency business 
other than in accordance with the provisions of this subpart.



Sec. 102.138  Definition of meeting.

    For purposes of this subpart, meeting shall mean the deliberations 
of at least three members of the full Board, or the deliberations of at 
least two members of any group of three Board members to whom the Board 
has delegated powers which it may itself exercise, where such 
deliberations determine or result in the joint conduct or disposition of 
official agency business, but does not include deliberations to 
determine whether a meeting should be closed to public observation in 
accordance with the provisions of this subpart.



Sec. 102.139  Closing of meetings; reasons therefor.

    (a) Except where the Board determines that the public interest 
requires otherwise, meetings, or portions thereof, shall not be open to 
public observation where the deliberations concern the issuance of a 
subpoena, the Board's participation in a civil action or proceeding or 
an arbitration, or the initiation, conduct or disposition by the Board 
of particular representation or unfair labor practice proceedings under 
sections 8, 9, or 10 of the Act, or any court proceedings collateral or 
ancillary thereto.
    (b) Meetings, or portions thereof, may also be closed by the Board, 
except where it determines that the public interest requires otherwise, 
when the deliberations concern matters or information falling within the 
reasons for closing meetings specified in 5 U.S.C. 552b(c)(1) (secret 
matters concerning national defense or foreign policy); (c)(2) (internal 
personnel rules and practices); (c)(3) (matters specifically exempted 
from disclosure by statute); (c)(4) (privileged or confidential trade 
secrets and commercial or financial information); (c)(5) (matters of 
alleged criminal conduct or formal censure); (c)(6) (personal 
information where disclosure would cause a clearly unwarranted invasion 
of personal privacy); (c)(7) (certain materials or information from 
investigatory files compiled for law enforcement purposes); or (c)(9)(B) 
(disclosure would significantly frustrate implementation of a proposed 
agency action).

[[Page 101]]



Sec. 102.140  Action necessary to close meetings; record of votes.

    A meeting shall be closed to public observation under Sec. 102.139, 
only when a majority of the members of the Board who will participate in 
the meeting vote to take such action.
    (a) When the meeting deliberations concern matters specified in 
Sec. 102.139(a), the Board members shall vote at the beginning of the 
meeting, or portion thereof, on whether to close such meeting, or 
portion thereof, to public observation, and on whether the public 
interest requires that a meeting which may properly be closed should 
nevertheless be open to public observation. A record of such vote, 
reflecting the vote of each member of the Board, shall be kept and made 
available to the public at the earliest practicable time.
    (b) When the meeting deliberations concern matters specified in 
Sec. 102.139(b), the Board shall vote on whether to close such meeting, 
or portion thereof, to public observation, and on whether there is a 
public interest which requires that a meeting which may properly be 
closed should nevertheless be open to public observation. The vote shall 
be taken at a time sufficient to permit inclusion of information 
concerning the open or closed status of the meeting in the public 
announcement thereof. A single vote may be taken with respect to a 
series of meetings at which the deliberations will concern the same 
particular matters where such subsequent meetings are scheduled to be 
held within thirty days after the initial meeting. A record of such 
vote, reflecting the vote of each member of the Board, shall be kept and 
made available to the public within one day after the vote is taken.
    (c) Whenever any person whose interests may be directly affected by 
deliberations during a meeting, or a portion thereof, requests that the 
Board close that meeting, or portion thereof, to public observation for 
any of the reasons specified in 5 U.S.C. 552b(c)(5) (matters of alleged 
criminal conduct or formal censure), (c)(6) (personal information where 
disclosure would cause a clearly unwarranted invasion of personal 
privacy), or (c)(7) (certain materials or information from investigatory 
files compiled for law enforcement purposes), the Board members 
participating in the meeting, upon request of any one of its members, 
shall vote on whether to close such meeting, or a portion thereof, for 
that reason. A record of such vote, reflecting the vote of each member 
of the Board participating in the meeting shall be kept and made 
available to the public within one day after the vote is taken.
    (d) After public announcement of a meeting as provided in Sec. 
102.141 of this part, a meeting, or portion thereof, announced as closed 
may be opened, or a meeting, or portion thereof, announced as open may 
be closed, only if a majority of the members of the Board who will 
participate in the meeting determine by a recorded vote that Board 
business so requires and that an earlier announcement of the change was 
not possible. The change made and the vote of each member on the change 
shall be announced publicly at the earliest practicable time.
    (e) Before a meeting may be closed pursuant to Sec. 102.139, the 
solicitor of the Board shall certify that in his or her opinion the 
meeting may properly be closed to public observation. The certification 
shall set forth each applicable exemptive provision for such closing. 
Such certification shall be retained by the agency and made publicly 
available as soon as practicable.



Sec. 102.141  Notice of meetings; public announcement and publication.

    (a) A public announcement setting forth the time, place and subject 
matter of meetings or portions thereof closed to public observation 
pursuant to the provisions of Sec. 102.139(a) of this part, shall be 
made at the earliest practicable time.
    (b) Except for meetings closed to public observation pursuant to the 
provisions of Sec. 102.139(a) of this part, the agency shall make 
public announcement of each meeting to be held at least 7 days before 
the scheduled date of the meeting. The announcement shall specify the 
time, place and subject matter of the meeting, whether it is to be open 
to public observation or closed, and the name, address, and phone number 
of an agency official designated to respond to requests for information 
about the meeting. The 7

[[Page 102]]

day period for advance notice may be shortened only upon a determination 
by a majority of the members of the Board who will participate in the 
meeting that agency business requires that such meeting be called at an 
earlier date, in which event the public announcements shall be made at 
the earliest practicable time. A record of the vote to schedule a 
meeting at an earlier date shall be kept and made available to the 
public.
    (c) Within one day after a vote to close a meeting, or any portion 
thereof, pursuant to the provisions of Sec. 102.139(b) of this part, 
the agency shall make publicly available a full written explanation of 
its action closing the meeting, or portion thereof, together with a list 
of all persons expected to attend the meeting and their affiliation.
    (d) If after public announcement required by paragraph (b) of this 
section has been made, the time and place of the meeting are changed, a 
public announcement shall be made at the earliest practicable time. The 
subject matter of the meeting may be changed after the public 
announcement only if a majority of the members of the Board who will 
participate in the meeting determine that agency business so requires 
and that no earlier announcement of the change was possible. When such a 
change in subject matter is approved a public announcement of the change 
shall be made at the earliest practicable time. A record of the vote to 
change the subject matter of the meeting shall be kept and made 
available to the public.
    (e) All announcements or changes thereto issued pursuant to the 
provisions of paragraphs (b) and (d) of this section, or pursuant to the 
provisions of Sec. 102.140(d), shall be submitted for publication in 
the Federal Register immediately following their release to the public.
    (f) Announcements of meetings made pursuant to the provisions of 
this section shall be made publicly available by the executive 
secretary.



Sec. 102.142  Transcripts, recordings or minutes of closed meetings; 
public availability; retention.

    (a) For every meeting or portion thereof closed under the provisions 
of Sec. 102.139 of this part, the presiding officer shall prepare a 
statement setting forth the time and place of the meeting and the 
persons present, which statement shall be retained by the agency. For 
each such meeting or portion thereof there shall also be maintained a 
complete transcript or electronic recording of the proceedings, except 
that for meetings closed pursuant to Sec. 102.139(a) the Board may, in 
lieu of a transcript or electronic recording, maintain a set of minutes 
fully and accurately summarizing any action taken, the reasons thereof 
and views thereon, documents considered, and the members' vote on each 
roll call vote.
    (b) The agency shall make promptly available to the public copies of 
transcripts, recordings or minutes maintained as provided in accordance 
with paragraph (a) of this section, except to the extent the items 
therein contain information which the agency determines may be withheld 
pursuant to the provisions of 5 U.S.C. 552(c). Copies of transcripts or 
minutes, or transcriptions of electronic recordings including the 
identification of speakers, shall to the extent determined to be 
publicly available, be furnished to any person, subject to the payment 
of duplication costs in accordance with the schedule of fees set forth 
in Sec. 102.117(c)(2)(iv), and the actual cost of transcription.
    (c) The agency shall maintain a complete verbatim copy of the 
transcript, a complete electronic recording, or a complete set of the 
minutes for each meeting or portion thereof closed to the public, for a 
period of at least one year after the close of the agency proceeding of 
which the meeting was a part, but in no event for a period of less than 
two years after such meeting.



               Subpart T_Awards of Fees and Other Expenses

    Authority: Equal Access to Justice Act, Pub. L. 96-481, 94 Stat. 
2325.

[[Page 103]]


    Source: 46 FR 48087, Sept. 30, 1981, unless otherwise noted.



Sec. 102.143  ``Adversary adjudication'' defined; entitlement to award; 
eligibility for award.

    (a) The term adversary adjudication, as used in this subpart, means 
unfair labor practice proceedings pending before the Board on complaint 
and backpay proceedings under Sec. Sec. 102.52 to 102.59 of these rules 
pending before the Board on notice of hearing at any time after October 
1, 1984.
    (b) A respondent in an adversary adjudication who prevails in that 
proceeding, or in a significant and discrete substantive portion of that 
proceeding, and who otherwise meets the eligibility requirements of this 
section, is eligible to apply for an award of fees and other expenses 
allowable under the provisions of Sec. 102.145 of these rules.
    (c) Applicants eligible to receive an award are as follows:
    (1) An individual with a net worth of not more than $2 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $7 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, unit of local 
government, or public or private organization with a net worth of not 
more than $7 million and not more than 500 employees.
    (d) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date of the 
complaint in an unfair labor practice proceeding or the date of the 
notice of hearing in a backpay proceeding.
    (e) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (f) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (g) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless such treatment would be unjust and contrary to the purposes 
of the Equal Access to Justice Act (94 Stat. 2325) in light of the 
actual relationship between the affiliated entities. In addition 
financial relationships of the applicant other than those described in 
this paragraph may constitute special circumstances that would make an 
award unjust.
    (h) An applicant that participates in an adversary adjudication 
primarily on behalf of one or more other persons or entities that would 
be ineligible is not itself eligible for an award.

[46 FR 48087, Sept. 30, 1981, as amended at 51 FR 17733, May 15, 1986; 
51 FR 36224, Oct. 9, 1986]



Sec. 102.144  Standards for awards.

    (a) An eligible applicant may receive an award for fees and expenses 
incurred in connection with an adversary adjudication or in connection 
with a significant and discrete substantive portion of that proceeding, 
unless the position of the General Counsel over which the applicant has 
prevailed was substantially justified. The burden of proof that an award 
should not be made to an eligible applicant is on the General Counsel, 
who may avoid an award by showing that the General Counsel's position in 
the proceeding was substantially justified.

[[Page 104]]

    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the adversary adjudication or if special 
circumstances make the award sought unjust.

[46 FR 48087, Sept. 30, 1981, as amended at 51 FR 17733, May 15, 1986]



Sec. 102.145  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses, even if the services were made available without charge or at 
a reduced rate to the applicant.
    (b) No award for the attorney or agent fees under these rules may 
exceed $75.00 per hour. However, an award may also include the 
reasonable expenses of the attorney, agent, or witness as a separate 
item, if the attorney, agent or expert witness ordinarily charges 
clients separately for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the following matters shall be 
considered:
    (1) If the attorney, agent or expert witness is in practice, his or 
her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent or expert witness ordinarily performs 
services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the adversary adjudicative proceeding; and
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of an applicant may 
be awarded, to the extent that the charge for the service does not 
exceed the prevailing rate for similar services, and the study or other 
matter was necessary for preparation of the applicant's case.



Sec. 102.146  Rulemaking on maximum rates for attorney or agent fees.

    Any person may file with the Board a petition under Sec. 102.124 of 
these rules for rulemaking to increase the maximum rate for attorney or 
agent fees. The petition should specify the rate the petitioner believes 
should be established and explain fully why the higher rate is warranted 
by an increase in the cost of living or a special factor (such as the 
limited availability of qualified attorneys or agents for the 
proceedings involved).



Sec. 102.147  Contents of application; net worth exhibit; documentation 
of fees and expenses.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the adversary adjudication for which an 
award is sought. The application shall state the particulars in which 
the applicant has prevailed and identify the positions of the General 
Counsel in that proceeding that the applicant alleges were not 
substantially justified. Unless the applicant is an individual, the 
application shall also state the number, category, and work location of 
employees of the applicant and its affiliates and describe briefly the 
type and purpose of its organization or business.
    (b) The application shall include a statement that the applicant's 
net worth does not exceed $2 million (if an individual) or $7 million 
(for all other applicants, including their affiliates). However, an 
applicant may omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant

[[Page 105]]

wishes this Agency to consider in determining whether and in what amount 
an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or under penalty 
of perjury that the information provided in the application is true.
    (f) Each applicant, except a qualified tax-exempt organization or 
cooperative association, must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec. 102.143(g)) when the adversary adjudicative proceeding 
was initiated. The exhibit may be in any form convenient to the 
applicant that provides full disclosure of the applicant's and its 
affiliates' assets and liabilities and is sufficient to determine 
whether the applicant qualifies under the standards in this part. The 
administrative law judge may require an applicant to file such 
additional information as may be required to determine its eligibility 
for an award.
    (g)(1) Unless otherwise directed by the administrative law judge, 
the net worth exhibit will be included in the public record of the fee 
application proceeding. An applicant that objects to public disclosure 
of information in any portion of the exhibit may submit that portion of 
the exhibit in a sealed envelope labeled ``Confidential Financial 
Information'', accompanied by a motion to withhold the information from 
public disclosure. The motion shall describe the information sought to 
be withheld and explain, in detail, why public disclosure of the 
information would adversely affect the applicant and why disclosure is 
not required in the public interest. The exhibit shall be served on the 
General Counsel but need not be served on any other party to the 
proceeding. If the administrative law judge finds that the information 
should not be withheld from disclosure, it shall be placed in the public 
record of the proceeding.
    (2) If the administrative law judge grants the motion to withhold 
from public disclosure, the exhibit shall remain sealed, except to the 
extent that its contents are required to be disclosed at a hearing. The 
granting of the motion to withhold from public disclosure shall not be 
determinative of the availability of the document under the Freedom of 
Information Act in response to a request made under the provisions of 
Sec. 102.117. Notwithstanding that the exhibit may be withheld from 
public disclosure, the General Counsel may disclose information from the 
exhibit to others if required in the course of an investigation to 
verify the claim of eligibility.
    (h) The application shall be accompanied by full documentation of 
the fees and expenses for which an award is sought. A separate itemized 
statement shall be submitted for each professional firm or individual 
whose services are covered by the application, showing the dates and the 
hours spent in connection with the proceeding by each individual, a 
description of the specific services performed, the rate at which each 
fee has been computed, any expenses for which reimbursement is sought, 
the total amount claimed, and the total amount paid or payable by the 
applicant or by any other person or entity for the services provided. 
The administrative law judge may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.

[46 FR 48087, Sept. 30, 1981, as amended at 51 FR 17733, May 15, 1986; 
51 FR 36224, Oct. 9, 1986]



Sec. 102.148  When an application may be filed; place of filing; 
service; referral to administrative law judge; stay of proceeding.

    (a) An application may be filed after entry of the final order 
establishing that the applicant has prevailed in an adversary 
adjudication proceeding or in a significant and discrete substantive 
portion of that proceeding, but in no case later than 30 days after the 
entry of the Board's final order in that proceeding. The application for 
an award shall be filed in triplicate with the Board in Washington, DC, 
together with a certificate of service. The application shall be served 
on the regional director and all parties to the adversary adjudication 
in the same manner as other pleadings in that proceeding, except as 
provided in Sec. 102.147(g)(1) for

[[Page 106]]

financial information alleged to be confidential.
    (b) Upon filing, the application shall be referred by the Board to 
the administrative law judge who heard the adversary adjudication upon 
which the application is based, or, in the event that proceeding had not 
previously been heard by an administrative law judge, it shall be 
referred to the chief administrative law judge for designation of an 
administrative law judge, in accordance with Sec. 102.34, to consider 
the application. When the administrative law judge to whom the 
application has been referred is or becomes unavailable the provisions 
of Sec. Sec. 102.34 and 102.36 shall be applicable.
    (c) Proceedings for the award of fees, but not the time limit of 
this section for filing an application for an award, shall be stayed 
pending final disposition of the adversary adjudication in the event any 
person seeks reconsideration or review of the decision in that 
proceeding.
    (d) For purposes of this section the withdrawal of a complaint by a 
regional director under Sec. 102.18 of these rules shall be treated as 
a final order, and an appeal under Sec. 102.19 of these rules shall be 
treated as a request for reconsideration of that final order.



Sec. 102.149  Filing of documents; service of documents; motions for 
extension of time.

    (a) All motions and pleadings after the time the case is referred by 
the Board to the administrative law judge until the issuance of the 
judge's decision shall be filed with the administrative law judge in 
triplicate together with proof of service. Copies of all documents filed 
shall be served on all parties to the adversary adjudication.
    (b) Motions for extensions of time to file motions, documents, or 
pleadings permitted by section 102.150 or by section 102.152 shall be 
filed with the chief administrative law judge in Washington, D.C., the 
associate chief judge in San Francisco, California, the associate chief 
judge in New York, New York, or the associate chief judge in Atlanta, 
Georgia, as the case may be, not later than 3 days before the due date 
of the document. Notice of the request shall be immediately served on 
all other parties and proof of service furnished.

[46 FR 48087, Sept. 30, 1981, as amended at 62 FR 1668, Jan. 13, 1997]



Sec. 102.150  Answer to application; reply to answer; comments by other 
parties.

    (a) Within 35 days after service of an application the general 
counsel may file an answer to the application. Unless the general 
counsel requests an extension of time for filing or files a statement of 
intent to negotiate under paragraph (b) of this section, failure to file 
a timely answer may be treated as a consent to the award requested. The 
filing of a motion to dismiss the application shall stay the time for 
filing an answer to a date 35 days after issuance of any order denying 
the motion. Within 21 days after service of any motion to dismiss, the 
applicant shall file a response thereto. Review of an order granting a 
motion to dismiss an application in its entirety may be obtained by 
filing a request therefor with the Board in Washington, DC, pursuant to 
Sec. 102.27 of these rules.
    (b) If the General Counsel and the applicant believe that the issues 
in the fee application can be settled, they may jointly file a statement 
of their intent to negotiate toward a settlement. The filing of such a 
statement shall extend the time for filing an answer for an additional 
35 days.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the General 
Counsel's position. If the answer is based on alleged facts not already 
in the record of the adversary adjudication supporting affidavits shall 
be provided or a request made for further proceedings under Sec. 
102.152.
    (d) Within 21 days after service of an answer, the applicant may 
file a reply. If the reply is based on alleged facts not already in the 
record of the adversary adjudication, supporting affidavits shall be 
provided or a request made for further proceedings under Sec. 102.152.
    (e) Any party to an adversary adjudication other than the applicant 
and the general counsel may file comments on a fee application within 35 
days after it is served and on an answer

[[Page 107]]

within 21 days after it is served. A commenting party may not 
participate further in the fee application proceeding unless the 
administrative law judge determines that such participation is required 
in order to permit full exploration of matters raised in the comments.

[46 FR 48087, Sept. 30, 1981, as amended at 51 FR 23750, July 1, 1986; 
51 FR 32919, Sept. 17, 1986]



Sec. 102.151  Settlement.

    The applicant and the General Counsel may agree on a proposed 
settlement of the award before final action on the application. If a 
prevailing party and the General Counsel agree on a proposed settlement 
of an award before an application has been filed, the proposed 
settlement shall be filed with the application. All such settlements 
shall be subject to approval by the Board.



Sec. 102.152  Further proceedings.

    (a) Ordinarily the determination of an award will be made on the 
basis of the documents in the record. The administrative law judge, 
however, upon request of either the applicant or the General Counsel, or 
on his or her own initiative, may order further proceedings, including 
an informal conference, oral argument, additional written submissions or 
an evidentiary hearing. An evidentiary hearing shall be held only when 
necessary for resolution of material issues of fact.
    (b) A request that the administrative law judge order further 
proceedings under this section shall specifically identify the disputed 
issues and the evidence sought to be adduced, and shall explain why the 
additional proceedings are necessary to resolve the issues.
    (c) An order of the administrative law judge scheduling further 
proceedings shall specify the issues to be considered.
    (d) Any evidentiary hearing held pursuant to this section shall be 
open to the public and shall be conducted in accordance with Sec. Sec. 
102.30 to 102.44 of these rules, except Sec. Sec. 102.33, 102.34 and 
102.38.
    (e) Rulings of the administrative law judge shall be reviewable by 
the Board only in accordance with the provisions of Sec. 102.26.



Sec. 102.153  Administrative law judge's decision; contents; service; 
transfer of case to the Board; contents of record in case.

    (a) Upon conclusion of proceedings under Sec. Sec. 102.147 to 
102.152, the administrative law judge shall prepare a decision. The 
decision shall include written findings and conclusions as necessary to 
dispose of the application. The administrative law judge shall file the 
original of his decision with the Board and cause a copy thereof to be 
served on each of the parties. Upon the filing of the decision, the 
Board shall enter an order transferring the case to the Board and shall 
serve copies of the order, setting forth the date of such transfer, on 
all the parties. Service of the administrative law judge's decision and 
of the order transferring the case to the Board shall be complete upon 
mailing.
    (b) The record in a proceeding on an application for an award of 
fees and expenses shall include the application and any amendments or 
attachments thereto, the net worth exhibit, the answer and any 
amendments or attachments thereto, any reply to the answer, any comments 
by other parties, motions, rulings, orders, stipulations, written 
submissions, the stenographic transcript of any oral argument, the 
stenographic transcript of any hearing, exhibits and depositions, 
together with the administrative law judge's decision and exceptions, 
any cross-exceptions or answering briefs as provided in Sec. 102.46, 
and the record of the adversary adjudication upon which the application 
is based.



Sec. 102.154  Exceptions to administrative law judge's decision; briefs; 
action of Board.

    Procedures before the Board, including the filing of exceptions to 
the administrative law judge's decision and briefs, and action by the 
Board, shall be in accordance with Sec. Sec. 102.46, 102.47, 102.48 and 
102.50 of these rules. The Board will issue a decision on the 
application or remand the proceeding to the administrative law judge for 
further proceedings.

[[Page 108]]



Sec. 102.155  Payment of award.

    To obtain payment of an award made by the Board the applicant shall 
submit to the Director, Division of Administration, a copy of the 
Board's final decision granting the award, accompanied by a statement 
that the applicant will not seek court review of the decision. If such 
statement is filed the Agency will pay the amount of the award within 60 
days, unless judicial review of the award or of the underlying decision 
has been sought.



      Subpart U_Debt-Collection Procedures by Administrative Offset

    Source: 62 FR 55164, Oct. 23, 1997, unless otherwise noted.



Sec. 102.156  Administrative offset; purpose and scope.

    The regulations in this subpart specify the Agency procedures that 
will be followed to implement the administrative offset procedures set 
forth in the Debt Collection Act of 1982 (Pub. L. 97-365), 31 U.S.C. 
3716.



Sec. 102.157  Definitions.

    (a) The term administrative offset means the withholding of money 
payable by the United States to, or held by the United States on behalf 
of, a person to satisfy a debt owed the United States by that person.
    (b) The term debtor is any person against whom the Board has a 
claim.
    (c) The term person does not include any agency of the United 
States, or any state or local government.
    (d) The terms claim and debt are synonymous and interchangeable. 
They refer to an amount of money or property which has been determined 
by an appropriate Agency official to be owed to the United States from 
any person, organization, or entity, except another Federal agency.
    (e) A debt is considered delinquent if it has not been paid by the 
date specified in the Agency's initial demand letter (Sec. 102.161), 
unless satisfactory payment arrangements have been made by that date, or 
if, at any time thereafter, the debtor fails to satisfy his obligations 
under a payment agreement with the Agency.



Sec. 102.158  Agency requests for administrative offsets and cooperation 
with other Federal agencies.

    Unless otherwise prohibited by law, the Agency may request that 
monies due and payable to a debtor by another Federal agency be 
administratively offset in order to collect debts owed the Agency by the 
debtor. In requesting an administrative offset, the Agency will provide 
the other Federal agency holding funds of the debtor with written 
certification stating:
    (a) That the debtor owes the Board a debt (including the amount of 
debt); and
    (b) That the Agency has complied with the applicable Federal Claims 
Collection Standards, including any hearing or review.



Sec. 102.159  Exclusions.

    (a)(1) The Agency is not authorized by the Debt Collection Act of 
1982 (31 U.S.C. 3716) to use administrative offset with respect to:
    (i) Debts owed by any State or local government;
    (ii) Debts arising under or payments made under the Social Security 
Act, the Internal Revenue Code of 1954, or the tariff laws of the United 
States; or
    (iii) When a statute explicitly provides for or prohibits using 
administrative offset to collect the claim or type of claim involved.
    (2) No claim that has been outstanding for more than 10 years after 
the Board's right to collect the debt first accrued may be collected by 
means of administrative offset, unless facts material to the right to 
collect the debt were not known and could not reasonably have been known 
by the official of the Agency who was charged with the responsibility to 
discover and collect such debts until within 10 years of the initiation 
of the collection action. A determination of when the debt first accrued 
should be made according to existing laws regarding the accrual of 
debts, such as under 28 U.S.C. 2415. Unless otherwise provided by 
contract or law, debts or payments owed the Board which are not subject 
to administrative offset under 31 U.S.C. 3716

[[Page 109]]

may be collected by administrative offset under the common law or other 
applicable statutory authority, pursuant to this paragraph or Board 
regulations established pursuant to such other statutory authority.
    (b) Collection by offset against a judgment obtained by a debtor 
against the United States shall be accomplished in accordance with 31 
U.S.C. 3728.



Sec. 102.160  Agency responsibilities.

    (a) The Agency shall provide appropriate written or other guidance 
to Agency officials in carrying out this subpart, including the issuance 
of guidelines and instructions, which may be deemed appropriate. The 
Agency shall also take such administrative steps as may be appropriate 
to carry out the purposes and ensure the effective implementation of 
this subpart.
    (b) Before collecting a claim by means of administrative offset, the 
Agency must ensure that administrative offset is feasible, allowable and 
appropriate, and must notify the debtor of the Agency's policies for 
collecting a claim by means of administrative offset.
    (c) Whether collection by administrative offset is feasible is a 
determination to be made by the Agency on a case-by-case basis, in the 
exercise of sound discretion. The Agency shall consider not only whether 
administrative offset can be accomplished, both practically and legally, 
but also whether administrative offset will further and protect the best 
interests of the United States Government. In appropriate circumstances, 
the Agency may give due consideration to the debtor's financial 
condition, and it is not expected that administrative offset will be 
used in every available instance, particularly where there is another 
readily available source of funds. The Agency may also consider whether 
administrative offset would substantially interfere with or defeat the 
purposes of the program authorizing the payments against which offset is 
contemplated.
    (d) Administrative offset shall be considered by the Agency only 
after attempting to collect a claim under 31 U.S.C. 3711(a).



Sec. 102.161  Notification.

    (a) The Agency shall send a written demand to the debtor in terms 
which inform the debtor of the consequences of failure to cooperate. In 
the demand letter, the Agency shall provide the name of an Agency 
employee who can provide a full explanation of the claim. When the 
Agency deems it appropriate to protect the Government's interests (for 
example, to prevent the statute of limitations, 28 U.S.C. 2415, from 
expiring), written demand may be preceded by other appropriate actions.
    (b) In accordance with guidelines established by the Agency, the 
Agency official responsible for collection of the debt shall send 
written notice to the debtor, informing such debtor as appropriate:
    (1) Of the nature and amount of the Board's claim;
    (2) Of the date by which payment is to be made (which normally 
should be not more than 30 days from the date that the initial 
notification was mailed or hand delivered);
    (3) Of the Agency's intention to collect by administrative offset 
and of the debtor's rights in conjunction with such an offset;
    (4) That the Agency intends to collect, as appropriate, interest, 
penalties, administrative costs and attorneys fees;
    (5) Of the rights of such debtor to a full explanation of the claim, 
of the opportunity to inspect and copy Agency records with respect to 
the claim and to dispute any information in the Agency's records 
concerning the claim;
    (6) Of the debtor's right to administrative appeal or review within 
the Agency concerning the Agency's claim and how such review shall be 
obtained;
    (7) Of the debtor's opportunity to enter into a written agreement 
with the Agency to repay the debt; and
    (8) Of the date on which, or after which, an administrative offset 
will begin.

[[Page 110]]



Sec. 102.162  Examination and copying of records related to the claim; 
opportunity for full explanation of the claim.

    Following receipt of the demand letter specified in Sec. 102.161, 
and in conformity with Agency guidelines governing such requests, the 
debtor may request to examine and copy publicly available records 
pertaining to the debt, and may request a full explanation of the 
Agency's claim.



Sec. 102.163  Opportunity for repayment.

    (a) The Agency shall afford the debtor the opportunity to repay the 
debt or enter into a repayment plan which is agreeable to the Agency and 
is in a written form signed by such debtor. The Agency may deem a 
repayment plan to be abrogated if the debtor should, after the repayment 
plan is signed, fail to comply with the terms of the plan.
    (b) The Agency has discretion and should exercise sound judgment in 
determining whether to accept a repayment agreement in lieu of 
administrative offset.



Sec. 102.164  Review of the obligation.

    (a) The debtor shall have the opportunity to obtain review by the 
Agency of the determination concerning the existence or amount of the 
debt as set forth in the notice. In cases where the amount of the debt 
has been fully liquidated, the review is limited to ensuring that the 
liquidated amount is correctly represented in the notice.
    (b) The debtor seeking review shall make the request in writing to 
the Agency, not more than 15 days from the date the demand letter was 
received by the debtor. The request for review shall state the basis for 
challenging the determination. If the debtor alleges that the Agency's 
information relating to the debt is not accurate, timely, relevant or 
complete, the debtor shall provide information or documentation to 
support this allegation.
    (c) The Agency may effect an administrative offset against a payment 
to be made to a debtor prior to the completion of the due process 
procedures required by this subpart, if failure to take the offset would 
substantially prejudice the Agency's ability to collect the debt; for 
example, if the time before the payment is to be made would not 
reasonably permit the completion of due process procedures. 
Administrative offset effected prior to completion of due process 
procedures must be promptly followed by the completion of those 
procedures. Amounts recovered by administrative offset, but later found 
not owed to the Agency, will be promptly refunded.
    (d) Upon completion of the review, the Agency's reviewing official 
shall transmit to the debtor the Agency's decision. If appropriate, this 
decision shall inform the debtor of the scheduled date on or after which 
administrative offset will begin. The decision shall also, if 
appropriate, indicate any changes in information to the extent such 
information differs from that provided in the initial notification to 
the debtor under Sec. 102.161.
    (e) Nothing in this subpart shall preclude the Agency from sua 
sponte reviewing the obligation of the debtor, including a 
reconsideration of the Agency's determination concerning the debt, and 
the accuracy, timeliness, relevance, and completeness of the information 
on which the debt is based.



Sec. 102.165  Cost shifting.

    Costs incurred by the Agency in connection with referral of debts 
for administrative offset will be added to the debt and thus increase 
the amount of the offset. Such costs may include administrative costs 
and attorneys fees.



Sec. 102.166  Additional administrative collection action.

    Nothing contained in this subpart is intended to preclude the Agency 
from utilizing any other administrative or legal remedy which may be 
available.



Sec. 102.167  Prior provision of rights with respect to debt.

    To the extent that the rights of the debtor in relation to the same 
debt have been previously provided for under some other statutory or 
regulatory authority, the Agency is not required to duplicate those 
efforts before effecting administrative offset.

[[Page 111]]



Subpart V_Debt Collection Procedures By Federal Income Tax Refund Offset

    Source: 62 FR 55166, Oct. 23, 1997, unless otherwise noted.



Sec. 102.168  Federal income tax refund offset; purpose and scope.

    The regulations in this subpart specify the Agency procedures that 
will be followed in order to implement the Federal income tax refund 
offset procedures set forth in 26 U.S.C. 6402(d) of the Internal Revenue 
Code (Code), 31 U.S.C. 3720A, and 301.6402-6 of the Treasury Regulations 
on Procedure and Administration (26 CFR 301.6402-6). This statute and 
the implementing regulations of the Internal Revenue Service (IRS) at 26 
CFR 301.6402-6 authorize the IRS to reduce a tax refund by the amount of 
a past-due legally enforceable debt owed to the United States. The 
regulations apply to past-due legally enforceable debts owed to the 
Agency by individuals and business entities. The regulations are not 
intended to limit or restrict debtor access to any judicial remedies to 
which he or she may otherwise be entitled.



Sec. 102.169  Definitions.

    (a) Tax refund offset refers to the IRS income tax refund offset 
program operated under authority of 31 U.S.C. 3720A.
    (b) Past-due legally enforceable debt is a delinquent debt 
administratively determined to be valid, whereon no more than 10 years 
have lapsed since the date of delinquency (unless reduced to judgment), 
and which is not discharged under a bankruptcy proceeding or subject to 
an automatic stay under 11 U.S.C. 362.
    (c) Individual refers to a taxpayer identified by a social security 
number (SSN).
    (d) Business entity refers to an entity identified by an employer 
identification number (EIN).
    (e) Taxpayer mailing address refers to the debtor's current mailing 
address as obtained from IRS.
    (f) Memorandum of understanding refers to the agreement between the 
Agency and IRS outlining the duties and responsibilities of the 
respective parties for participation in the tax refund offset program.



Sec. 102.170  Agency referral to IRS for tax referral effect; Agency 
responsibilities.

    (a) As authorized and required by law, the Agency may refer past-due 
legally enforceable debts to the Internal Revenue Service (IRS) for 
collection by offset from any overpayment of income tax that may 
otherwise be due to be refunded to the taxpayer. By the date and in the 
manner prescribed by the IRS, the Agency may refer for tax refund offset 
past-due legally enforceable debts. Such referrals shall include the 
following information:
    (1) Whether the debtor is an individual or a business entity;
    (2) The name and taxpayer identification number (SSN or EIN) of the 
debtor who is responsible for the debt;
    (3) The amount of the debt;
    (4) A designation that the Agency is referring the debt and (as 
appropriate) Agency account identifiers.
    (b) The Agency will ensure the confidentiality of taxpayer 
information as required by IRS in its Tax Information Security 
Guidelines.
    (c) As necessary, the Agency will submit updated information at the 
times and in the manner prescribed by IRS to reflect changes in the 
status of debts or debtors referred for tax refund offset.
    (d) Amounts erroneously offset will be refunded by the Agency or IRS 
in accordance with the Memorandum of Understanding.



Sec. 102.171  Cost shifting.

    Costs incurred by the Agency in connection with referral of debts 
for tax refund offset will be added to the debt and thus increase the 
amount of the offset. Such costs may include administrative costs and 
attorneys fees.



Sec. 102.172  Minimum referral amount.

    The minimum amount of a debt otherwise eligible for Agency referral 
to the IRS is $25 for individual debtors and $100 for business debtors. 
The amount referred may include the principal portion of the debt, as 
well as any accrued interest, penalties, administrative cost charges, 
and attorney fees.

[[Page 112]]



Sec. 102.173  Relation to other collection efforts.

    (a) Tax refund offset is intended to be an administrative collection 
remedy to be utilized consistent with IRS requirements for participation 
in the program, and the costs and benefits of pursuing alternative 
remedies when the tax refund offset program is readily available. To the 
extent practical, the requirements of the program will be met by merging 
IRS requirements into the Agency's overall requirements for delinquent 
debt collection.
    (b) As appropriate, debts of an individual debtor of $100 or more 
will be reported to a consumer or commercial credit reporting agency 
before referral for tax refund offset.
    (c) Debts owed by individuals will be screened for administrative 
offset potential using the most current information reasonably available 
to the Agency, and will not be referred for tax refund offset where 
administrative offset potential is found to exist.



Sec. 102.174  Debtor notification.

    (a) The Agency shall send appropriate written demand to the debtor 
in terms which inform the debtor of the consequences of failure to repay 
debts or claims owed the Board.
    (b) Before the Agency refers a debt to IRS for tax refund offset, it 
will make a reasonable attempt to notify the debtor that:
    (1) The debt is past-due;
    (2) Unless the debt is repaid or a satisfactory repayment agreement 
is established within 60 days thereafter, the debt will be referred to 
IRS for offset from any overpayment of tax remaining after taxpayer 
liabilities of greater priority have been satisfied; and
    (3) The debtor will have a minimum of 60 days from the date of 
notification to present evidence that all or part of the debt is not 
past due or legally enforceable, and the Agency will consider this 
evidence in a review of its determination that the debt is past due and 
legally enforceable. The debtor will be advised where and to whom 
evidence is to be submitted.
    (c) The Agency will make a reasonable attempt to notify the debtor 
by using the most recent address information available to the Agency or 
obtained from the IRS, unless written notification to the Agency is 
received from the debtor stating that notices from the Agency are to be 
sent to a different address.
    (d) The notification required by paragraph (b) of this section and 
sent to the address specified in paragraph (c) of this section may, at 
the option of the Agency, be incorporated into demand letters required 
by paragraph (a) of this section.



Sec. 102.175  Agency review of the obligation.

    (a) The Agency official responsible for collection of the debt will 
consider any evidence submitted by the debtor as a result of the 
notification required by Sec. 102.174 and notify the debtor of the 
result. If appropriate, the debtor will also be advised where and to 
whom to request a review of any unresolved dispute.
    (b) The debtor will be granted 30 days from the date of the 
notification required by paragraph (a) of this section to request a 
review of the determination of the Agency official responsible for 
collection of the debt on any unresolved dispute. The debtor will be 
advised of the result.



Sec. 102.176  Prior provision of rights with respect to debt.

    To the extent that the rights of the debtor in relation to the same 
debt have been previously provided under some other statutory or 
regulatory authority, including administrative offset procedures set 
forth in subpart U, the Agency is not required to duplicate those 
efforts before referring a debt for tax refund offset.



       Subpart W_Misconduct by Attorneys or Party Representatives



Sec. 102.177  Exclusion from hearings; Refusal of witness to answer 

questions; Misconduct by attorneys and party representatives before 
the Agency; Procedures for processing misconduct allegations.

    (a) Any attorney or other representative appearing or practicing 
before the Agency shall conform to the standards of ethical and 
professional conduct required of practitioners before the

[[Page 113]]

courts, and the Agency will be guided by those standards in interpreting 
and applying the provisions of this section.
    (b) Misconduct by any person at any hearing before an administrative 
law judge, hearing officer, or the Board shall be grounds for summary 
exclusion from the hearing. Notwithstanding the procedures set forth in 
paragraph (e) of this section for handling allegations of misconduct, 
the administrative law judge, hearing officer, or Board shall also have 
the authority in the proceeding in which the misconduct occurred to 
admonish or reprimand, after due notice, any person who engages in 
misconduct at a hearing.
    (c) The refusal of a witness at any such hearing to answer any 
question which has been ruled to be proper shall, in the discretion of 
the administrative law judge or hearing officer, be grounds for striking 
all testimony previously given by such witness on related matters.
    (d) Misconduct by an attorney or other representative at any stage 
of any Agency proceeding, including but not limited to misconduct at a 
hearing, shall be grounds for discipline. Such misconduct of an 
aggravated character shall be grounds for suspension and/or disbarment 
from practice before the Agency and/or other sanctions.
    (e) All allegations of misconduct pursuant to paragraph (d) of this 
section, except for those involving the conduct of Agency employees, 
shall be handled in accordance with the following procedures:
    (1) Allegations that an attorney or party representative has engaged 
in misconduct may be brought to the attention of the Investigating 
Officer by any person. The Investigating Officer, for purposes of this 
paragraph, shall be the Associate General Counsel, Division of 
Operations-Management, or his/her designee.
    (2) The Investigating Officer or his/her designee shall conduct such 
investigation as he/she deems appropriate and shall have the usual 
powers of investigation provided in Section 11 of the Act. Following the 
investigation, the Investigating Officer shall make a recommendation to 
the General Counsel, who shall make the determination whether to 
institute disciplinary proceedings against the attorney or party 
representative. The General Counsel's authority to make this 
determination shall not be delegable to the Regional Director or other 
personnel in the Regional Office. If the General Counsel determines not 
to institute disciplinary proceedings, all interested persons shall be 
notified of the determination, which shall be final.
    (3) If the General Counsel decides to institute disciplinary 
proceedings against the attorney or party representative, the General 
Counsel or his/her designee shall serve the Respondent with a complaint 
which shall include: a statement of the acts which are claimed to 
constitute misconduct including the approximate date and place of such 
acts together with a statement of the discipline recommended; 
notification of the right to a hearing before an administrative law 
judge with respect to any material issues of fact or mitigation; and an 
explanation of the method by which a hearing may be requested. Such a 
complaint shall not be issued until the Respondent has been notified of 
the allegations in writing and has been afforded a reasonable 
opportunity to respond.
    (4) Within 14 days of service of the disciplinary complaint, the 
respondent shall file an answer admitting or denying the allegations, 
and may request a hearing. If no answer is filed or no material issue of 
fact or relevant to mitigation warranting a hearing is raised, the 
matter may be submitted directly to the Board. If no answer is filed, 
then the allegations shall be deemed admitted.
    (5) Sections 102.24 through 102.51, rules applicable to unfair labor 
practice proceedings, shall be applicable to disciplinary proceedings 
under this section to the extent that they are not contrary to the 
provisions of this section.
    (6) The hearing shall be conducted at a reasonable time, date, and 
place. In setting the hearing date, the administrative law judge shall 
give due regard to the respondent's need for time to prepare an adequate 
defense and the need of the Agency and the respondent

[[Page 114]]

for an expeditious resolution of the allegations.
    (7) The hearing shall be public unless otherwise ordered by the 
Board or the administrative law judge.
    (8) Any person bringing allegations of misconduct or filing a 
petition for disciplinary proceedings against an attorney or party 
representative shall be given notice of the scheduled hearing. Any such 
person shall not be a party to the disciplinary proceeding, however, and 
shall not be afforded the rights of a party to call, examine or cross- 
examine witnesses and introduce evidence at the hearing, to file 
exceptions to the administrative law judge's decision, or to appeal the 
Board's decision.
    (9) The respondent will, upon request, be provided with an 
opportunity to read the transcript or listen to a recording of the 
hearing.
    (10) The General Counsel must establish the alleged misconduct by a 
preponderance of the evidence.
    (11) At any stage of the proceeding prior to hearing, the respondent 
may submit a settlement proposal to the General Counsel, who may approve 
the settlement or elect to continue with the proceedings. Any formal 
settlement reached between the General Counsel and the respondent, 
providing for entry of a Board order reprimanding, suspending, 
disbarring or taking other disciplinary action against the respondent, 
shall be subject to final approval by the Board. In the event any 
settlement, formal or informal, is reached after opening of the hearing, 
such settlement must be submitted to the administrative law judge for 
approval. In the event the administrative law judge rejects the 
settlement, either the General Counsel or the respondent may appeal such 
ruling to the Board as provided in Sec. 102.26.
    (12) If it is found that the respondent has engaged in misconduct in 
violation of paragraph (d) of this section, the Board may issue a final 
order imposing such disciplinary sanctions as it deems appropriate, 
including, where the misconduct is of an aggravated character, 
suspension and/or disbarment from practice before the Agency, and/or 
other sanctions.
    (f) Any person found to have engaged in misconduct warranting 
disciplinary sanctions under paragraph (d) of this section may seek 
judicial review of the administrative determination.

[61 FR 65331, Dec. 12, 1996]

           Appendix A to Part 102--NLRB Official Office Hours

NLRB Headquarters, Business Hours
 (Local Time):
  Washington, DC......................  8:30 a.m.-5 p.m.
Division of Judges, Business Hours
 (Local Time):
  Washington, DC......................  8:30 a.m.-5 p.m.
  San Francisco.......................  8:30 a.m.-5 p.m.
  New York............................  8:30 a.m.-5 p.m.
  Atlanta.............................  8 a.m.-4:30 p.m.
Regional Office Business Hours (Local
 Time):
  1--Boston...........................  8:30 a.m.-5 p.m.
  2--New York.........................  8:45 a.m.-5:15 p.m.
  3--Buffalo..........................  8:30 a.m.-5 p.m.
    Albany............................  8:30 a.m.-5 p.m.
  4--Philadelphia.....................  8:30 a.m.-5 p.m.
  5--Baltimore........................  8:15 a.m.-4:45 p.m.
    Washington, DC....................  8:15 a.m.-4:45 p.m.
  6--Pittsburgh.......................  8:30 a.m.-5 p.m.
  7--Detroit..........................  8:15 a.m.-4:45 p.m.
    Grand Rapids......................  8:15 a.m.-4:45 p.m.
  8--Cleveland........................  8:15 a.m.-4:45 p.m.
  9--Cincinnati.......................  8:30 a.m.-5 p.m.
  10--Atlanta.........................  8 a.m.-4:30 p.m.
    Birmingham........................  8 a.m.-4:30 p.m.
  11--Winston-Salem...................  8 a.m.-4:30 p.m.
  12--Tampa...........................  8 a.m.-4:30 p.m.
    Jacksonville......................  8 a.m.-4:30 p.m.
    Miami.............................  8 a.m.-4:30 p.m.
  13--Chicago.........................  8:30 a.m.-5 p.m.
  14--St. Louis.......................  8 a.m.-4:30 p.m.
  15--New Orleans.....................  8 a.m.-4:30 p.m.
  16--Fort Worth......................  8:15 a.m.-4:45 p.m.
    Houston...........................  8 a.m.-4:30 p.m.
    San Antonio.......................  8 a.m.-4:30 p.m.
  17--Kansas City.....................  8:15 a.m.-4:45 p.m.
    Tulsa.............................  8:15 a.m.-4:45 p.m.
  18--Minneapolis.....................  8 a.m.-4:30 p.m.
    Des Moines........................  8 a.m.-4:30 p.m.
  19--Seattle.........................  8:15 a.m.-4:45 p.m.
    Anchorage.........................  8:15 a.m.-4:45 p.m.
    Portland..........................  8 a.m.-4:30 p.m.
  20--San Francisco...................  8:30 a.m.-5 p.m.
    Honolulu..........................  8 a.m.-4:30 p.m.
  21--Los Angeles.....................  8:30 a.m.-5 p.m.
    San Diego.........................  8:30 a.m.-5 p.m.
  22--Newark..........................  8:45 a.m.-5:15 p.m.
  24--Puerto Rico.....................  8:30 a.m.-5 p.m.
  25--Indianapolis....................  8:30 a.m.-5 p.m.
  26--Memphis.........................  8 a.m.-4:30 p.m.
    Little Rock.......................  8 a.m.-4:30 p.m.
    Nashville.........................  8 a.m.-4:30 p.m.
  27--Denver..........................  8:30 a.m.-5 p.m.
  28--Phoenix.........................  8:15 a.m.-4:45 p.m.
    Albuquerque.......................  8:15 a.m.-4:45 p.m.
    El Paso...........................  8:15 a.m.-4:45 p.m.

[[Page 115]]

 
    Las Vegas.........................  8:30 a.m.-5 p.m.
  29--Brooklyn........................  9 a.m.-5:30 p.m.
  30--Milwaukee.......................  8 a.m.-4:30 p.m.
  31--Los Angeles.....................  8:30 a.m.-5 p.m.
  32--Oakland.........................  8:30 a.m.-5 p.m.
  33--Peoria..........................  8:30 a.m.-5 p.m.
  34--Hartford........................  8:30 a.m.-5 p.m.
 


[57 FR 4158, Feb. 4, 1992]



PART 103_OTHER RULES--Table of Contents




                   Subpart A_Jurisdictional Standards

Sec.
103.1 Colleges and universities.
103.2 Symphony orchestras.
103.3 Horseracing and dogracing industries.

                      Subpart B_Election Procedures

103.20 Posting of election notices.

                 Subpart C_Appropriate Bargaining Units

103.30 Appropriate bargaining units in the health care industry.

Subpart E [Reserved]

                        Subpart F_Remedial Orders

103.100 Offers of reinstatement to employees in Armed Forces.

    Authority: 29 U.S.C. 156, in accordance with the procedure set forth 
in 5 U.S.C. 553.



                   Subpart A_Jurisdictional Standards



Sec. 103.1  Colleges and universities.

    The Board will assert its jurisdiction in any proceeding arising 
under sections 8, 9, and 10 of the Act involving any private nonprofit 
college or university which has a gross annual revenue from all sources 
(excluding only contributions which, because of limitation by the 
grantor, are not available for use for operating expenses) of not less 
than $1 million.

[35 FR 18370, Dec. 3, 1970]



Sec. 103.2  Symphony orchestras.

    The Board will assert its jurisdiction in any proceeding arising 
under sections 8, 9, and 10 of the Act involving any symphony orchestra 
which has a gross annual revenue from all sources (excluding only 
contributions which are because of limitation by the grantor not 
available for use for operating expenses) of not less than $1 million.

[38 FR 6177, Mar. 7, 1973]



Sec. 103.3  Horseracing and dogracing industries.

    The Board will not assert its jurisdiction in any proceeding under 
sections 8, 9, and 10 of the Act involving the horseracing and dogracing 
industries.

[38 FR 9507, Apr. 17, 1973]



                      Subpart B_Election Procedures



Sec. 103.20  Posting of election notices.

    (a) Employers shall post copies of the Board's official Notice of 
Election in conspicuous places at least 3 full working days prior to 
12:01 a.m. of the day of the election. In elections involving mail 
ballots, the election shall be deemed to have commenced the day the 
ballots are deposited by the Regional Office in the mail. In all cases, 
the notices shall remain posted until the end of the election.
    (b) The term working day shall mean an entire 24-hour period 
excluding Saturdays, Sundays, and holidays.
    (c) A party shall be estopped from objecting to nonposting of 
notices if it is responsible for the nonposting. An employer shall be 
conclusively deemed to have received copies of the election notice for 
posting unless it notifies the Regional Office at least 5 working days 
prior to the commencement of the election that it has not received 
copies of the election notice.
    (d) Failure to post the election notices as required herein shall be 
grounds for setting aside the election whenever proper and timely 
objections are filed under the provisions of Sec. 102.69(a).

[52 FR 25215, July 6, 1987]



                 Subpart C_Appropriate Bargaining Units



Sec. 103.30  Appropriate bargaining units in the health care industry.

    (a) This portion of the rule shall be applicable to acute care 
hospitals, as defined in paragraph (f) of this section: Except in 
extraordinary circumstances and in circumstances in which there

[[Page 116]]

are existing non-conforming units, the following shall be appropriate 
units, and the only appropriate units, for petitions filed pursuant to 
section 9(c)(1)(A)(i) or 9(c)(1)(B) of the National Labor Relations Act, 
as amended, except that, if sought by labor organizations, various 
combinations of units may also be appropriate:
    (1) All registered nurses.
    (2) All physicians.
    (3) All professionals except for registered nurses and physicians.
    (4) All technical employees.
    (5) All skilled maintenance employees.
    (6) All business office clerical employees.
    (7) All guards.
    (8) All nonprofessional employees except for technical employees, 
skilled maintenance employees, business office clerical employees, and 
guards.

Provided That a unit of five or fewer employees shall constitute an 
extraordinary circumstance.
    (b) Where extraordinary circumstances exist, the Board shall 
determine appropriate units by adjudication.
    (c) Where there are existing non-conforming units in acute care 
hospitals, and a petition for additional units is filed pursuant to sec. 
9(c)(1)(A)(i) or 9(c)(1)(B), the Board shall find appropriate only units 
which comport, insofar as practicable, with the appropriate unit set 
forth in paragraph (a) of this section.
    (d) The Board will approve consent agreements providing for 
elections in accordance with paragraph (a) of this section, but nothing 
shall preclude regional directors from approving stipulations not in 
accordance with paragraph (a), as long as the stipulations are otherwise 
acceptable.
    (e) This rule will apply to all cases decided on or after May 22, 
1989.
    (f) For purposes of this rule, the term:
    (1) Hospital is defined in the same manner as defined in the 
Medicare Act, which definition is incorporated herein (currently set 
forth in 42 U.S.C. 1395x(e), as revised 1988);
    (2) Acute care hospital is defined as: either a short term care 
hospital in which the average length of patient stay is less than thirty 
days, or a short term care hospital in which over 50% of all patients 
are admitted to units where the average length of patient stay is less 
than thirty days. Average length of stay shall be determined by 
reference to the most recent twelve month period preceding receipt of a 
representation petition for which data is readily available. The term 
``acute care hospital'' shall include those hospitals operating as acute 
care facilities even if those hospitals provide such services as, for 
example, long term care, outpatient care, psychiatric care, or 
rehabilitative care, but shall exclude facilities that are primarily 
nursing homes, primarily psychiatric hospitals, or primarily 
rehabilitation hospitals. Where, after issuance of a subpoena, an 
employer does not produce records sufficient for the Board to determine 
the facts, the Board may presume the employer is an acute care hospital.
    (3) Psychiatric hospital is defined in the same manner as defined in 
the Medicare Act, which definition is incorporated herein (currently set 
forth in 42 U.S.C. 1395x(f)).
    (4) The term rehabilitation hospital includes and is limited to all 
hospitals accredited as such by either Joint Committee on Accreditation 
of Healthcare Organizations or by Commission for Accreditation of 
Rehabilitation Facilities.
    (5) A non-conforming unit is defined as a unit other than those 
described in paragraphs (a) (1) through (8) of this section or a 
combination among those eight units.
    (g) Appropriate units in all other health care facilities: The Board 
will determine appropriate units in other health care facilities, as 
defined in section 2(14) of the National Labor Relations Act, as 
amended, by adjudication.

[54 FR 16347, Apr. 21, 1989]

Subpart E [Reserved]

[[Page 117]]



                        Subpart F_Remedial Orders



Sec. 103.100  Offers of reinstatement to employees in Armed Forces.

    When an employer is required by a Board remedial order to offer an 
employee employment, reemployment, or reinstatement, or to notify an 
employee of his or her entitlement to reinstatement upon application, 
the employer shall, if the employee is serving in the Armed Forces of 
the United States at the time such offer or notification is made, also 
notify the employee of his or her right to reinstatement upon 
application in accordance with the Military Selective Service Act of 
1967, as amended, after discharge from the Armed Forces.

[37 FR 21939, Oct. 17, 1972, as amended at 38 FR 9506, Apr. 17, 1973]

[[Page 119]]



  CHAPTER II--OFFICE OF LABOR-MANAGEMENT STANDARDS, DEPARTMENT OF LABOR




  --------------------------------------------------------------------
Part                                                                Page
215             Guidelines, section 5333(b), Federal Transit 
                    Law.....................................         121
220             Airline employee protection program.........         124

[[Page 121]]



PART 215_GUIDELINES, SECTION 5333(b), FEDERAL TRANSIT LAW--Table of Contents




Sec.
215.1 Purpose.
215.2 General.
215.3 Employees represented by a labor organization.
215.4 Employees not represented by a labor organization.
215.5 Processing of amendatory applications.
215.6 The Model Agreement.
215.7 The Special Warranty.
215.8 Department of Labor contact.

    Authority: Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 60 FR 62969, Dec. 7, 1995, unless otherwise noted.



Sec. 215.1  Purpose.

    (a) The purpose of these guidelines is to provide information 
concerning the Department of Labor's administrative procedures in 
processing applications for assistance under the Federal Transit law, as 
codified at 49 U.S.C. chapter 53.
    (b) Section 5333(b) of title 49 of the United States Code reads as 
follows:

    Employee protective arrangements. (1) As a condition of financial 
assistance under sections 5307-5312, 5318(d), 5323 (a)(1), (b), (d), and 
(e), 5328, 5337, and 5338(j)(5) of this title, the interests of 
employees affected by the assistance shall be protected under 
arrangements the Secretary of Labor concludes are fair and equitable. 
The agreement granting the assistance under sections 5307-5312, 5318(d), 
5323 (a)(1), (b), (d), and (e), 5328, 5337, and 5338(j)(5) shall specify 
the arrangements.
    (2) Arrangements under this subsection shall include provisions that 
may be necessary for--
    (A) the preservation of rights, privileges, and benefits (including 
continuation of pension rights and benefits) under existing collective 
bargaining agreements or otherwise;
    (B) the continuation of collective bargaining rights;
    (C) the protection of individual employees against a worsening of 
their positions related to employment;
    (D) assurances of employment to employees of acquired mass 
transportation systems;
    (E) assurances of priority of reemployment of employees whose 
employment is ended or who are laid off; and
    (F) paid training or retraining programs.
    (3) Arrangements under this subsection shall provide benefits at 
least equal to benefits established under section 11347 of this title.



Sec. 215.2  General.

    Upon receipt of copies of applications for Federal assistance 
subject to 49 U.S.C. 5333(b), together with a request for the 
certification of employee protective arrangements from the Department of 
Transportation, the Department of Labor will process those applications, 
which may be in either preliminary or final form. The Federal Transit 
Administration will provide the Department with the information 
necessary to enable the Department to certify the project.



Sec. 215.3  Employees represented by a labor organization.

    (a)(1) If affected employees are represented by a labor 
organization, it is expected that where appropriate, protective 
arrangements shall be the product of negotiation/discussion, pursuant to 
these guidelines.
    (2) In instances where states or political subdivisions are subject 
to legal restrictions on bargaining with employee organizations, the 
Department of Labor will utilize special procedures to satisfy the 
Federal statute in a manner which does not contravene state or local 
law. For example, employee protective terms and conditions, acceptable 
to both employee and applicant representatives, may be incorporated into 
a resolution adopted by the involved local government.
    (3) If an application involves a grant to a state administrative 
agency which will pass assistance through to subrecipients, the 
Department of Labor will refer and process each subrecipient's 
respective portion of the project in accordance with this section. If a 
state administrative agency has previously provided employee protections 
on behalf of subrecipients, the referral will be based on those terms 
and conditions.
    (4) These procedures are not applicable to grants under section 
5311; grants to applicants serving populations under 200,000 under the 
Job Access and Reverse Commute Program; or grants to capitalize SIB 
accounts under the State Infrastructure Bank Program.
    (b) Upon receipt of an application involving affected employees 
represented by a labor organization, the Department of Labor will refer 
a copy of the

[[Page 122]]

application to that organization and notify the applicant of referral.
    (1) If an application involves only a capital grant for routine 
replacement of equipment of like kind and character and/or facilities of 
like kind and character, the procedural requirements set forth in 
Sec. Sec. 215.3(b)(2) through 215.3(h) of these guidelines will not 
apply absent a potentially material effect on employees. Where no such 
effect is found, the Department of Labor will certify the application 
based on the terms and conditions as referenced in Sec. Sec. 215.3(b)(2) 
or 215.3(b)(3)(ii).
    (2) For applicants with previously certified arrangements, the 
referral will be based on those terms and conditions.
    (3) For new applicants and applicants for which previously certified 
arrangements are not appropriate to the current project, the referral 
will be based on appropriate terms and conditions specified by the 
Department of Labor, as follows:
    (i) For operating grants, the terms and conditions will be based on 
arrangements similar to those of the Model Agreement (referred to also 
as the National Agreement);
    (ii) For capital grants, the terms and conditions will be based on 
arrangements similar to those of the Special Warranty applied pursuant 
to section 5311.
    (c) Following referral and notification under paragraph (b) of this 
section, and subject to the exceptions defined in Sec. 215.5, parties 
will be expected to engage in good faith efforts to reach mutually 
acceptable protective arrangements through negotiation/discussion within 
the timeframes designated under paragraphs (d) and (e) of this section.
    (d) As part of the Department of Labor's review of an application, a 
time schedule for case processing will be established by the Department 
of Labor and specified in its referral and notification letters under 
paragraph 215.3(b) or subsequent written communications to the parties.
    (1) Parties will be given fifteen (15) days from the date of the 
referral and notification letters to submit objections, if any, to the 
referred terms. The parties are encouraged to engage in negotiations/
discussions during this period with the aim of arriving at a mutually 
agreeable solution to objections any party has to the terms and 
conditions of the referral.
    (2) Within ten (10) days of the date for submitting objections, the 
Department of Labor will:
    (i) Determine whether the objections raised are sufficient; and
    (ii) Take one of the two steps described in paragraphs (d)(5) and 
(6) of this section, as appropriate.
    (3) The Department of Labor will consider an objection to be 
sufficient when:
    (i) The objection raises material issues that may require 
alternative employee protections under 49 U.S.C. 5333(b); or
    (ii) The objection concerns changes in legal or factual 
circumstances that may materially affect the rights or interests of 
employees.
    (4) The Department of Labor will consult with the Federal Transit 
Administration for technical advice as to the validity of objections.
    (5) If the Department of Labor determines that there are no 
sufficient objections, the Department will issue its certification to 
the Federal Transit Administration.
    (6) If the Department of Labor determines that an objection is 
sufficient, the Department, as appropriate, will direct the parties to 
commence or continue negotiations/discussions, limited to issues that 
the Department deems appropriate and limited to a period not to exceed 
thirty (30) days. The parties will be expected to negotiate/discuss 
expeditiously and in good faith. The Department of Labor may provide 
mediation assistance during this period where appropriate. The parties 
may agree to waive any negotiations/discussions if the Department, after 
reviewing the objections, develops new terms and conditions acceptable 
to the parties. At the end of the designated negotiation/discussion 
period, if all issues have not been resolved, each party must submit to 
the Department its final proposal and a statement describing the issues 
still in dispute.
    (7) The Department will issue a certification to the Federal Transit 
Administration within five (5) days after

[[Page 123]]

the end of the negotiation/discussion period designated under paragraph 
(d)(6) of this section. The certification will be based on terms and 
conditions agreed to by the parties that the Department concludes meet 
the requirements of 49 U.S.C. 5333(b). To the extent that no agreement 
has been reached, the certification will be based on terms and 
conditions determined by the Department which are no less protective 
than the terms and conditions included in the referral pursuant to 
Sec. Sec. 215.3(b)(2) and 215.3(b)(3).
    (8) Notwithstanding that a certification has been issued to the 
Federal Transit Administration pursuant to paragraph (d)(7) of this 
section, no action may be taken which would result in irreparable harm 
to employees if such action concerns matters subject to the steps set 
forth in paragraph (e) of this section.
    (e) If the certification referred to in paragraph (d)(7) of this 
section is not based on full mutual agreement of the parties, the 
Department of Labor will take the following steps to resolve outstanding 
differences:
    (1) The Department will set a schedule that provides for final 
resolution of the disputed issue(s) within sixty (60) days of the 
certification referred to in paragraph (d)(7) of this section.
    (2) Within ten (10) days of the issuance of the certification 
referred to in paragraph (d)(7) of this section, and after reviewing the 
parties' descriptions of the disputed issues, the Department will define 
the issues still in dispute and set a schedule for final resolution of 
all such issues.
    (3) The Department may establish a briefing schedule, usually 
allowing no more than twenty (20) days for opening briefs and no more 
than ten (10) days for reply briefs, when the Department deems reply 
briefs to be beneficial. In either event, the Department will issue a 
final certification to the Federal Transit Administration no later than 
thirty (30) days after the last briefs are due.
    (4) The Department of Labor will decide the manner in which the 
dispute will be resolved. In making this decision, the Department may 
consider the form(s) of dispute resolution employed by the parties in 
their previous dealings as well as various forms of third party dispute 
resolution that may be appropriate. Any dispute resolution proceedings 
will normally be expected to commence within thirty (30) days of the 
certification referred to in paragraph (d)(7) of this section, and the 
Department will render a final determination, including the bases 
therefor, within thirty (30) days of the commencement of the 
proceedings.
    (5) The Department will make available final decisions it renders on 
disputed issues.
    (f) Nothing in these guidelines restricts the parties from 
continuing to negotiate/discuss over final terms and conditions and 
seeking a final certification of an agreement that meets the 
requirements of the Act prior to the issuance of a final determination 
by the Department.
    (g) If, subsequent to the issuance of the certification referred to 
in paragraph (d)(7) of this section, the parties reach an agreement on 
one or more disputed issues that meets the requirements of the Act, and/
or the Department of Labor issues a final decision containing revised 
terms and conditions, the Department will take appropriate steps to 
substitute the new terms and conditions for those previously certified 
to the Federal Transit Administration.
    (h) Notwithstanding the foregoing, the Department retains the right 
to withhold certification where circumstances inconsistent with the 
statute so warrant until such circumstances have been resolved.

[60 FR 62969, Dec. 7, 1995, as amended at 64 FR 40992, July 28, 1999]



Sec. 215.4  Employees not represented by a labor organization.

    (a) The certification made by the Department of Labor will afford 
the same level of protection to those employees who are not represented 
by labor organizations.
    (b) If there is no labor organization representing employees, the 
Department of Labor will set forth the protective terms and conditions 
in the letter of certification.

[[Page 124]]



Sec. 215.5  Processing of amendatory applications.

    When an application is supplemental to or revises or amends in 
immaterial respects an application for which the Department of Labor has 
already certified that fair and equitable arrangements have been made to 
protect the interests of mass transit employees affected by the subject 
project the Department of Labor will on its own initiative apply to the 
supplemental or other amendatory application the same terms and 
conditions as were certified for the subject project as originally 
constituted. The Department of Labor's processing of these applications 
will be expedited.



Sec. 215.6  The Model Agreement.

    The Model (or National) Agreement mentioned in paragraph (b)(3)(i) 
of Sec. 215.3 refers to the agreement executed on July 23, 1975 by 
representatives of the American Public Transit Association and the 
Amalgamated Transit Union and Transport Workers Union of America and on 
July 31, 1975 by representatives of the Railway Labor Executives' 
Association, Brotherhood of Locomotive Engineers, Brotherhood of Railway 
and Airline Clerks and International Association of Machinists and 
Aerospace Workers. The agreement is intended to serve as a ready-made 
employee protective arrangement for adoption by local parties in 
specific operating assistance project situations. The Department has 
determined that this agreement provides fair and equitable arrangements 
to protect the interests of employees in general purpose operating 
assistance project situations and meets the requirements of 49 U.S.C. 
5333(b).



Sec. 215.7  The Special Warranty.

    The Special Warranty mentioned in paragraph (b)(3)(ii) of Sec. 
215.3 refers to the protective arrangements developed for application to 
the small urban and rural program under section 5311 of the Federal 
Transit statute. The warranty arrangement represents the understandings 
of the Department of Labor and the Department of Transportation, reached 
in May 1979, with respect to the protections to be applied for such 
grants. The Special Warranty provides fair and equitable arrangements to 
protect the interests of employees and meets the requirements of 49 
U.S.C. 5333(b).



Sec. 215.8  Department of Labor contact.

    Questions concerning the subject matter covered by this part should 
be addressed to Director, Statutory Programs, U.S. Department of Labor, 
Suite N5603, 200 Constitution Avenue, N.W., Washington, DC 20210; phone 
number 202-693-0126.

[64 FR 40995, July 28, 1999]



PART 220_AIRLINE EMPLOYEE PROTECTION PROGRAM--Table of Contents




 Subpart A_Purpose and Scope of the Airline Employee Protection Program

Sec.
220.01 Definitions.
220.02 Purpose.
220.03 Scope.
220.04 Responsibilities of the Secretary of Labor.

         Subpart B_Designated Employees' Eligibility and Rights

220.10 Eligibility requirements.
220.11 Designated employees' rights.

                  Subpart C_Carriers' Responsibilities

220.20 Duty to hire.
220.21 Criteria for employment.
220.22 Listing a vacancy.
220.23 Content of vacancy listing.
220.24 Filling a vacancy.
220.25 List of protected employees.
220.26 Appeals to the Secretary.
220.27 Notice of rights.
220.28 Air carrier actions to be reported to the Secretary.
220.29 Equal employment opportunity.

            Subpart D_Designated Employees' Responsibilities

220.30 Designated employees' responsibilities.

            Subpart E_Department of Labor's Responsibilities

220.40 Comprehensive job list.
220.41 List of protected employees.

                        Subpart F_Administration

220.50 Effective period of the program.
220.51 Disclosure of information.

[[Page 125]]


Appendix I to Part 220--U.S. Carriers Certificated as of October 23, 
          1978 Under Section 401 of the Federal Aviation Act of 1958, as 
          Amended

    Authority: Section 43(f) of the Airline Deregulation Act of 1978, 
Pub. L. No. 95-504, 92 Stat. 1750-1753 (49 U.S.C. 1552); Secretary's 
Order No. 1-79, 44 FR 13093; Secretary's Order No. 5-96, 62 FR 107, 
January 2, 1997.

    Source: 50 FR 53101, Dec. 27, 1985, unless otherwise noted.



 Subpart A_Purpose and Scope of the Airline Employee Protection Program



Sec. 220.01  Definitions.

    As used in this part, unless the content otherwise indicates:
    (a) Act means the Airline Deregulation Act of 1978, Public Law 95-
504, 92 Stat. 1705.
    (b) Air Carrier means an air carrier certificated under section 401 
of the Federal Aviation Act of 1958 (49 U.S.C. 1371).
    (c) Center means the entity or location which from time to time may 
be designated by the Secretary to receive, maintain and distribute the 
job listing information required by this part.
    (d) Corporate officer means an individual who holds any officer's 
position established pursuant to the Articles of Incorporation or bylaws 
of any air carrier, or who is otherwise identified as an officer by any 
air carrier, in filings with the Federal Aviation Administration, Civil 
Aeronautics Board or Securities and Exchange Commission or in any 
reports to stockholders or any public communications of an air carrier.
    (e) Covered air carrier means an air carrier which was certificated 
prior to October 24, 1978 (A listing of such carriers appears as an 
appendix to this part).
    (f) Designated employee means a protected employee who meets the 
eligibility requirements set forth in Sec. 220.10.
    (g) Effective period means the period commencing on the effective 
date of these regulations and ending on the later of:
    (1) October 23, 1988, or
    (2) The last day of the final month in which the Secretary is 
required to make a payment under section 43 of the Act; except that 
nothing in these regulations shall preclude the exercise of statutory 
rights and duties between October 24, 1978, and the effective date of 
these regulations.
    (h) Eligibility period means the ten-year period beginning on 
October 24, 1978.
    (i) Employment relationship means an attachment to a covered air 
carrier which includes, but is not limited to, compensated service, 
furlough, leave, or strike.
    (j) Equal employment opportunity requirement means a specific equal 
employment requirement, pursuant to a Federal court or administrative 
order, consent decree, or conciliation agreement, requiring that named 
individuals or specific members of a class are entitled to relief by 
virtue of the carrier's unlawful employment discrimination.
    (k) Occupational specialty means the class, craft, or field of 
endeavor in which an individual was employed at the time of separation 
from a covered air carrier or in which the employee was employed during 
the 12 months immediately preceding the date of separation.
    (l) Protected employee means a person other than a member of the 
Board of Directors or corporate officer of a covered air carrier:
    (1) Who had an employment relationship with a covered air carrier on 
October 24, 1978, and
    (2) Who on October 24, 1978, had four years of employment or four 
years accrued seniority with a single covered air carrier. The term 
employee shall include any full or part-time employee other than an 
employee in seasonal or temporary employment as defined herein. As used 
herein four years of employment shall mean not less than 48 months 
(whether or not consecutive) in which the employee actually completed 
the minimum number of hours of regular employment required for such 
employee's craft, class or position under the then applicable 
requirements of the employing carrier.
    (m) Seasonal employment means employment during limited periods of 
the year due to peak market conditions or other factors which are 
periodic in nature, and in positions which do not confer seniority or 
recall rights.

[[Page 126]]

    (n) Secretary means the Secretary of Labor of the United States.
    (o) Temporary employment means employment of limited duration which 
does not confer seniority or recall rights.
    (p) Terminated, means, unless expressly provided to the contrary, 
termination of employment, other than for cause.
    (q) Terminated for cause means the separation of an individual from 
employment initiated by an air carrier for violation of such carrier's 
rules, policies, procedures, or practices pertaining to employee 
standards of conduct, job performance, or dependability.
    (r) Vacancy means an employment opportunity other than seasonal or 
temporary employment, which an air carrier seeks to fill from outside 
its existing or furloughed work force.



Sec. 220.02  Purpose.

    Section 43(d) of the Act provides a first-right-of-hire for 
designated employees of covered air carriers. The regulations in this 
part are issued to effectuate section 43(d) (1) and (2) of the Act 
(hereinafter referred to as the Rehire Program).



Sec. 220.03  Scope.

    (a) The Rehire Program is applicable only to designated employees, 
as more fully set forth herein, and only those employees who are 
expressly granted a hiring preference under the Act and these 
regulations have any rights under the Rehire Program. The Secretary of 
Labor will also publish a comprehensive list of jobs available with air 
carriers.



Sec. 220.04  Responsibilities of the Secretary of Labor.

    The Secretary of Labor is responsible for administering the Rehire 
Program, and the Assistant Secretary for Employment Standards has been 
delegated responsibility for the following:
    (a) The development and promulgation of policies, regulations and 
procedures covering the first-right-of-hire provisions of section 
43(d)(1) of the Act;
    (b) The development and promulgation of policies, regulations, and 
procedures covering the comprehensive job list required under section 
43(d)(2) of the Act; and
    (c) The establishment and implementation of reporting requirements 
for air carriers to obtain pertinent information necessary for 
fulfilling the Secretary's responsibilities under section 43(d)(2) of 
the Act.

[50 FR 53101, Dec. 27, 1985, as amended at 62 FR 6092, Feb. 10, 1997]



         Subpart B_Designated Employees' Eligibility and Rights



Sec. 220.10  Eligibility requirements.

    (a) To qualify as a designated employee eligible for rights under 
this part 220, an applicant must be a protected employee who is 
involuntarily placed on furlough or is terminated by a covered air 
carrier during the eligibility period.
    (b) A protected employee shall not be deemed to be furloughed or 
terminated if such employee:
    (1) Retired voluntarily;
    (2) Was required to retire by virtue of reaching the mandatory 
retirement age, if any, established by a covered air carrier or as 
prescribed by any government agency with regulatory authority over a 
covered air carrier;
    (3) Retired due to a disability;
    (4) Is on strike or is withholding services in support of other 
employees who have struck the covered air carrier;
    (5) Is terminated for cause as defined in Sec. 220.01;
    (6) Resigned or voluntarily quit for any reason.
    (c) A designated employee who is recalled by his former carrier is 
no longer eligible under this section to exercise the first-right-of-
hire. Such a person may become a designated employee in the future due 
to a subsequent termination or furlough which occurs on or prior to the 
expiration of the eligibility period.



Sec. 220.11  Designated employees' rights.

    (a) A designated employee shall have a first-right-of-hire in such 
employee's occupational specialty, regardless of age, with any covered 
air carrier hiring additional employees; Provided, however, That each 
designated employee must satisfy all qualifications or other

[[Page 127]]

requirements established by the hiring carrier (subject to the 
limitations contained in Sec. 220.21) and must make a timely 
application in accordance with normal carrier procedures for any 
particular job vacancy.
    (b) A designated employee hired by any covered air carrier pursuant 
to the provisions of the Act shall not be required, as a condition of 
employment, or in any other manner, to relinquish, waive, or forfeit any 
seniority or recall rights which such person may possess with any other 
air carrier; Provided, however, That the provisions of this part shall 
not be deemed to create or prolong any such seniority or recall rights.



                  Subpart C_Carriers' Responsibilities



Sec. 220.20  Duty to hire.

    (a) Subject to Sec. 220.24, a covered air carrier shall have the 
duty to hire a designated employee, regardless of age, who otherwise 
meets the qualification requirements established by such carrier before 
it hires any other applicant when such carrier is seeking to fill a 
vacancy in the designated employee's occupational specialty from outside 
its work force. As used herein ``work force'' shall include all present 
employees and any furloughed or terminated employees who, at the time of 
furlough or termination, possessed recall or seniority rights.
    (b) Subject to the provisions of Sec. 220.24, a covered air carrier 
shall not fill a vacancy, which would otherwise be available to a 
designated employee, by promoting or reassigning a seasonal or temporary 
employee, unless such seasonal or temporary employee is a designated 
employee.
    (c) When considering applications from more than one designated 
employee for a particular vacancy, a covered air carrier shall be 
entitled to offer employment to any such designated employee in its 
absolute discretion.



Sec. 220.21  Criteria for employment.

    (a) A covered air carrier shall be entitled to apply any 
prerequisites or qualifications determined by it for any vacancy, except 
that, solely with respect to the duty to hire created by the Act, a 
covered air carrier shall not be entitled to limit employment 
opportunities for designated employees on the basis of:
    (1) Initial hiring age (provided that such prohibition shall not be 
applicable to retirement ages applicable to all of any class or craft of 
such air carrier's employees); or
    (2) The existence of any seniority, recall rights or previous 
experience with any other air carrier; Provided, however, That covered 
air carriers shall be entitled to require prospective employees to 
disclose the existence of any such seniority or recall rights in making 
application for employment and to take the existence or nonexistence of 
such rights into account in selecting from among those qualified 
designated employees who have applied for a particular job vacancy.
    (b) In filling job vacancies during the effective period, covered 
air carriers shall be entitled to require applicants to furnish evidence 
that they are designated employees.

    Editorial Note: A court-ordered justification by the Secretary of 
Labor relating to 29 CFR 220.21(a)(1) appears at 51 FR 32306, Sept. 11, 
1986.



Sec. 220.22  Listing a vacancy.

    (a) During the effective period all air carriers shall be required 
to list each vacancy with the Center at the earliest practicable time, 
and to include with such listing a statement as to whether the carrier 
is subject to an equal employment opportunity requirement, as defined in 
these regulations, in filling the vacancy. In addition, any air carrier 
shall be entitled to list anticipated vacancies with the Center at any 
time.



Sec. 220.23  Content of vacancy listing.

    Air carriers shall provide the Center with a description for each 
job listing, which shall include, but need not be limited to, the 
following:
    (a) Job title;
    (b) Type of position (full or part-time);
    (c) Salary;
    (d) Basic qualifications and/or training requirements;
    (e) Brief description of duties;
    (f) Location of vacancy (if known);

[[Page 128]]

    (g) Special requirements such as type rating, licensing, skill 
requirements, etc.;
    (h) Whether the vacancy is subject to the duty to hire;
    (i) Information on how to apply, such as contact person, mailing 
address, and any special application procedures; and
    (j) Whether the carrier is subject to an equal employment 
opportunity requirement, as defined in these regulations, in filling the 
vacancy.

(Approved by the Office of Management and Budget under OMB control 
number 1214-0002)



Sec. 220.24  Filling a vacancy.

    (a) A covered air carrier may fill a vacancy with a designated 
employee at any time after a vacancy has been listed with the Center.
    (b) A covered air carrier may fill a vacancy with someone who is not 
a designated employee after the vacancy has been listed with the Center 
for at least 30 days; if
    (1) No designated employee with the requisite occupational specialty 
has applied for the vacancy in accordance with Sec. 220.30 within that 
time;
    (2) No designated employee who did apply within that time period 
meets the carriers' criteria for employment as set forth in Sec. 
220.21; or
    (3) The vacancy is subject to an equal employment opportunity 
requirement and the carrier cannot satisfy such equal employment 
opportunity requirement by hiring a designated employee.
    (c) A covered air carrier may fill a vacancy on a temporary basis 
with someone who is not a designated employee while the carrier is 
considering applications for the vacancy which were received from 
designated employees during the listing period.
    (d) The date of the listing shall be the date on which the listing 
is received by the Center.



Sec. 220.25  List of protected employees.

    (a) Within 60 calendar days of the effective date of these 
regulations, each covered air carrier shall provide the Secretary with a 
list of all protected employees who were employed by it on October 24, 
1978.
    (b) The list shall contain the following information:
    (1) Protected employee's name;
    (2) Social Security number (if available); and
    (3) Current occupational specialty for present employees or 
occupational specialty at the time of separation from employment for 
former employees.
    (c)(1) Not later than 90 calendar days after the effective date of 
these regulations, each covered air carrier shall provide a onetime 
notice to each employee with an employment relationship with the carrier 
on October 24, 1978, stating whether or not the carrier has determined 
that employee to be a protected employee within the meaning of these 
regulations, and if so that the carrier has reported his or her name to 
the Secretary. Employees who are determined to be not protected shall be 
advised of their rights to appeal.
    (2) Employees who dispute the carrier's determination of protected 
status may submit evidence of their status to the covered air carrier 
within 60 calendar days of receiving the notice required by paragraph 
(c)(1).
    (3) The covered air carrier shall consider the evidence submitted by 
the employee and shall inform the employee of its final determination 
within 15 calendar days of the submission of evidence. In the event the 
carrier determines that the employee qualifies as a protected employee, 
it shall forward the information required by paragraph (b) of this 
section to the Secretary.

(The requirements contained in Sec. 220.25(a) were approved by the 
Office of Management and Budget under OMB control number 1214-0002)



Sec. 220.26  Appeals to the Secretary.

    (a) If the employee disagrees with the carrier's final determination 
under Sec. 220.25 that he or she is not a protected employee within the 
meaning of this part, the employee (or his or her designated 
representative with express authorization) may appeal such determination 
to the Secretary within 60 calendar days of the carrier's final decision 
under Sec. 220.25(c)(3) or the date when such decision was required.
    (b) An appeal must be written, dated, and signed by the employee. It 
must set forth:

[[Page 129]]

    (1) The full name, address, and telephone number of the employee;
    (2) The full name and address of the carrier making the 
determination; the full name of the individual(s) who made the 
determination for the carrier and the date of that determination;
    (3) A summary of the pertinent events and circumstances concerning 
the employee's status and the basis of the disagreement, including the 
original date of hire, date of all periods of furlough, leave or 
termination, and copies of relevant documents; and
    (4) Such other information as may be required by the Secretary.
    (c) Any appeal hereunder may be filed with the Airline Employee 
Protection Program, Division of Statutory Programs, Office of Labor-
Management Standards, 200 Constitution Avenue, NW., Washington, DC 
20210.
    (d)(1) Upon receipt of an appeal, the Secretary will request 
information from the parties or conduct such other investigation as may 
be required.
    (2) Upon review of the entire record, the Secretary shall determine 
either that:
    (i) The employee qualifies for protected status, and the Secretary 
shall add the employee's name to the list of protected employees and so 
notify the parties; or
    (ii) The employee does not qualify for protected status and so 
notify the parties.

[50 FR 53101, Dec. 27, 1985, as amended at 62 FR 6092, Feb. 10, 1997]



Sec. 220.27  Notice of rights.

    (a) Not later than the date of separation from employment, a covered 
air carrier which furloughs or terminates a protected employee during 
the eligibility period, unless such furlough is limited to a specific 
period of less than 90 calendar days, shall furnish such protected 
employee with a notice of rights in the form of a letter or other 
written documentation that such employee is a designated employee and 
thereby is entitled to exercise a first-right-of-hire. Such notice of 
rights shall include, but not be limited to, the following information:
    (1) Name;
    (2) Social Security number (if available);
    (3) Occupational specialty;
    (4) Date of furlough or termination;
    (5) An official of the covered air carrier who can verify the 
individual's status as a designated employee; and
    (6) Signature, name, and location of the certifying official.
    (b) As soon as practicable, but not later than 60 calendar days 
following the effective date of these regulations, each covered air 
carrier shall make a reasonable effort to provide the notice or rights 
required in paragraph (a) of this section to any designated employee who 
was furloughed or terminated by such carrier on or after October 24, 
1978, and prior to the effective date of these regulations and who has 
not been recalled to employment by such covered air carrier.
    (c) A covered air carrier shall provide a verified true copy of the 
notice of rights to a designated employee who has lost his or her 
original copy.

(Approved by the Office of Management and Budget under OMB control 
number 1214-0002)



Sec. 220.28  Air carrier actions to be reported to the Secretary.

    (a) A covered air carrier shall report to the Secretary:
    (1) The names and Social Security numbers (if available) of all 
designated employees hired by it, and
    (2) The filling of any vacancy with other than a designated 
employee.

With respect to any occurrences reported under paragraph (a)(2) of this 
section, the report of the covered air carrier shall contain the job 
order number assigned to that vacancy by the Center, the date of hire, 
and a certification by a corporate officer that the carrier complied 
with the provisions of this part and that no qualified designated 
employee with the requisite occupational specialty applied in a timely 
manner.
    (b) Two copies of the reports required by this section shall be 
filed with the Secretary covering the six-month periods ending June 30 
and December 31 of each calendar year in which these regulations are in 
effect and shall be submitted within 60 calendar days of the end of the 
reporting period.

(Approved by the Office of Management and Budget under OMB control 
number 1214-0002)

[[Page 130]]



Sec. 220.29  Equal employment opportunity.

    (a) Where a covered air carrier is under an equal employment 
opportunity requirement, the covered air carrier shall, to the extent 
possible, satisfy this equal employment obligation by hiring qualified 
designated employees.
    (b) Where a covered air carrier is under an equal employment 
opportunity requirement and cannot satisfy such requirement by hiring 
from the pool of qualified designated employees, the carrier may meet 
its equal employment requirement by hiring non-designated employees. 
Provided, however, That this provision shall not change or reduce the 
responsibilities of carriers in regard to the hiring procedures required 
by Sec. Sec. 220.21, 220.22, 220.23, and 220.24.



            Subpart D_Designated Employees' Responsibilities



Sec. 220.30  Designated employees' responsibilities.

    It is the responsibility of each designated employee to:
    (a) Make application to any covered air carrier for whom the 
designated employee desires to work in the time and manner required by 
such carrier.
    (b) To insure that an application previously submitted to a covered 
air carrier which currently lists a vacancy is in an active status so as 
to be considered for such vacancy;
    (c) To provide a copy, if requested, of the notice of rights to a 
potential employing air carrier; and
    (d) To retain the original notice of rights for future use.



            Subpart E_Department of Labor's Responsibilities



Sec. 220.40  Comprehensive job list.

    (a) The Secretary shall establish a Center to maintain a 
comprehensive listing of all vacancies listed by air carriers in 
accordance with Sec. Sec. 220.22 and 220.23.
    (b) The Center will be accessible by telephone throughout the United 
States to facilitate the listing or modifying of vacancy information by 
air carriers.
    (c) The Center shall provide an air carrier with an identifying 
number for each vacancy listed on the comprehensive listing.
    (d) The comprehensive listing shall be compiled, published and 
distributed to each local office of the State Employment Security 
Agencies on a periodic basis as determined necessary by the Secretary, 
and it shall be distributed to such other individuals or organizations 
as may desire to receive copies thereof in accordance with criteria 
established by the Secretary from time to time.



Sec. 220.41  List of protected employees.

    The Secretary shall establish and publish a list of protected 
employees as reported by covered air carriers under Sec. 220.25. A copy 
of this list shall be sent to all covered air carriers as soon as 
available.



                        Subpart F_Administration



Sec. 220.50  Effective period of the program.

    (a) Beginning date. (1) The requirements set forth in this part 
shall be effective thirty (30) days after publication in the Federal 
Register.
    (b) Ending date. This program and these regulations terminate on the 
last day of the effective period.
    (c) Nothing in this part shall affect the rights and duties of 
protected employees and covered air carriers under the Act prior to the 
effective date of this part.



Sec. 220.51  Disclosure of information.

    The Department of Labor shall make available to covered air carriers 
and to designated employees or their authorized representatives, all 
reports, certifications, or lists collected under this part, to the 
extent permitted by the Privacy Act (5 U.S.C. 552a) and the Department's 
regulations issued pursuant to that Act (29 CFR part 70a).

[[Page 131]]

  Appendix I to Part 220--U.S. Carriers Certificated as of October 23, 
 1978, Under Section 401 of the Federal Aviation Act of 1958, as Amended

     (Annotations Reflect Operating Status as of December 2, 1985.)

    1. Airlift International, Inc.
    2. Air Micronesia, Inc.
    3. Air Midwest
    4. Air New England, Inc.*
    5. Air Wisconsin, Inc.
    6. Alaska Airlines, Inc.
    7. Allegheny Airlines, Inc. (2)
    8. Aloha Airlines, Inc.
    9. American Airlines, Inc.
    10. Aspen Airways, Inc.
    11. Braniff Airways, Inc. (1)
    12. Capitol International Airways, Inc.*
    13. Chicago Helicopter Airways, Inc.*
    14. Colonial Airlines, Inc.*
    15. Continental Air Lines, Inc.
    16. Delta Air Lines, Inc.
    17. Eastern Airlines, Inc.
    18. Evergreen International Airlines, Inc.
    19. The Flying Tiger Line, Inc.
    20. Frontier Airlines, Inc.
    21. Hawaiian Airlines, Inc.
    22. Hughes Air Corp.* (4)
    23. Kodiak Western Alaska Airlines, Inc.*
    24. Mackey International Airlines, Inc.*
    25. McCulloch International Airlines, Inc.
    26. Midway Airlines, Inc.
    27. Midway (Southwest) Airways, Co.*
    28. Modern Airways, Inc. (1)
    29. Munz Northern Airlines, Inc.*
    30. National Airlines, Inc.* (5)
    31. New York Airways, Inc.*
    32. North Central Airlines, Inc.* (4)
    33. Northwest Airlines, Inc.
    34. Overseas National Airways, Inc.* (6)
    35. Ozark Air Lines, Inc.
    36. Pan American World Airways, Inc.
    37. Piedmont Aviation, Inc.
    38. Reeve Aleutian Airways, Inc.
    39. Rich International Airlines, Inc. (1)
    40. Seaboard World Airways, Inc.* (7)
    41. Southern Air Transport, Inc.
    42. Southern Airways, Inc.* (4)
    43. Texas International Airlines, Inc. (8)
    44. Trans International Airlines, Inc. (9)
    45. Trans World Airlines, Inc.
    46. United Airlines, Inc.
    47. Western Air Lines, Inc.
    48. Wien Air Alaska, Inc.
    49. World Airways, Inc.
    50. Wright Air Lines, Inc.
    51. Zantop International Airlines, Inc.

    * No longer holds certificate.
    (1) Holds certificate, but not operating.
    (2) Renamed U.S. Air, Inc.
    (3) Renamed Capitol Air, Inc.
    (4) Merged into Republic Airlines, Inc.
    (5) Merged into Pan American World Airways, Inc.
    (6) Ceased operation in September 1978. United Air Carriers, Inc., 
dba National Airlines and dba Overseas National Airways, may be a 
successor.
    (7) Merged into Flying Tiger Line, Inc.
    (8) Merged into Continental Airlines.
    (9) Renamed Transamerica Airlines, Inc.

[[Page 133]]



             CHAPTER III--NATIONAL RAILROAD ADJUSTMENT BOARD




  --------------------------------------------------------------------
Part                                                                Page
301             Rules of Procedure..........................         135

[[Page 135]]



PART 301_RULES OF PROCEDURE--Table of Contents




Sec.
301.1 General duties.
301.2 Classes of disputes.
301.3 Organization.
301.4 Jurisdiction.
301.5 Form of submission.
301.6 General.
301.7 Hearings.
301.8 Appearances.
301.9 Awards.

    Authority: Sec. 3, 44 Stat. 578, as amended; 45 U.S.C. 153.

    Source: Circular 1, Oct. 10, 1934, unless otherwise noted.



Sec. 301.1  General duties.

    (a) It shall be the duty of all carriers, their officers, agents and 
employees to exert every reasonable effort to make and maintain 
agreements concerning rates of pay, rules, and working conditions, and 
to settle all disputes, whether arising out of the application of such 
agreements or otherwise, in order to avoid any interruption to commerce 
or to the operation of any carrier growing out of any disputes between 
the carrier and the employees thereof.
    (b) All disputes between a carrier or carriers, and its or their 
employees shall be considered, and, if possible, decided, with all 
expedition, in conference between representatives designated and 
authorized so to confer, respectively, by the carrier or carriers and by 
the employees thereof interested in the dispute.



Sec. 301.2  Classes of disputes.

    (a) The disputes between an employee or group of employees and a 
carrier or carriers growing out of grievances or out of the 
interpretation or application of agreements concerning rates of pay, 
rules, or working conditions, including cases pending and unadjusted on 
the date of approval of this act (June 21, 1934, 48 Stat. 1185; 45 
U.S.C. 151-162), shall be handled in the usual manner up to and 
including the chief operating officer of the carrier designated to 
handle such disputes; but, failing to reach an adjustment in this 
manner, the disputes may be referred by petition of the parties or by 
either party to the appropriate division of the Adjustment Board with a 
full statement of the facts and all supporting data bearing upon the 
disputes.
    (b) No petition shall be considered by any division of the Board 
unless the subject matter has been handled in accordance with the 
provisions of the Railway Labor Act, approved June 21, 1934.



Sec. 301.3  Organization.

    The National Railroad Adjustment Board was organized as of July 31, 
1934, in accordance with the provisions of the Railway Labor Act, 
approved June 21, 1934. The said Adjustment Board is composed of four 
Divisions, whose proceedings shall be independent of one another. The 
First, Second and Third Divisions thereof are each composed of 10 
members, and the Fourth Division thereof is composed of 6 members.



Sec. 301.4  Jurisdiction.

    (a) First Division. The First Division will have jurisdiction over 
disputes involving train-and yard-service employees of carriers; that 
is, engineers, firemen, hostlers, and outside hostler helpers, 
conductors, trainmen, and yard-service employees.
    (b) Second Division. The Second Division will have jurisdiction over 
disputes involving machinists, boilermakers, blacksmiths, sheet-metal 
workers, electrical workers, car men, the helpers and apprentices of all 
the foregoing, coach cleaners, power-house employees, and railroad-shop 
laborers.
    (c) Third Division. The Third Division will have jurisdiction over 
disputes involving station tower, and telegraph employees, train 
dispatchers, maintenance-of-way men, clerical employees, freight 
handlers, express, station, and store employees, signal men, sleeping-
car conductors, sleeping-car porters, and maids and dining-car 
employees.
    (d) Fourth Division. The Fourth Division will have jurisdiction over 
disputes involving employees of carriers directly or indirectly engaged 
in transportation of passengers or property by water, and all other 
employees of carriers over which jurisdiction is not given to the First, 
Second, and Third Divisions.

[[Page 136]]



Sec. 301.5  Form of submission.

    (a) Parties. All parties to the dispute must be stated in each 
submission.
    (b) Statement of claim. Under the caption ``statement of claims'' 
the petitioner or petitioners must clearly state the particular question 
upon which an award is desired.
    (c) Statement of facts. In a ``joint statement of facts,'' if 
possible, briefly, but fully set forth the controlling facts involved. 
In the event of inability to agree upon a ``joint statement of facts,'' 
then each party shall show separately the facts as they respectively 
believe them to be.
    (d) Position of employees. Under the caption ``position of 
employees'' the employees must clearly and briefly set forth all 
relevant, argumentative facts, including all documentary evidence 
submitted in exhibit form, quoting the agreement or rules involved, if 
any; and all data submitted in support of employees' position must 
affirmatively show the same to have been presented to the carrier and 
made a part of the particular question in dispute.
    (e) Position of carrier. Under the caption ``position of carrier'' 
the carrier must clearly and briefly set forth all relevant, 
argumentative facts, including all documentary evidence submitted in 
exhibit form, quoting the agreement or rules involved, if any; and all 
data submitted in support of carrier's position must affirmatively show 
the same to have been presented to the employees or duly authorized 
representative thereof and made a part of the particular question in 
dispute.
    (f) Signatures. All submissions must be signed by the parties 
submitting the same.
    (g) Ex parte submission. In event of an ex parte submission the same 
general form of submission is required. The petitioner will serve 
written notice upon the appropriate Division of the Adjustment Board of 
intention to file an ex parte submission on a certain date (30 days 
hence), and at the same time provide the other party with copy of such 
notice. For the purpose of identification such notice will state the 
question involved and give a brief description of the dispute. The 
Secretary of the appropriate Division of the Adjustment Board will 
immediately thereupon advise the other party of the receipt of such 
notice and request that the submission of such other party be filed with 
such Division within the same period of time.



Sec. 301.6  General.

    (a) To conserve time and expedite proceedings all parties within the 
scope of the Adjustment Board should prepare submissions in such manner 
that the pertinent and related facts and all supporting data bearing 
upon the dispute will be fully set forth, thus obviating the need of 
lengthy briefs and unnecessary oral discussions.
    (b) All submissions shall be typewritten or machine prepared, 
addressed to the Secretary of the appropriate Division of the Adjustment 
Board, and fifteen copies thereof filed by the petitioner or 
petitioners.
    (c) Parties to a dispute are required to state in all submissions 
whether or not an oral hearing is desired.



Sec. 301.7  Hearings.

    (a) Oral hearings will be granted if requested by the parties or 
either of them and due notice will be given the parties of the time and 
date of the hearing.
    (b) The parties are, however, charged with the duty and 
responsibility of including in their original written submission all 
known relevant, argumentative facts and documentary evidence.



Sec. 301.8  Appearances.

    Parties may be heard either in person, by counsel, or by other 
representatives, as they may respectively elect.



Sec. 301.9  Awards.

    All awards of the Adjustment Board shall be signed by order of the 
appropriate Division thereof and shall be attested by the signature of 
its Secretary, as indicated thus:

national railroad adjustment board,

                                           By Order of----------Division
                                             Attest:--------------------
                                                             [Secretary]

[[Page 137]]



  CHAPTER IV--OFFICE OF LABOR-MANAGEMENT STANDARDS, DEPARTMENT OF LABOR




  --------------------------------------------------------------------

                SUBCHAPTER A--LABOR-MANAGEMENT STANDARDS
Part                                                                Page
401             Meaning of terms used in this subchapter....         139
402             Labor organization information reports......         141
403             Labor organization annual financial reports.         144
404             Labor organization officer and employee 
                    reports.................................         148
405             Employer reports............................         150
406             Reporting by labor relations consultants and 
                    other persons, certain agreements with 
                    employers...............................         152
408             Labor organization trusteeship reports......         155
409             Reports by surety companies.................         157
417             Procedure for removal of local labor 
                    organization officers...................         158
451             Labor organizations as defined in the Labor-
                    Management Reporting and Disclosure Act 
                    of 1959.................................         164
452             General statement concerning the election 
                    provisions of the Labor-Management 
                    Reporting and Disclosure Act of 1959....         169
453             General statement concerning the bonding 
                    requirements of the Labor-Management 
                    Reporting and Disclosure Act of 1959....         201
                   SUBCHAPTER B--STANDARDS OF CONDUCT
457             General.....................................         212
458             Standards of conduct........................         213
459             Miscellaneous...............................         227
 SUBCHAPTER C--EMPLOYEE RIGHTS CONCERNING PAYMENT OF UNION DUES OR FEES
470             Obligations of federal contractors and 
                    subcontractors; notice of employee 
                    rights concerning payment of union dues 
                    or fees.................................         229

[[Page 139]]



                 SUBCHAPTER A_LABOR-MANAGEMENT STANDARDS





PART 401_MEANING OF TERMS USED IN THIS SUBCHAPTER--Table of Contents




Sec.
401.1 Commerce.
401.2 State.
401.3 Industry affecting commerce.
401.4 Person.
401.5 Employer.
401.6 Employee.
401.7 Labor dispute.
401.8 Trusteeship.
401.9 Labor organization.
401.10 Labor organization engaged in an industry affecting commerce.
401.11 Secret ballot.
401.12 Trust in which a labor organization is interested.
401.13 Labor relations consultant.
401.14 Officer.
401.15 Member or member in good standing.
401.16 Secretary.
401.17 Act.
401.18 Office.
401.19 Assistant Secretary.

    Authority: Secs. 3, 208, 301, 401, 402, 73 Stat. 520, 529, 530, 532, 
534 (29 U.S.C. 402, 438, 461, 481, 482); Secretary's Order No. 5-96, 62 
FR 107, January 2, 1997; Sec. 401.4 also issued under sec. 320 of Title 
III of the Bankruptcy Reform Act of 1978, Pub. L. 95-598, 92 Stat. 2678.

    Source: 28 FR 14380, Dec. 27, 1963, unless otherwise noted.



Sec. 401.1  Commerce.

    Commerce means trade, traffic, commerce, transportation, 
transmission, or communication among the several States or between any 
State and any place outside thereof.



Sec. 401.2  State.

    State includes any State of the United States, the District of 
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake 
Island, the Canal Zone, and Outer Continental Shelf lands defined in the 
Outer Continental Shelf Lands Act (43 U.S.C. 1331-1343).



Sec. 401.3  Industry affecting commerce.

    Industry affecting commerce means any activity, business, or 
industry in commerce or in which a labor dispute would hinder or 
obstruct commerce or the free flow of commerce and includes any activity 
or industry ``affecting commerce'' within the meaning of the Labor 
Management Relations Act, 1947, as amended, or the Railway Labor Act, as 
amended.



Sec. 401.4  Person.

    Person includes one or more individuals, labor organizations, 
partnerships, associations, corporations, legal representatives, mutual 
companies, joint-stock companies, trusts, unincorporated organizations, 
trustees, trustees in cases under title 11 of the United States Code, or 
receivers.

[45 FR 70445, Oct. 24, 1980, as amended at 59 FR 15115, Mar. 31, 1994]



Sec. 401.5  Employer.

    Employer means any employer or any group or association of employers 
engaged in an industry affecting commerce (a) which is, with respect to 
employees engaged in an industry affecting commerce, an employer within 
the meaning of any law of the United States relating to the employment 
of any employees or (b) which may deal with any labor organization 
concerning grievances, labor disputes, wages, rates of pay, hours of 
employment, or conditions of work, and includes any person acting 
directly or indirectly as an employer or as an agent of an employer in 
relation to an employee but does not include the United States or any 
corporation wholly owned by the Government of the United States or any 
State or political subdivision thereof.



Sec. 401.6  Employee.

    Employee means any individual employed by an employer, and includes 
any individual whose work has ceased as a consequence of, or in 
connection with, any current labor dispute or because of any unfair 
labor practice or because of exclusion or expulsion from a labor 
organization in any manner or for any reason inconsistent with the 
requirements of this Act.



Sec. 401.7  Labor dispute.

    Labor dispute includes any controversy concerning terms, tenure, or

[[Page 140]]

conditions of employment, or concerning the association or 
representation of persons in negotiating, fixing, maintaining, changing, 
or seeking to arrange terms or conditions of employment, regardless of 
whether the disputants stand in the proximate relation of employer and 
employee.



Sec. 401.8  Trusteeship.

    Trusteeship means any receivership, trusteeship, or other method of 
supervision or control whereby a labor organization suspends the 
autonomy otherwise available to a subordinate body under its 
constitution or bylaws.



Sec. 401.9  Labor organization.

    Labor organization means a labor organization engaged in an industry 
affecting commerce and includes any organization of any kind, any 
agency, or employee representation committee, group, association, or 
plan so engaged in which employees participate and which exists for the 
purpose, in whole or in part, of dealing with employers concerning 
grievances, labor disputes, wages, rates of pay, hours, or other terms 
or conditions of employment, and any conference, general committee, 
joint or system board, or joint council so engaged which is subordinate 
to a national or international labor organization, other than a State or 
local central body.



Sec. 401.10  Labor organization engaged in an industry affecting commerce.

    A labor organization shall be deemed to be engaged in an industry 
affecting commerce if it:
    (a) Is the certified representative of employees under the 
provisions of the National Labor Relations Act, as amended, or the 
Railway Labor Act, as amended; or
    (b) Although not certified, is a national or international labor 
organization or a local labor organization recognized or acting as the 
representative of employees of an employer or employers engaged in an 
industry affecting commerce; or
    (c) Has chartered a local labor organization or subsidiary body 
which is representing or actively seeking to represent employees of 
employers within the meaning of paragraph (a) or (b) of this section; or
    (d) Has been chartered by a labor organization representing or 
actively seeking to represent employees within the meaning of paragraph 
(a) or (b) of this section as the local or subordinate body through 
which such employees may enjoy membership or become affiliated with such 
labor organization; or
    (e) Is a conference, general committee, joint or system board, or 
joint council, subordinate to a national or international labor 
organization, which includes a labor organization engaged in an industry 
affecting commerce within the meaning of any of the preceding paragraphs 
of this section, other than a State or local central body.



Sec. 401.11  Secret ballot.

    Secret ballot means the expression by ballot, voting machine, or 
otherwise, but in no event by proxy, of a choice with respect to any 
election or vote taken upon any matter, which is cast in such a manner 
that the person expressing such choice cannot be identified with the 
choice expressed.



Sec. 401.12  Trust in which a labor organization is interested.

    Trust in which a labor organization is interested means a trust or 
other fund or organization (a) which was created or established by a 
labor organization, or one or more of the trustees or one or more 
members of the governing body of which is selected or appointed by a 
labor organization, and (b) a primary purpose of which is to provide 
benefits for the members of such labor organization or their 
beneficiaries.



Sec. 401.13  Labor relations consultant.

    Labor relations consultant means any person who, for compensation, 
advises or represents an employer, employer organization, or labor 
organization concerning employee organizing, concerted activities, or 
collective bargaining activities.



Sec. 401.14  Officer.

    Officer means any constitutional officer, any person authorized to 
perform

[[Page 141]]

the functions of president, vice president, secretary, treasurer, or 
other executive functions of a labor organization, and any member of its 
executive board or similar governing body.



Sec. 401.15  Member or member in good standing.

    Member or member in good standing, when used in reference to a labor 
organization, includes any person who has fulfilled the requirements for 
membership in such organization, and who neither has voluntarily 
withdrawn from membership nor has been expelled or suspended from 
membership after appropriate proceedings consistent with lawful 
provisions of the constitution and bylaws of such organization.



Sec. 401.16  Secretary.

    Secretary means the Secretary of Labor.



Sec. 401.17  Act.

    Act means the Labor-Management Reporting and Disclosure Act of 1959.



Sec. 401.18  Office.

    Office means the Office of Labor-Management Standards, Employment 
Standards Administration, United States Department of Labor.

[62 FR 6092, Feb. 10, 1997]



Sec. 401.19  Assistant Secretary.

    Assistant Secretary means the Assistant Secretary of Labor for 
Employment Standards, head of the Employment Standards Administration.

[62 FR 6092, Feb. 10, 1997]



PART 402_LABOR ORGANIZATION INFORMATION REPORTS--Table of Contents




Sec.
402.1 Labor organization constitution and bylaws.
402.2 Labor organization initial information report.
402.3 Filing of initial reports.
402.4 Subsequent reports.
402.5 Terminal reports.
402.6 Receipt of reports and documents.
402.7 Effect of acknowledgment and filing by the Office of Labor-
          Management Standards.
402.8 Personal responsibility of signatories of reports.
402.9 Maintenance and retention of records.
402.10 Dissemination and verification of reports.
402.11 Attorney-client communications exempted.
402.12 Publication of reports required by this part.
402.13 OMB control number.

    Authority: Secs. 201, 207, 208, 73 Stat. 524, 529 (29 U.S.C. 431, 
437, 438); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 28 FR 14381, Dec. 27, 1963, unless otherwise noted.



Sec. 402.1  Labor organization constitution and bylaws.

    Every labor organization shall adopt a constitution and bylaws 
consistent with the provisions of the Act applicable thereto, within 90 
days after the date the labor organization first becomes subject to the 
Act. This shall not, however, require the formal readoption by a labor 
organization of such a constitution and bylaws which it has previously 
adopted and under which it is operating when the report prescribed by 
Sec. 402.2 is filed. As used in this part constitution and bylaws means 
the basic written rules governing the organization.

[28 FR 14381, Dec. 27, 1963, as amended at 40 FR 58856, Dec. 19, 1975]



Sec. 402.2  Labor organization initial information report.

    Every labor organization shall file a report signed by its president 
and secretary or corresponding principal officers containing the 
information required to be filed by section 201(a) of the Act, and found 
necessary to be reported under section 208 thereof by the Assistant 
Secretary, on United States Department of Labor Form LM-1 \1\ entitled, 
``Labor Organization Information Report''. There shall be attached to 
such report and made a part thereof a copy of the constitution and 
bylaws adopted by the reporting labor organization.
---------------------------------------------------------------------------

    \1\ Filed as part of the original document.

[28 FR 14381, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]



Sec. 402.3  Filing of initial reports.

    (a) Every labor organization shall file with the Office of Labor-
Management

[[Page 142]]

Standards the report and (subject to the provisions of paragraph (b) of 
this section, where applicable) a copy of its constitution and bylaws 
required by section 201(a) of the Act and Sec. 402.2, together with one 
additional copy of each, within 90 days after the date on which it first 
becomes subject to the Act.
    (b) A labor organization subject to paragraph (a) of this section 
may adopt or may have adopted as its constitution and bylaws (whether by 
formal action or by virtue of affiliation with a parent organization) a 
constitution and bylaws of a national or international labor 
organization which the national or international organization is 
required to file under section 201(a) of the Act and this part. In such 
a case, a filing by the national or international labor organization of 
copies of such constitution and bylaws will be accepted as a filing of 
such documents by each such adopting labor organization within the 
meaning of section 201(a) of the Act and this part, if the following 
conditions are met:
    (1) The national or international labor organizations shows in its 
report filed under paragraph (a) of this section that copies of its 
constitution and bylaws are being filed on behalf of such adopting 
organizations as well as on its own behalf, and files such number of 
additional copies as the Office of Labor-Management Standards may 
request, and
    (2) The adopting labor organization shows in its report filed under 
paragraph (a) of this section that the national or international 
constitution and bylaws are also its constitution and bylaws and that 
copies are filed on its behalf by the national or international labor 
organization.

If the constitution and bylaws of the adopting labor organization 
include other documents, this shall be shown in such report and copies 
shall be filed as provided in paragraph (a) of this section.

[28 FR 14381, Dec. 27, 1963, as amended at 35 FR 2990, Feb. 13, 1970; 40 
FR 58856, Dec. 19, 1975; 50 FR 31309, Aug. 1, 1985]



Sec. 402.4  Subsequent reports.

    (a) Except as noted elsewhere in this paragraph, every labor 
organization which revises the most recent constitution and bylaws it 
has filed with the Office of Labor-Management Standards shall file two 
dated copies of its revised constitution and bylaws at the time it files 
its annual financial report as provided in part 403 of this chapter. 
However, a labor organization which has as its constitution and bylaws a 
uniform constitution and bylaws prescribed by the reporting labor 
organization's parent national or international labor organization in 
accordance with Sec. 402.3(b) is not required to file copies of a 
revised uniform constitution and bylaws if the parent national or 
international labor organization files as many copies of the revised 
constitution and bylaws with the Office of Labor-Management Standards as 
the Office may request.
    (b) Every labor organization which changes the practices and 
procedures for which separate statements must be filed pursuant to 
subsection 201(a)(5) (A) through (M) of the Act shall file with the 
Office of Labor-Management Standards two copies of an amended Form LM-1, 
signed by its president and secretary or corresponding principal 
officers. The amended Form LM-1 shall be filed when the labor 
organization files its annual financial report as provided in part 403 
of this chapter.

[58 FR 67604, Dec. 21, 1993]



Sec. 402.5  Terminal reports.

    (a) Any labor organization required to file reports under the 
provisions of this part, which ceases to exist by virtue of dissolution 
or any other form of termination of its existence as a labor 
organization, or which loses its identity as a reporting labor 
organization through merger, consolidation or otherwise, shall file a 
report containing a detailed statement of the circumstances and 
effective date of such termination or loss of reporting identity, and if 
the latter, such report shall also state the name and mailing address of 
the labor organization into which it has been consolidated, merged, or 
otherwise absorbed. Such report shall be submitted on Form LM-2 in 
connection with the terminal financial report required by Sec. 403.5 of 
this chapter and shall be signed by the president and treasurer, or 
corresponding principal officers, of the

[[Page 143]]

labor organization at the time of its termination or loss of reporting 
identity and, together with a copy thereof, shall be filed with the 
Office of Labor-Management Standards within 30 days of the effective 
date of such termination or loss of reporting identity, as the case may 
be.
    (b) Labor organizations which qualify to use Form LM-3, the Labor 
Organization Annual Report, pursuant to Sec. Sec. 403.4 and 403.5 of 
this chapter may file the terminal report called for in this section on 
Form LM-3. This report must be signed by the president and treasurer, or 
corresponding principal officers, of the labor organization.
    (c) Labor organizations which qualify to use Form LM-4, the Labor 
Organization Annual Report, pursuant to Sec. Sec. 403.4 and 403.5 of 
this chapter may file the terminal report called for in this section on 
Form LM-4. The report must be signed by the president and treasurer, or 
corresponding principal officers, of the labor organization.

[28 FR 14381, Dec. 27, 1963, as amended at 62 FR 6092, Feb. 10, 1997]



Sec. 402.6  Receipt of reports and documents.

    Upon receipt of all reports and documents submitted for filing under 
the provisions of this part, the Office of Labor-Management Standards 
shall assign to the initial information report filed by each labor 
organization, an identifying number. This number thereafter shall be 
entered by the reporting labor organization on all subsequent or 
terminal reports and all other documents which it thereafter submits for 
filing under this part, as well as on all communications directed to the 
Office concerning such reports and documents.



Sec. 402.7  Effect of acknowledgment and filing by the Office of 
Labor-Management Standards.

    Acknowledgment by the Office of Labor-Management Standards of the 
receipt of reports and documents submitted for filing under this part, 
is intended solely to inform the sender of the receipt thereof by the 
Office, and neither such acknowledgment nor the filing of such reports 
and documents by the Office constitutes express or implied approval 
thereof, or in any manner indicates that the content of any such report 
or document fulfills the reporting or other requirements of the Act, or 
of the regulations in this chapter, applicable thereto.



Sec. 402.8  Personal responsibility of signatories of reports.

    Each individual required to sign any report under section 201(a) of 
the Act and under this part shall be personally responsible for the 
filing of such report and for any statement contained therein which he 
knows to be false.



Sec. 402.9  Maintenance and retention of records.

    Every person required to file any report under this part shall 
maintain records on the matters required to be reported which will 
provide in sufficient detail the necessary basic information and data 
from which the documents filed with the Office of Labor-Management 
Standards may be verified, explained or clarified, and checked for 
accuracy and completeness, and shall include vouchers, worksheets, 
receipts, and applicable resolutions, and shall keep such records 
available for examination for a period of not less than five years after 
the filing of the documents based on the information which they contain.



Sec. 402.10  Dissemination and verification of reports.

    Every labor organization required to submit a report under section 
201(a) of the Act and under this part shall make available to all its 
members the information required to be contained in such report, 
including the copy of the constitution and bylaws required to be filed 
therewith, and every such labor organization and its officers shall be 
under a duty to permit such member for just cause to examine any books, 
records, and accounts necessary to verify such report and constitution 
and bylaws.

[28 FR 14381, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]



Sec. 402.11  Attorney-client communications exempted.

    Nothing contained in this part shall be construed to require an 
attorney

[[Page 144]]

who is a member in good standing of the bar of any State, to include in 
any report required to be filed pursuant to the provisions of section 
201(a) of the Act, and of this part, any information which was lawfully 
communicated to such attorney by any of his clients in the course of a 
legitimate attorney-client relationship.



Sec. 402.12  Publication of reports required by this part.

    Inspection and examination of any report or other document filed as 
required by this part, and the furnishing by the Office of Labor-
Management Standards of copies thereof to any person requesting them, 
shall be governed by part 70 of this title.

[35 FR 2990, Feb. 13, 1970]



Sec. 402.13  OMB control number.

    The collecting of information requirements in this part have been 
approved by the Office of Management and Budget and assigned OMB control 
number 1215-0188.

[59 FR 15115, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]



PART 403_LABOR ORGANIZATION ANNUAL FINANCIAL REPORTS--Table of Contents




Sec.
403.1 Fiscal year for reports required by this part.
403.2 Annual financial report.
403.3 Form of annual financial report--detailed report.
403.4 Simplified annual reports for smaller labor organizations.
403.5 Terminal financial report.
403.6 Personal responsibility of signatories of reports.
403.7 Maintenance and retention of records.
403.8 Dissemination and verification of reports.
403.9 Attorney-client communications exempted.
403.10 Publication of reports required by this part.
403.11 OMB control number.

    Authority: Secs. 202, 207, 208, 73 Stat. 525, 529 (29 U.S.C. 432, 
437, 438); Secretary's Order No. 4-2001, 66 FR 29656, May 31, 2001.

    Source: 28 FR 14383, Dec. 27, 1963, unless otherwise noted.



Sec. 403.1  Fiscal year for reports required by this part.

    (a) As used in this part, unless otherwise defined, the term fiscal 
year means the calendar year or other period of 12 consecutive calendar 
months, on the basis of which financial accounts are kept by a labor 
organization reporting under this part. Where a labor organization 
designates a new fiscal year period prior to the expiration of a 
previously established fiscal year period, the resultant period of less 
than 12 consecutive calendar months, and thereafter the newly 
established fiscal year, shall in that order each constitute a fiscal 
year for purposes of the report required to be filed by section 201(b) 
of the Act, and of the regulations in this part.
    (b) A labor organization which is subject to section 201(b) of the 
Act for only a portion of its fiscal year because the labor organization 
first becomes subject to the Act during such fiscal year, may consider 
such portion as the entire fiscal year in making its report under this 
part.

[28 FR 14383, Dec. 27, 1963, as amended at 42 FR 59070, Nov. 15, 1977]



Sec. 403.2  Annual financial report.

    (a) Every labor organization shall, as prescribed by the regulations 
in this part, file with the Office of Labor-Management Standards within 
90 days after the end of each of its fiscal years, a financial report 
signed by its president and treasurer, or corresponding principal 
officers.
    (b) Every labor organization shall include in its annual financial 
report filed as provided in paragraph (a) of this section, in such 
detail as may be necessary accurately to disclose its financial 
condition and operations for its preceding fiscal year and in such 
categories as prescribed by the Assistant Secretary under the provisions 
of this part, the information required by section 201(b) of the Act and 
found by the Assistant Secretary under section 208 thereof to be 
necessary in such report.
    (c) If, on the date for filing the annual financial report of a 
labor organization required under section 201(b) of the Act and this 
section, such labor organization is in trusteeship, the labor

[[Page 145]]

organization which has assumed trusteeship over such labor organization 
shall file such report as provided in Sec. 408.5 of this chapter.
    (d) Every labor organization with annual receipts of $250,000 or 
more shall, except as otherwise provided, file a report on Form T-1 for 
every trust in which the labor organization is interested, as defined in 
section 3(l) of the Act, 29 U.S.C. 402(l), that has gross annual 
receipts of $250,000 or more, and to which $10,000 or more was 
contributed during the reporting period by the labor organization or on 
the labor organization's behalf or as a result of a negotiated agreement 
to which the labor organization is a party. A separate report shall be 
filed on Form T-1 for each such trust within 90 days after the end of 
the labor organization's fiscal year in the detail required by the 
instructions accompanying the form and constituting a part thereof, and 
shall be signed by the president and treasurer, or corresponding 
principal officers, of the labor organization. No Form T-1 need be filed 
for a trust if an annual financial report providing the same information 
and a similar level of detail is filed with another agency pursuant to 
federal or state law, as specified in the instructions accompanying Form 
T-1. In addition, an audit that meets the criteria specified in the 
Instructions for Form T-1 may be substituted for all but page 1 of the 
Form T-1. If, on the date for filing the annual financial report of such 
trust, such labor organization is in trusteeship, the labor organization 
that has assumed trusteeship over such subordinate labor organization 
shall file such report as provided in Sec. 408.5 of this chapter.

[28 FR 14383, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985; 68 
FR 58447, Oct. 9, 2003]



Sec. 403.3  Form of annual financial report--detailed report.

    Every labor organization shall, except as expressly provided 
otherwise in this part, file an annual financial report as required by 
Sec. 403.2, prepared on United States Department of Labor Form LM-2, 
``Labor Organization Annual Report,'' in the detail required by the 
instructions accompanying the form and constituting a part thereof.
    Note: Form LM-2 was revised at 58 FR 67594, December 21, 1993.

[28 FR 14383, Dec. 27, 1963, as amended at 62 FR 6092, Feb. 10, 1997]



Sec. 403.4  Simplified annual reports for smaller labor organizations.

    (a)(1) If a labor organization, not in trusteeship, has gross annual 
receipts totaling less than $200,000 for its fiscal year, it may elect, 
subject to revocation of the privileges as provided in section 208 of 
the Act, to file the annual financial report called for in section 
201(b) of the Act and Sec. 403.3 of this part on United States 
Department of Labor Form LM-3 entitled ``Labor Organization Annual 
Report,'' in accordance with the instructions accompanying such form and 
constituting a part thereof.
    (2) If a labor organization, not in trusteeship, has gross annual 
receipts totaling less than $10,000 for its fiscal year, it may elect, 
subject to revocation of the privileges as provided in section 208 of 
the Act, to file the annual financial report called for in section 
201(b) of the Act and Sec. 403.3 on United States Department of Labor 
Form LM-4 entitled ``Labor Organization Annual Report'' in accordance 
with the instructions accompanying such form and constituting a part 
thereof.
    (b) A local labor organization not in trusteeship, which has no 
assets, no liabilities, no receipts and no disbursements during the 
period covered by the annual report of the national organization with 
which it is affiliated need not file the annual report required by Sec. 
403.2 if the following conditions are met:
    (1) It is governed by a uniform constitution and bylaws filed on its 
behalf pursuant to Sec. 402.3(b) of this chapter, and does not have 
governing rules of its own;
    (2) Its members are subject to uniform fees and dues applicable to 
all members of the local labor organizations for which such simplified 
reports are submitted;
    (3) The national organization with which it is affiliated assumes 
responsibility for the accuracy of, and submits

[[Page 146]]

with its annual report, a separate letter-size sheet for each local 
labor organization containing the following information with respect to 
each local organization in the format illustrated below as part of this 
regulation:
    (i) The name and designation number or other identifying 
information;
    (ii) The file number which the Office of Labor-Management Standards 
has assigned to it;
    (iii) The mailing address;
    (iv) The beginning and ending date of the reporting period which 
must be the same as that of the report for the national organization;
    (v) The names and titles of the president and treasurer or 
corresponding principal officers as of the end of the reporting period;
    (4) At least thirty days prior to first submitting simplified annual 
reports in accordance with this section, the national organization 
notifies the Office of Labor-Management Standards in writing of its 
intent to begin submitting simplified annual reports for affiliated 
local labor organizations;
    (5) The national organization files the terminal report required by 
29 CFR 403.5(a) on Form LM-3 or LM-4, as may be appropriate, clearly 
labeled on the form as a terminal report, for any local labor 
organization which has lost its identity through merger, consolidation, 
or otherwise if the national organization filed a simplified annual 
report on behalf of the local labor organization for its last reporting 
period; and
    (6) The national organization with which it is affiliated assumes 
responsibility for the accuracy of, and submits with its annual report 
and the simplified annual reports for the affiliated local labor 
organizations, the following certification properly completed and signed 
by the president and treasurer of the national organization:

                              Certification

    We, the undersigned, duly authorized officers of [name of national 
organization], hereby certify that the local labor organizations 
individually listed on the attached documents come within the purview of 
29 CFR 403.4(b) for the reporting period from [beginning date of 
national organization's fiscal year] through [ending date of national 
organization's fiscal year], namely:
    (1) they are local labor organizations; (2) they are not in 
trusteeship; (3) they have no assets, liabilities, receipts, or 
disbursements; (4) they are governed by a uniform constitution and 
bylaws, and fifty copies of the most recent uniform constitution and 
bylaws have been filed with the Office of Labor-Management Standards; 
(5) they have no governing rules of their own; and (6) they are subject 
to the following uniform schedule of fees and dues: [specify schedule 
for dues, initiation fees, fees required from transfer members, and work 
permit fees, as applicable].
    Each document attached contains the specific information called for 
in 29 CFR 403.4(b)(3)(i)-(v), namely: (i) the local labor organization's 
name and designation number; (ii) the file number assigned the 
organization by the Office of Labor-Management Standards; (iii) the 
local labor organization's mailing address; (iv) the beginning and 
ending date of the reporting period; and (v) the names and titles of the 
president and treasurer or corresponding principal officers of the local 
labor organization as of [the ending date of the national organization's 
fiscal year].
    Furthermore, we certify that the terminal reports required by 29 CFR 
403.4(b)(5) and 29 CFR 403.5(a) have been filed for any local labor 
organizations which have lost their identity through merger, 
consolidation, or otherwise on whose behalf a simplified annual report 
was filed for the last reporting period.

                (Format for Simplified Annual Reporting)

                        simplified annual report

Affiliation name:
________________________________________________________________________
Designation name and number:
________________________________________________________________________
Unit name:
________________________________________________________________________
Mailing address:
________________________________________________________________________
Name of person:
________________________________________________________________________
Number and street:
________________________________________________________________________
City, State and zip:
________________________________________________________________________
File number:
________________________________________________________________________
Period covered:
________________________________________________________________________
From Through
________________________________________________________________________
Names and Titles of president and treasurer or corresponding principal 
officers
________________________________________________________________________
    For certification see NHQ file folder file number:
President_______________________________________________________________
Where signed____________________________________________________________
Date____________________________________________________________________
Treasurer_______________________________________________________________
Where signed____________________________________________________________

[[Page 147]]

Date____________________________________________________________________

[28 FR 14383, Dec. 27, 1963, as amended at 37 FR 10669, May 26, 1972; 41 
FR 27318, July 2, 1976; 45 FR 7525, Feb. 1, 1980; 50 FR 31309, Aug. 1, 
1985; 50 FR 31310, Aug. 1, 1985; 57 FR 49290, 49357, Oct. 30, 1992; 62 
FR 6092, Feb. 10, 1997; 64 FR 71623, Dec. 21, 1999; 65 FR 21141, Apr. 
20, 2000]



Sec. 403.5  Terminal financial report.

    (a) Any labor organization required to file a report under the 
provisions of this part, which during its fiscal year loses its identity 
as a reporting labor organization through merger, consolidation, or 
otherwise, shall, within 30 days after such loss, file a terminal 
financial report with the Office of Labor-Management Standards, on Form 
LM-2, LM-3, or LM-4, as may be appropriate, signed by the president and 
treasurer or corresponding principal officers of the labor organization 
immediately prior to the time of its loss of reporting identity.
    (b) Every labor organization which has assumed trusteeship over a 
subordinate labor organization shall file within 90 days after the 
termination of such trusteeship on behalf of the subordinate labor 
organization a terminal financial report with the Office of Labor-
Management Standards, on Form LM-2 and in conformance with the 
requirements of this part.
    (c) For purposes of the reports required by paragraphs (a) and (b) 
of this section, the period covered thereby shall be the portion of the 
labor organization's fiscal year ending on the effective date of its 
loss of reporting identity, or the portion of the subordinate labor 
organization's fiscal year ending on the effective date of the 
termination of trusteeship over such subordinate labor organization, as 
the case may be.
    (d) If a trust in which a labor organization with $250,000 or more 
in annual receipts is interested loses its identity through merger, 
consolidation, or otherwise, the labor organization shall, within 30 
days after such loss, file a terminal report on Form T-1, with the 
Office of Labor-Management Standards, signed by the president and 
treasurer or corresponding principal officers of the labor organization. 
For purposes of the report required by this paragraph, the period 
covered thereby shall be the portion of the trust's fiscal year ending 
on the effective date of the loss of its reporting identity.

[28 FR 14383, Dec. 27, 1963, as amended at 50 FR 31309, 31310, Aug. 1, 
1985; 62 FR 6092, Feb. 10, 1997; 68 FR 58447, Oct. 9, 2003]



Sec. 403.6  Personal responsibility of signatories of reports.

    Each individual required to sign a report under section 201(b) of 
the Act and under this part shall be personally responsible for the 
filing of such report and for any statement contained therein which he 
knows to be false.



Sec. 403.7  Maintenance and retention of records.

    Every person required to file any report under this part shall 
maintain records on the matters required to be reported which will 
provide in sufficient detail the necessary basic information and data 
from which the documents filed with the Office of Labor-Management 
Standards may be verified, explained or clarified, and checked for 
accuracy and completeness, and shall include vouchers, worksheets, 
receipts, and applicable resolutions, and shall keep such records 
available for examination for a period of not less than five years after 
the filing of the documents based on the information which they contain.



Sec. 403.8  Dissemination and verification of reports.

    (a) Every labor organization required to submit a report under 
section 201(b) of the Act and under this part shall make available to 
all its members the information required to be contained in such 
reports, and every such labor organization and its officers shall be 
under a duty to permit such member for just cause to examine any books, 
records, and accounts necessary to verify such report.
    (b)(1) If a labor organization is required to file a report under 
this part using the Form LM-2 and indicates that it has failed or 
refused to disclose information required by the Form concerning any 
disbursement, or receipt not otherwise reported on Statement B, to an 
individual or entity in the amount of $5,000 or more, or any two or more 
disbursements, or receipts not

[[Page 148]]

otherwise reported on Statement B, to an individual or entity that, in 
the aggregate, amount to $5,000 or more, because disclosure of such 
information may be adverse to the organization's legitimate interests, 
then the failure or refusal to disclose the information shall be deemed 
``just cause'' for purposes of paragraph (a) of this section.
    (2) Disclosure may be adverse to a labor organization's legitimate 
interests under this paragraph if disclosure would reveal confidential 
information concerning the organization's organizing or negotiating 
strategy or individuals paid by the labor organization to work in a non-
union facility in order to assist the labor organization in organizing 
employees, provided that such individuals are not employees of the labor 
organization who receive more than $10,000 in the aggregate in the 
reporting year from the union.
    (3) This provision does not apply to disclosure that is otherwise 
prohibited by law or that would endanger the health or safety of an 
individual.
    (c) In all other cases, a union member has the burden of 
establishing ``just cause'' for purposes of paragraph (a) of this 
section.

[28 FR 14383, Dec. 27, 1963, as amended at 68 FR 58447, Oct. 9, 2003]



Sec. 403.9  Attorney-client communications exempted.

    Nothing contained in this part shall be construed to require an 
attorney who is a member in good standing of the bar of any State, to 
include in any report required to be filed pursuant to the provisions of 
section 201(b) of the Act, and of this part, any information which was 
lawfully communicated to such attorney by any of his clients in the 
course of a legitimate attorney-client relationship.



Sec. 403.10  Publication of reports required by this part.

    Inspection and examination of any report or other document filed as 
required by this part, and the furnishing by the Office of Labor-
Management Standards of copies thereof to any person requesting them, 
shall be governed by part 70 of this title.

[35 FR 2990, Feb. 13, 1970]



Sec. 403.11  OMB control number.

    The collecting of information requirements in this part have been 
approved by the Office of Management and Budget and assigned OMB control 
number 1215-0188.

[59 FR 15115, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]



PART 404_LABOR ORGANIZATION OFFICER AND EMPLOYEE REPORTS--Table of Contents




Sec.
404.1 Definitions.
404.2 Annual report.
404.3 Form of annual report.
404.4 Special report.
404.5 Attorney-client communications exempted.
404.6 Personal responsibility of signatories of reports.
404.7 Maintenance and retention of records.
404.8 Publication of reports required by this part.
404.9 OMB control number.

    Authority: Secs. 202, 207, 208, 73 Stat. 525, 529 (29 U.S.C. 432, 
437, 438); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 28 FR 14384, Dec. 27, 1963, unless otherwise noted.



Sec. 404.1  Definitions.

    As used in this part the term:
    (a)(1) Fiscal year means the calendar year or other period of 12 
consecutive calendar months, on the basis of which financial accounts of 
the labor organization officer or employee are kept. Where a labor 
organization officer or employee designates a new fiscal year period 
prior to the expiration of a previously established fiscal year period, 
the resultant period of less than 12 consecutive calendar months, and 
thereafter the newly established fiscal year, shall in that order 
constitute the fiscal year for purposes of the reports required to be 
filed by section 202(a) of the Act and the regulations in this part.
    (2) A labor organization officer or employee who is subject to 
section 202(a) of the Act for only a portion of his fiscal year because 
the labor organization officer or employee first becomes subject to the 
Act during such fiscal year, may consider such portion as the entire 
fiscal year in making this report under this part.

[[Page 149]]

    (b) Labor organization officer means any constitutional officer, any 
person authorized to perform the functions of president, vice president, 
secretary, treasurer, or other executive functions of a labor 
organization, and any member of its executive board or similar governing 
body.
    (c) Labor organization employee means any individual (other than an 
individual performing exclusively custodial or clerical services) 
employed by a labor organization.
    (d) Employer means any employer or any group or association of 
employers engaged in an industry affecting commerce (1) which is, with 
respect to employees engaged in an industry affecting commerce, an 
employer within the meaning of any law of the United States relating to 
the employment of any employees or (2) which may deal with any labor 
organization concerning grievances, labor disputes, wages, rates of pay, 
hours of employment, or conditions of work, and includes any person 
acting directly or indirectly as an employer or as an agent of an 
employer in relation to an employee but does not include the United 
States or any corporation wholly owned by the Government of the United 
States or any State or political subdivision thereof.

[28 FR 14384, Dec. 27, 1963, as amended at 50 FR 31310, Aug. 1, 1985]



Sec. 404.2  Annual report.

    Every labor organization officer and employee who in any fiscal year 
has been involved in transactions of the type described in section 
202(a) of the Act, or who holds or has held any interest in an employer 
or a business of the type referred to therein, or who has received any 
payments of the type referred to in that section, or who holds or has 
held an interest in or derived income or economic benefit with monetary 
value from a business any part of which consists of dealing with a trust 
in which his labor organization is interested, or whose spouse or minor 
child has been involved in such transactions, holds or has held any such 
interests, or has received such payments, is required to file with the 
Office of Labor-Management Standards, within 90 days after the end of 
his fiscal year, a signed report containing the detailed information 
required therein by section 202(a) of the Act, and found by the 
Assistant Secretary under section 208 thereof to be necessary in such 
report.

[28 FR 14384, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]



Sec. 404.3  Form of annual report.

    On and after the effective date of this section, every labor 
organization officer and employee required to file an annual report 
under Sec. 404.2 shall file such report on United States Department of 
Labor Form LM-30 entitled ``Labor Organization Officer and Employee 
Report,'' together with a true copy thereof, in the detail required by 
the instructions accompanying such form and constituting a part thereof.



Sec. 404.4  Special report.

    In addition to the report on Form LM-30, the Office of Labor-
Management Standards may require from union officers and employees 
subject to the Act the submission of special reports of pertinent 
information including, but not necessarily confined to, reports with 
respect to matters referred to in items (ii) and (iv) of the 
Instructions relating to part A of the form and items (ii) and (iii) of 
the Instructions relating to part C of the form.



Sec. 404.5  Attorney-client communications exempted.

    Nothing contained in this part shall be construed to require an 
attorney who is a member in good standing of the bar of any State, to 
include in any report required to be filed pursuant to the provisions of 
section 202(a) of the Act and of this part any information which was 
lawfully communicated to such attorney by any of his clients in the 
course of a legitimate attorney-client relationship.



Sec. 404.6  Personal responsibility of signatories of reports.

    Every labor organization officer or employee required to file a 
report under section 202(a) of the Act and under this part shall be 
personally responsible for the filing of such report and for any 
statement contained therein which he knows to be false.

[[Page 150]]



Sec. 404.7  Maintenance and retention of records.

    Every person required to file any report under this part shall 
maintain records on the matters required to be reported which will 
provide in sufficient detail the necessary basic information and data 
from which the documents filed with the Office of Labor-Management 
Standards may be verified, explained or clarified, and checked for 
accuracy and completeness, and shall include vouchers, worksheets, 
receipts, and applicable resolutions, and shall keep such records 
available for examination for a period of not less than five years after 
the filing of the documents based on the information which they contain.



Sec. 404.8  Publication of reports required by this part.

    Inspection and examination of any report or other document filed as 
required by this part, and the furnishing by the Office of Labor-
Management Standards of copies thereof to any person requesting them, 
shall be governed by part 70 of this title.

[35 FR 2990, Feb. 13, 1970]



Sec. 404.9  OMB control number.

    The collecting of information requirements in this part have been 
approved by the Office of Management and Budget and assigned OMB control 
number 1215-0188.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]



PART 405_EMPLOYER REPORTS--Table of Contents




Sec.
405.1 Definitions.
405.2 Annual report.
405.3 Form of annual report.
405.4 Terminal report.
405.5 Special reports.
405.6 Exceptions from the filing requirements of Sec. 405.2.
405.7 Relation of section 8(c) of the National Labor Relations Act, as 
          amended, to the reporting requirements of Sec. 405.2.
405.8 Personal responsibility of signatories of reports.
405.9 Maintenance and retention of records.
405.10 Publication of reports required by this part.
405.11 OMB control number.

    Authority: Secs. 203, 207, 208, 73 Stat. 526, 529 (29 U.S.C. 433, 
437, 438); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 28 FR 14384, Dec. 27, 1963, unless otherwise noted.



Sec. 405.1  Definitions.

    As used in this part the term:
    (a) Fiscal year means the calendar year or other period of 12 
consecutive calendar months, on the basis of which financial accounts 
are kept by an employer. Where an employer designates a new fiscal year 
period prior to the expiration of a previously established fiscal year 
period, the resultant period of less than 12 consecutive calendar 
months, and thereafter the newly established fiscal year, shall in that 
order constitute the fiscal year for purposes of the reports required to 
be filed by section 203(a) of the Act and of the regulations in this 
part.
    (b) Corresponding principal officers shall include any person or 
persons performing or authorized to perform principal executive 
functions corresponding to those of president and treasurer, of any 
employer engaged in whole or in part in the performance of the 
activities described in section 203(a) of the Act.

[28 FR 14384, Dec. 27, 1963, as amended at 42 FR 59070, Nov. 15, 1977]



Sec. 405.2  Annual report.

    Every employer who in any fiscal year has made any payment, loan, 
promise, agreement, arrangement or expenditure of the kind described and 
required by section 203(a) of the Act to be reported, shall, as 
prescribed by the regulations in this part, file with the Office of 
Labor-Management Standards, within 90 days after the end of each of its 
fiscal years, a report signed by its president and treasurer, or 
corresponding principal officers, together with a true copy thereof, 
containing the detailed information required therein by section 203(a) 
of the Act and found by the Assistant Secretary under section 208 
thereof to be necessary in such report.

[28 FR 14384, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

[[Page 151]]



Sec. 405.3  Form of annual report.

    On and after the effective date of this section, every employer 
required to file an annual report by section 203(a) of the Act and Sec. 
405.2 shall file such report on the United States Department of Labor 
Form LM-10 entitled, ``Employer Report'' \1\ in the detail required by 
the instructions \1\ accompanying such form and constituting a part 
thereof.
---------------------------------------------------------------------------

    \1\ Filed as part of the original document.

[28 FR 14384, Dec. 27, 1963, as amended at 38 FR 10715, May 1, 1973; 42 
FR 59070, Nov. 15, 1977]



Sec. 405.4  Terminal report.

    (a) Every employer required to file a report under the provisions of 
this part, who during its fiscal year loses its identity as a reporting 
employer through merger, consolidation, dissolution, or otherwise, 
shall, within 30 days of the effective date thereof, file a terminal 
employer report, and one copy, with the Office of Labor-Management 
Standards on Form LM-10 signed by the president and treasurer or 
corresponding principal officers of such employer immediately prior to 
the time of the employer's loss of reporting identity, together with a 
statement of the effective date of such termination or loss of reporting 
identity, and if the latter, the name and mailing address of the 
employer entity into which it has been merged, consolidated or otherwise 
absorbed.
    (b) For purposes of the report required by paragraph (a) of this 
section, the period covered thereby shall be the portion of the 
employer's fiscal year ending on the effective date of the employer's 
termination or loss of reporting identity.



Sec. 405.5  Special reports.

    In addition to the report on Form LM-10, the Office of Labor-
Management Standards may require from employers subject to the Act the 
submission of special reports on pertinent information, including but 
not necessarily confined to reports with respect to specifically 
identified personnel on the matters referred to in the second paragraph 
under the instructions for Question 8A of Form LM-10.

[42 FR 59070, Nov. 15, 1977]



Sec. 405.6  Exceptions from the filing requirements of Sec. 405.2.

    Nothing contained in this part shall be construed to require:
    (a) An employer to file a report unless said employer has made an 
expenditure, payment, loan, agreement, or arrangement of the kind 
described in section 203(a) of the Act;
    (b) Any employer to file a report covering the services of any 
person by reason of his (1) giving or agreeing to give advice to such 
employer or (2) representing or agreeing to represent such employer 
before any court, administrative agency, or tribunal of arbitration or 
(3) engaging or agreeing to engage in collective bargaining on behalf of 
such employer with respect to wages, hours, or other terms or conditions 
of employment or the negotiation of an agreement or any question arising 
thereunder;
    (c) Any employer to file a report covering expenditures made to any 
regular officer, supervisor, or employee of an employer as compensation 
for service as a regular officer, supervisor, or employee of such 
employer;
    (d) An attorney who is a member in good standing of the bar of any 
State, to include in any report required to be filed pursuant to the 
provisions of this part any information which was lawfully communicated 
to such attorney by any of his clients in the course of a legitimate 
attorney-client relationship.



Sec. 405.7  Relation of section 8(c) of the National Labor Relations Act, 
as amended, to the reporting requirements of Sec. 405.2.

    While nothing contained in section 203 of the Act shall be construed 
as an amendment to, or modification of the rights protected by section 
8(c) of the National Labor Relations Act, as amended, activities 
protected by such section of the said Act are not for that reason 
exempted from the reporting requirements of section 203(a) of the Labor-
Management Reporting and Disclosure Act of 1959 and Sec. 405.2, and, if

[[Page 152]]

otherwise subject to such reporting requirements, are required to be 
reported if they have been engaged in during the course of the reporting 
fiscal year. However, the information required to be reported in 
Question 8C of Form LM-10 does not include matters protected by section 
8(c) of the National Labor Relations Act, as amended, because the 
definition in section 203(g) of the term ``interfere with, restrain, or 
coerce'', which is used in Question 8C does not cover such matters.

[42 FR 59070, Nov. 15, 1977]



Sec. 405.8  Personal responsibility of signatories of reports.

    Each individual required to sign a report under section 203(a) of 
the Act and under this part shall be personally responsible for the 
filing of such report and for any statement contained therein which he 
knows to be false.



Sec. 405.9  Maintenance and retention of records.

    Every person required to file any report under this part shall 
maintain records on the matters required to be reported which will 
provide in sufficient detail the necessary basic information and data 
from which the documents filed with the Office of Labor-Management 
Standards may be verified, explained or clarified, and checked for 
accuracy and completeness, and shall include vouchers, worksheets, 
receipts, and applicable resolutions, and shall keep such records 
available for examination for a period of not less than five years after 
the filing of the documents based on the information which they contain.



Sec. 405.10  Publication of reports required by this part.

    Inspection and examination of any report or other document filed as 
required by this part, and the furnishing by the Office of Labor-
Management Standards of copies thereof to any person requesting them, 
shall be governed by part 70 of this title.

[35 FR 2990, Feb. 13, 1970]



Sec. 405.11  OMB control number.

    The collecting of information requirements in this part have been 
approved by the Office of Management and Budget and assigned OMB control 
number 1215-0188.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]



PART 406_REPORTING BY LABOR RELATIONS CONSULTANTS AND OTHER PERSONS, 
CERTAIN AGREEMENTS WITH EMPLOYERS--Table of Contents




Sec.
406.1 Definitions.
406.2 Agreement and activities report.
406.3 Receipts and disbursements report.
406.4 Terminal report.
406.5 Persons excepted from filing reports.
406.6 Relation of section 8(c) of the National Labor Relations Act to 
          this part.
406.7 Personal responsibility of signatories of reports.
406.8 Maintenance and retention of records.
406.9 Publication of reports required by this part.
406.10 OMB control number.

    Authority: Secs. 203, 207, 208, 73 Stat. 526, 529 (29 U.S.C. 433, 
437, 438); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 28 FR 14385, Dec. 27, 1963, unless otherwise noted.



Sec. 406.1  Definitions.

    As used in this part, the term:
    (a) Corresponding principal officers means any person or persons 
performing or authorized to perform, principal executive functions 
corresponding to those of president and treasurer of any entity engaged 
in whole or in part in the performance of the activities described in 
section 203(b) of the Labor-Management Reporting and Disclosure Act of 
1959.
    (b) Fiscal year means the calendar year or other period of 12 
consecutive calendar months, on the basis of which financial accounts 
are kept by a person. Where a person designates a new fiscal year prior 
to the expiration of a previously established fiscal year period, the 
resultant period of less than 12 consecutive calendar months, and 
thereafter the newly established fiscal year, shall in that order 
constitute the fiscal years.
    (c) Undertake means not only the performing of activities, but also 
the agreeing to perform them or to have them performed.

[[Page 153]]

    (d) A direct or indirect party to an agreement or arrangement 
includes persons who have secured the services of another or of others 
in connection with an agreement or arrangement of the type referred to 
in Sec. 406.2 as well as persons who have undertaken activities at the 
behest of another or of others with knowledge or reason to believe that 
they are undertaken as a result of an agreement or arrangement between 
an employer and any other person, except bona fide regular officers, 
supervisors or employees of their employer to the extent to which they 
undertook to perform services as such bona fide regular officers, 
supervisors or employees of their employer.

[28 FR 14385, Dec. 27, 1963, as amended at 42 FR 59070, Nov. 15, 1977; 
63 FR 33779, June 19, 1998]



Sec. 406.2  Agreement and activities report.

    (a) Every person who as a direct or indirect party to any agreement 
or arrangement with an employer undertakes, pursuant to such agreement 
or arrangement, any activities where an object thereof is, directly or 
indirectly, (1) to persuade employees to exercise or not to exercise, or 
to persuade employees as to the manner of exercising, the right to 
organize and bargain collectively through representatives of their own 
choosing; or, (2) to supply an employer with information concerning the 
activities of employees or a labor organization in connection with a 
labor dispute involving such employer, except information for use solely 
in conjunction with an administrative or arbitral proceeding or a 
criminal or civil judicial proceeding; shall, as prescribed by the 
regulations in this part, file a report with the Office of Labor-
Management Standards, and one copy thereof, on Form LM-20 \1\ entitled 
``Agreement and Activities Report (required of persons, including labor 
relations consultants and other individuals and organizations)'' in the 
detail required by such form and the instructions accompanying such form 
and constituting a part thereof. The report shall be filed within 30 
days after entering into an agreement or arrangement of the type 
described in this section. If there is any change in the information 
reported (other than that required by Item C, 10, (c) of the Form), it 
must be filed in a report clearly marked ``Amended Report'' within 30 
days of the change.
---------------------------------------------------------------------------

    \1\ Filed as part of the original document.
---------------------------------------------------------------------------

    (b) The report shall be signed by the president and treasurer or 
corresponding principal officers of the reporting person. If the report 
is filed by an individual in his own behalf, it need only bear his 
signature.

[28 FR 14385, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]



Sec. 406.3  Receipts and disbursements report.

    (a) Every person who, as a direct or indirect party to any agreement 
or arrangement, undertakes any activities of the type described in Sec. 
406.2 pursuant to such agreement or arrangement and who, as a result of 
such agreement or arrangement made or received any payment during his 
fiscal year, shall, as prescribed by the regulations in this part, file 
a report and one copy thereof, with the Office of Labor-Management 
Standards, on Form LM-21 \1\ entitled ``Receipts and Disbursements 
Report (required of persons, including labor relations consultants, 
other individuals and organizations)'', in the detail required by such 
form and the instructions accompanying such form and constituting a part 
thereof. The report shall be filed within 90 days after the end of such 
person's fiscal year during which payments were made or received as a 
result of such an agreement or arrangement.
    (b) The report shall be signed by the president and treasurer or 
corresponding principal officers of the reporting person. If the report 
is filed by an individual in his own behalf, it need only bear his 
signature.

[28 FR 14385, Dec. 27, 1963, as amended at 50 FR 31310, Aug. 1, 1985]



Sec. 406.4  Terminal report.

    (a) Every person required to file a report pursuant to the 
provisions of this part who during his fiscal year loses his identity as 
a reporting entity through merger, consolidation, dissolution, or 
otherwise shall within 30 days

[[Page 154]]

of the effective date thereof or of the effective date of this section, 
whichever is later, file a terminal report, and one copy thereof, with 
the Office of Labor-Management Standards, on Form LM-21 signed by the 
president and treasurer or corresponding principal officers immediately 
prior to the time of the person's loss of reporting identity (or by the 
person himself if he is an individual), together with a statement of the 
effective date of termination or loss of reporting identity, and if the 
latter, the name and mailing address of the entity into which the person 
reporting has been merged, consolidated or otherwise absorbed.
    (b) For purposes of the report referred to in paragraph (a) of this 
section, the period covered thereby shall be the portion of the 
reporting person's fiscal year ending on the effective date of the 
termination or loss of identity.

[28 FR 14385, Dec. 27, 1963, as amended at 50 FR 31310, Aug. 1, 1985]



Sec. 406.5  Persons excepted from filing reports.

    Nothing contained in this part shall be construed to require:
    (a) Any person to file a report under this part unless he was a 
direct or indirect party to an agreement or arrangement of the kind 
described in Sec. 406.2;
    (b) Any person to file a report covering the services of such person 
by reason of his (1) giving or agreeing to give advice to an employer; 
or (2) representing or agreeing to represent an employer before any 
court, administrative agency, or tribunal of arbitration; or (3) 
engaging or agreeing to engage in collective bargaining on behalf of an 
employer with respect to wages, hours, or other terms or conditions of 
employment or the negotiation of an agreement or any question arising 
thereunder;
    (c) Any regular officer, or employee of an employer to file a report 
in connection with services rendered as such regular officer, supervisor 
or employee to such employer;
    (d) An attorney who is a member in good standing of the bar of any 
State, to include in any report required to be filed pursuant to the 
provisions of this part any information which was lawfully communicated 
to such attorney by any of his clients in the course of a legitimate 
attorney-client relationship.



Sec. 406.6  Relation of section 8(c) of the National Labor Relations Act 
to this part.

    While nothing contained in section 203 of the Act shall be construed 
as an amendment to, or modification of the rights protected by, section 
8(c) of the National Labor Relations Act, as amended (61 Stat. 142; 29 
U.S.C. 158 (c)), activities protected by such section of the said Act 
are not for that reason exempted from the reporting requirements of this 
part and, if otherwise subject to such reporting requirements, are 
required to be reported. Consequently, information required to be 
included in Forms LM-20 and 21 must be reported regardless of whether 
that information relates to activities which are protected by section 
8(c) of the National Labor Relations Act, as amended.



Sec. 406.7  Personal responsibility of signatories of reports.

    Each individual required to file a report under this part shall be 
personally responsible for the filing of such report and for any 
statement contained therein which he knows to be false.



Sec. 406.8  Maintenance and retention of records.

    Every person required to file any report under this part shall 
maintain records on the matters required to be reported which will 
provide in sufficient detail the necessary basic information and data 
from which the documents filed with the Office of Labor-Management 
Standards may be verified, explained or clarified, and checked for 
accuracy and completeness, and shall include vouchers, worksheets, 
receipts and applicable resolutions, and shall keep such records 
available for examination for a period of not less than five years after 
the filing of the documents based on the information which they contain.

[[Page 155]]



Sec. 406.9  Publication of reports required by this part.

    Inspection and examination of any report or other document filed as 
required by this part, and the furnishing by the Office of Labor-
Management Standards of copies thereof to any person requesting them, 
shall be governed by part 70 of this title.

[35 FR 2990, Feb. 13, 1970]



Sec. 406.10  OMB control number.

    The collecting of information requirements in this part have been 
approved by the Office of Management and Budget and assigned OMB control 
number 1215-0188.

[59 FR 15116, Mar. 31, 1994 as amended at 63 FR 46888, Sept. 3, 1998]



PART 408_LABOR ORGANIZATION TRUSTEESHIP REPORTS--Table of Contents




Sec.
408.1 Definitions.
408.2 Initial trusteeship report.
408.3 Form of initial report.
408.4 Semiannual trusteeship report.
408.5 Annual financial report.
408.6 Amendments to the Labor Organization Information Report filed by 
          or on behalf of the subordinate labor organization.
408.7 Terminal trusteeship financial report.
408.8 Terminal trusteeship information report.
408.9 Personal responsibility of signatories of reports.
408.10 Maintenance and retention of records.
408.11 Dissemination and verification of reports.
408.12 Publication of reports required by this part.
408.13 OMB control number.

    Authority: Secs. 202, 207, 208, 73 Stat. 525, 529 (29 U.S.C. 432, 
437, 438); Secretary's Order No. 4-2001, 66 FR 29656, May 31, 2001.

    Source: 28 FR 14387, Dec. 27, 1963, unless otherwise noted.



Sec. 408.1  Definitions.

    (a) Corresponding principal officers shall include any person or 
persons performing or authorized to perform principal executive 
functions corresponding to those of president and treasurer, of any 
labor organization which has assumed or imposed a trusteeship over a 
labor organization within the meaning of section 301(a) of the Labor-
Management Reporting and Disclosure Act of 1959.
    (b) Trusteeship means any receivership, trusteeship, or other method 
of supervision or control whereby a labor organization suspends the 
autonomy otherwise available to a subordinate body under its 
constitution or bylaws.
    (c) Policy determining body means any body which is convened by the 
parent labor organization or other labor organization which is composed 
of delegates from labor organizations and which formulates policy on 
such matters as wages, hours, or other conditions of employment or 
recommends or takes any action in the name of the participating labor 
organizations. Such a body includes, for example, a district council, 
area conference or joint board.



Sec. 408.2  Initial trusteeship report.

    Every labor organization which has or assumes trusteeship over any 
subordinate labor organization shall file with the Office of Labor-
Management Standards within 30 days after the imposition of any such 
trusteeship, a trusteeship report, pursuant to Sec. 408.3, together 
with a true copy thereof, signed by its president and treasurer, or 
corresponding principal officers, as well as by the trustees of such 
subordinate labor organization.

[28 FR 14387, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]



Sec. 408.3  Form of initial report.

    On and after the effective date of this section, every labor 
organization required to file an initial report under Sec. 408.2 shall 
file such report on United States Department of Labor Form LM-15 
entitled ``Trusteeship Report'' in the detail required by the 
instructions accompanying such form and constituting a part thereof.

[28 FR 14387, Dec. 27, 1963, as amended at 42 FR 59070, Nov. 15, 1977]



Sec. 408.4  Semiannual trusteeship report.

    Every labor organization required to file an initial report under 
Sec. 408.2 shall thereafter during the continuance of trusteeship over 
the subordinate labor organization, file with the said Office

[[Page 156]]

of Labor-Management Standards semiannually, and not later than six 
months after the due date of the initial trusteeship report, a 
semiannual trusteeship report on Form LM-15 containing the information 
required by that form except for the Statement of Assets and 
Liabilities. If in answer to Item 9 of Form LM-15, there was (a) a 
convention or other policy determining body to which the subordinate 
organization sent delegates or would have sent delegates if not in 
trusteeship or (b) an election of officers of the labor organization 
assuming trusteeship, Form LM-15A should be used to report the required 
information with respect thereto.

[42 FR 59070, Nov. 15, 1977]



Sec. 408.5  Annual financial report.

    During the continuance of a trusteeship, the labor organization 
which has assumed trusteeship over a subordinate labor organization, 
shall file with the Office of Labor-Management Standards on behalf of 
the subordinate labor organization the annual financial report and any 
Form T-1 reports required by part 403 of this chapter, signed by the 
president and treasurer or corresponding principal officers of the labor 
organization which has assumed such trusteeship, and the trustees of the 
subordinate labor organization on Form LM-2.

[28 FR 14387, Dec. 27, 1963, as amended at 68 FR 58448, Oct. 9, 2003]



Sec. 408.6  Amendments to the Labor Organization Information Report filed 
by or on behalf of the subordinate labor organization.

    During the continuance of a trusteeship, the labor organization 
which has assumed trusteeship over a subordinate labor organization, 
shall file with the Office of Labor-Management Standards on behalf of 
the subordinate labor organization any change in the information 
required by part 402 of this chapter in accordance with the procedure 
set out in Sec. 402.4.

[63 FR 33779, June 19, 1998]



Sec. 408.7  Terminal trusteeship financial report.

    Each labor organization which has assumed trusteeship over a 
subordinate labor organization shall file within 90 days after the 
termination of such trusteeship on behalf of the subordinate labor 
organization a terminal financial report, and one copy, with the Office 
of Labor-Management Standards, on Form LM-2 and in conformance with the 
requirements of part 403 of this chapter.



Sec. 408.8  Terminal trusteeship information report.

    There shall be filed at the same time that the terminal trusteeship 
financial report is filed a terminal trusteeship information report on 
Form LM-16. If in answer to Item 6 of Form LM-16, there was (a) a 
convention or other policy determining body to which the subordinate 
organization sent delegates or would have sent delegates if not in 
trusteeship or (b) an election of officers of the labor organization 
assuming trusteeship, Form LM-15A should be used to report the required 
information with respect thereto.

[40 FR 58856, Dec. 19, 1975]



Sec. 408.9  Personal responsibility of signatories of reports.

    Each individual required to sign a report under this part shall be 
personally responsible for the filing of such report and for any 
statement contained therein which he knows to be false.



Sec. 408.10  Maintenance and retention of records.

    Every person required to file any report under this part shall 
maintain records on the matters required to be reported which will 
provide in sufficient detail the necessary basic information and data 
from which the documents filed with the Office of Labor-Management 
Standards may be verified, explained or clarified, and checked for 
accuracy and completeness, and shall include vouchers, worksheets, 
receipts, and applicable resolutions, and shall keep such records 
available for examination for a period

[[Page 157]]

of not less than five years after the filing of the documents based on 
the information which they contain.



Sec. 408.11  Dissemination and verification of reports.

    Every labor organization required to submit a report shall make 
available the information required to be contained in such report to all 
of its members, and every such labor organization and its officers shall 
be under a duty to permit such member for just cause to examine any 
books, records, and accounts necessary to verify such report.



Sec. 408.12  Publication of reports required by this part.

    Inspection and examination of any report or other document filed as 
required by this part, and the furnishing by the Office of Labor-
Management Standards of copies thereof to any person requesting them, 
shall be governed by part 70 of this title.

[35 FR 2990, Feb. 13, 1970]



Sec. 408.13  OMB control number.

    The collecting of information requirements in this part have been 
approved by the Office of Management and Budget and assigned OMB control 
number 1215-0188.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 46888, Sept. 3, 1998]



PART 409_REPORTS BY SURETY COMPANIES--Table of Contents




Sec.
409.1 Definitions.
409.2 Annual report.
409.3 Time for filing annual report.
409.4 Personal responsibility for filing of reports.
409.5 Maintenance and retention of records.
409.6 Publication of reports required by this part.
409.7 OMB control number.

    Authority: Secs. 207, 208, 211; 79 Stat. 888; 88 Stat. 852 (29 
U.S.C. 437, 438, 441); Secretary's Order No. 5-96, 62 FR 107, January 2, 
1997.

    Source: 31 FR 11177, Aug. 24, 1966, unless otherwise noted.



Sec. 409.1  Definitions.

    As used in this part, the term:
    (a) Fiscal year means the calendar year, or other period of 12 
consecutive calendar months. Once reported on one basis, a change in the 
reporting year shall be effected only upon prior approval by the Office 
of Labor-Management Standards.
    (b) Corresponding principal officers shall include any person or 
persons performing or authorized to perform principal executive 
functions corresponding to those of president and treasurer of any 
surety underwriting a bond for which reports are required under section 
211 of the Labor-Management Reporting and Disclosure Act of 1959.



Sec. 409.2  Annual report.

    Each surety company having in force any bond required by section 502 
of the Labor-Management Reporting and Disclosure Act of 1959 or section 
412 of the Employee Retirement Income Security Act during the fiscal 
year, shall file with the Office of Labor-Management Standards a report, 
on U.S. Department of Labor Form S-1 entitled ``Surety Company Annual 
Report'' \1\ signed by the president and treasurer or corresponding 
principal officers, in the detail required by the instructions 
accompanying such form and constituting a part thereof.
---------------------------------------------------------------------------

    \1\ Filed as part of the original document.

[42 FR 59070, Nov. 15, 1977, as amended at 50 FR 31309, Aug. 1, 1985; 50 
FR 31310, Aug. 1, 1985]



Sec. 409.3  Time for filing annual report.

    Each surety company required to file an annual report by section 211 
of the Labor-Management Reporting and Disclosure Act of 1959 and Sec. 
409.2 shall file such report within 150 days after the end of the fiscal 
year. The period of 150 days within which reports must be filed is 
stipulated in lieu of the statutory period of 90 days (sec. 207(b), 73 
Stat. 529, 29 U.S.C. 437(b) as amended by 79 Stat. 888) pursuant to a 
finding under section 211 (79 Stat. 888) of the Act that information 
required to be reported cannot be practicably ascertained

[[Page 158]]

within 90 days of the end of the fiscal year.

[31 FR 11177, Aug. 24, 1966, as amended at 50 FR 31310, Aug. 1, 1985]



Sec. 409.4  Personal responsibility for filing of reports.

    Each individual required to file a report under section 211 of the 
Labor-Management Reporting and Disclosure Act of 1959, shall be 
personally responsible for the filing of such reports and for the 
accuracy of the information contained therein.



Sec. 409.5  Maintenance and retention of records.

    Each surety required to file any report under this part shall 
maintain records on the matters required to be reported which will 
provide in sufficient detail the necessary basic information and data 
from which the reports filed with the Office of Labor-Management 
Standards may be verified, explained or clarified and checked for 
accuracy and completeness, and shall keep such records available for 
examination for a period of not less than 5 years after the filing of 
the reports based on the information which they contain.



Sec. 409.6  Publication of reports required by this part.

    Part 70 of this title shall govern inspection and examination of any 
report or other document filed as required by this part, and the 
furnishing by the Office of Labor-Management Standards of copies thereof 
to any person requesting them.

[35 FR 2990, Feb. 13, 1970]



Sec. 409.7  OMB control number.

    The collecting of information requirements in this part have been 
approved by the Office of Management and Budget and assigned OMB control 
number 1215-0188.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998]



PART 417_PROCEDURE FOR REMOVAL OF LOCAL LABOR ORGANIZATION OFFICERS
--Table of Contents




                                 General

Sec.
417.1 Purpose and scope.
417.2 Definitions.

 Subpart A_Procedures To Determine Adequacy of Constitution and Bylaws 
          for Removal of Officers of Local Labor Organizations

417.3 Initiation of proceedings.
417.4 Pre-hearing conference.
417.5 Notice.
417.6 Powers of Administrative Law Judge.
417.7 Transcript.
417.8 Appearances.
417.9 Evidence; contumacious or disorderly conduct.
417.10 Rights of participants.
417.11 Objections to evidence.
417.12 Proposed findings and conclusions.
417.13 Initial decision of Administrative Law Judge.
417.14 Form and time for filing of appeal with the Assistant Secretary.
417.15 Decision of the Assistant Secretary.

Subpart B_Procedures Upon Failure of Union to Take Appropriate Remedial 
                  Action Following Subpart A Procedures

417.16 Initiation of proceedings.
417.17 Investigation of complaint and court action.
417.18 Hearings--removal of officers of local labor organizations.
417.19 Assistant Secretary's representative.
417.20 Notice of hearing.
417.21 Transcript.
417.22 Vote among members of the labor organization.
417.23 Report to the Assistant Secretary.
417.24 Appeal to the Assistant Secretary.
417.25 Certification of results of vote.

    Authority: Secs. 401, 402, 73 Stat. 533, 534 (29 U.S.C. 481, 482); 
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 29 FR 8264, July 1, 1964, unless otherwise noted.

                                 General



Sec. 417.1  Purpose and scope.

    Section 401(h) of the Labor-Management Reporting and Disclosure Act 
of 1959 (29 U.S.C. 481) provides that if, upon application of any member 
of a local labor organization, the Secretary

[[Page 159]]

of Labor finds, after hearing in accordance with the Administrative 
Procedure Act, that the constitution and bylaws of such labor 
organization do not provide an adequate procedure for the removal of an 
elected officer guilty of serious misconduct, such officer may be 
removed for cause shown and after notice and hearing, by the members in 
good standing voting in a secret ballot. Section 401(i) (29 U.S.C. 481) 
requires the Secretary to promulgate rules and regulations prescribing 
minimum standards and procedures for determining the adequacy of the 
removal procedures referred to in section 401(h). Section 402(a) (29 
U.S.C. 482) provides that a member of a labor organization who has 
exhausted the available internal remedies of such organization and of 
any parent body, or who has invoked such remedies without obtaining a 
final decision within three months, may file a complaint with the 
Secretary within one month thereafter alleging violation of section 401 
(including violation of the constitution and bylaws of the labor 
organization pertaining to the removal of officers). Section 402(b) (29 
U.S.C. 482) provides that upon suit initiated by the Secretary, a 
Federal court may direct the conduct of a hearing and vote upon the 
removal of officers under the supervision of the Secretary, and in 
accordance with such rules and regulations as the Secretary may 
prescribe. It is the purpose of this part to implement those sections by 
prescribing regulations relating to the procedures and standards for 
determining the adequacy of removal procedures and the procedures for 
holding elections for the removal of officers.



Sec. 417.2  Definitions.

    (a) Chief, DOE means the Chief of the Division of Enforcement within 
the Office of Labor-Management Standards, Employment Standards 
Administration.
    (b) Adequate procedure shall mean any procedure which affords 
reasonable and equitable opportunity for (1) trial of an officer(s) 
charged with serious misconduct, and (2) removal of such an officer(s) 
if found guilty, and which contains the elements set forth in each of 
the subparagraphs of this paragraph: Provided, however, That any other 
procedure which provides otherwise reasonable and equitable measures for 
removal from office may also be considered adequate:
    (1) A reasonable opportunity is afforded for filing charges of 
serious misconduct against any elected officer(s) without being subject 
to retaliatory threats, coercion, or acts of intimidation.
    (2) The charges of serious misconduct are communicated to the 
accused officer(s), and reasonable notice is given the members of the 
organization, reasonably in advance of the time for hearing thereon.
    (3) Subject to reasonable restrictions, a fair and open hearing upon 
such charges is held after adequate notice and adequate opportunity is 
afforded for testimony or the submission of evidence in support of or in 
opposition to such charges. Within a reasonable time following such 
hearing, a decision is reached as to the guilt or innocence of the 
accused.
    (4) If the hearing upon such charges is held before a trial 
committee or other duly authorized body, reasonable notice of such 
body's findings is given to the membership of the organization promptly.
    (5) If such accused officer(s) is found guilty, he may be removed by 
a procedure which includes:
    (i) A secret ballot vote of the members at an appropriately called 
meeting, or
    (ii) A vote of a trial committee or other duly authorized body, 
subject to appeal and review by the members voting by a secret ballot at 
an appropriately called meeting.
    (6) Within a reasonable time after the charges of serious misconduct 
are filed with the labor organization final disposition (including 
appellate procedures) is made of the charges.
    (c) Elected officer means any constitutional officer, any person 
authorized to perform the functions of president, vice-president, 
secretary, treasurer, or other executive functions of a labor 
organization, and any member of its executive board or similar governing 
body.
    (d) Cause shown means substantial evidence of serious misconduct.

[[Page 160]]

    (e) Interested person means any person or organization whose 
interests are or may be affected by a proceeding.
    (f) Court means the district court of the United States in the 
district in which the labor organization in question maintains its 
principal office.

[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964; 29 FR 
9537, July 14, 1964; 50 FR 31310, Aug. 1, 1985; 62 FR 6093, Feb. 10, 
1997; 63 FR 33779, June 19, 1998]



 Subpart A_Procedures To Determine Adequacy of Constitution and Bylaws 
          for Removal of Officers of Local Labor Organizations



Sec. 417.3  Initiation of proceedings.

    (a) Any member of a local labor organization who has reason to 
believe that:
    (1) An elected officer(s) of such organization has been guilty of 
serious misconduct, and
    (2) The constitution and bylaws of his organization do not provide 
an adequate procedure for the removal of such officer(s), may file with 
the Office of Labor-Management Standards a written application, which 
may be in the form of a letter, for initiation of proceedings under 
section 401(h) of the Act.
    (b) An application filed under paragraph (a) of this section shall 
set forth the facts upon which it is based including a statement of the 
basis for the charge that an elected officer(s) is guilty of serious 
misconduct; and shall contain:
    (1) Information identifying the labor organization and the officer 
or officers involved, and
    (2) Any data such member desires the Office of Labor-Management 
Standards to consider in connection with his application.



Sec. 417.4  Pre-hearing conference.

    (a) Upon receipt of an application filed under Sec. 417.3, the 
Chief, DOE shall cause an investigation to be conducted of the 
allegations contained therein, and if he finds probable cause to believe 
that the constitution and bylaws of the labor organization do not 
provide an adequate procedure for the removal of an elected officer(s) 
guilty of serious misconduct he shall:
    (1) Advise the labor organization of his findings and
    (2) Afford such labor organization the opportunity for a conference 
to be set not earlier than 10 days thereafter except where all 
interested persons elect to confer at an earlier time. Any such 
conference shall be conducted for the purpose of hearing the views of 
interested persons and attempting to achieve a settlement of the issue 
without formal proceedings.
    (b)(1) If:
    (i) The labor organization declines the opportunity to confer 
afforded under paragraph (a) of this section, and fails to undertake 
compliance with the provisions of section 401(h) of the Act, or if
    (ii) After consideration of any views presented by the labor 
organization the Chief, DOE still finds probable cause to believe that 
the removal procedures are not adequate and if agreement for the 
adoption of adequate procedures for removal has not been achieved and 
the labor organization refuses to enter into a stipulation to comply 
with the provisions of section 401(h) of the Act, the Chief, DOE shall 
submit his findings and recommendations to the Assistant Secretary.
    (2) Upon consideration of the Chief, DOE's recommendations, the 
Assistant Secretary may order a hearing to be conducted before an 
Administrative Law Judge duly assigned by him to receive evidence and 
arguments (i) on the applicability of section 401(h) of the Act to the 
labor organization involved, and (ii) on the question of whether its 
constitution and bylaws provide an adequate procedure for the removal of 
an elected union officer guilty of serious misconduct.

[29 FR 8264, July 1, 1964, as amended at 50 FR 31310, Aug. 1, 1985; 62 
FR 6093, Feb. 10, 1997]



Sec. 417.5  Notice.

    Notice of hearing shall be given not less than 10 days before such 
hearing is held unless the parties agree to a shorter notice period. 
Such notice shall be transmitted to the labor organization and the 
officer(s) accused of misconduct and other interested persons,

[[Page 161]]

insofar as they are known, and shall inform them of:
    (a) The time, place, and nature of the hearings;
    (b) The legal authority and jurisdiction under which the hearing is 
to be held; and
    (c) The matters of fact and law asserted.

The Labor organization shall inform its members of the provisions of the 
notice and copies of the notice shall be made available for inspection 
at the offices of the labor organization.



Sec. 417.6  Powers of Administrative Law Judge.

    The designated Administrative Law Judge shall have authority:
    (a) To give notice concerning and to conduct hearings;
    (b) To administer oaths and affirmations;
    (c) To issue subpoenas;
    (d) To rule upon offers of proof and receive relevant evidence;
    (e) To take or cause depositions to be taken whenever the ends of 
justice would be served thereby;
    (f) To regulate the course of the hearing;
    (g) To hold conferences for the settlement or simplification of the 
issues by consent of the parties;
    (h) To dispose of procedural requests or other matters;
    (i) To limit the number of witnesses at hearings, or limit or 
exclude evidence or testimony which may be irrelevant, immaterial, or 
cumulative;
    (j) If appropriate or necessary to exclude persons or counsel from 
participation in hearings for refusing any proper request for 
information or documentary evidence, or for contumacious conduct;
    (k) To grant continuances or reschedule hearings for good cause 
shown;
    (l) To consider and decide procedural matters;
    (m) To take any other actions authorized by the regulations in this 
part.

The Administrative Law Judge's authority in the case shall terminate 
upon his filing of the record and his initial decision with the 
Assistant Secretary, or when he shall have withdrawn from the case upon 
considering himself disqualified, or upon termination of his authority 
by the Assistant Secretary for good cause stated. However, the 
Administrative Law Judge's authority may be reinstated upon referral of 
some or all the issues by the Assistant Secretary for rehearing. This 
authority will terminate upon certification of the rehearing record to 
the Assistant Secretary.



Sec. 417.7  Transcript.

    An official reporter shall make the only official transcript of the 
proceedings. Copies of the official transcript shall be made available 
upon request addressed to the Assistant Secretary in accordance with the 
provisions of part 70 of this title.

[50 FR 31310, Aug. 1, 1985, as amended at 63 FR 33779, June 19, 1998]



Sec. 417.8  Appearances.

    The Department of Labor does not maintain a register of persons or 
attorneys who may participate at hearings. Any interested person may 
appear and be heard in person or be represented by counsel.



Sec. 417.9  Evidence; contumacious or disorderly conduct.

    (a) Formal rules of evidence or procedure in use in courts of law or 
equity shall not obtain. Rules of evidence are to be within the 
discretion of the Administrative Law Judge. However, it shall be the 
policy to exclude testimony or matter which is irrelevant, immaterial, 
or unduly repetitious.
    (b) Contumacious or disorderly conduct at a hearing may be ground 
for exclusion therefrom. The refusal of a witness at any hearing to 
answer any questions which have been ruled to be proper shall, in the 
discretion of the Administrative Law Judge be ground for striking all 
testimony previously given by such witness on related matter.
    (c) At any stage of the hearing the Administrative Law Judge may 
call for further evidence or testimony on any matter. After the hearing 
has been closed, no further information shall be received on any matter, 
except where provision shall have been made for it at

[[Page 162]]

the hearing, or except as the Administrative Law Judge or Assistant 
Secretary may direct by reopening the hearing.

[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964]



Sec. 417.10  Rights of participants.

    Every interested person shall have the right to present oral or 
documentary evidence, to submit evidence in rebuttal, and to conduct 
such examination or cross-examination as may be required for a full and 
true disclosure of the facts (subject to the rulings of the 
Administrative Law Judge), and to object to admissions or exclusions of 
evidence. The Department of Labor, through its officers and attorneys 
shall have all rights accorded interested persons by the provisions of 
this subpart A.



Sec. 417.11  Objections to evidence.

    Objections to the admission or exclusion of evidence may be made 
orally or in writing, but shall be in short form, stating the grounds 
for such objection. The transcript shall not include argument or debate 
thereon except as required by the Administrative Law Judge. Rulings on 
such objections shall be a part of the transcript. No such objections 
shall be deemed waived by further participation in the hearing. Formal 
exceptions are unnecessary and will not be taken to rulings on 
objections.



Sec. 417.12  Proposed findings and conclusions.

    Within 10 days following the close of hearings, interested persons 
may submit proposed findings and conclusions to the Administrative Law 
Judge, together with supporting reasons therefor, which shall become a 
part of the record.



Sec. 417.13  Initial decision of Administrative Law Judge.

    Within 25 days following the period for submitting proposed findings 
and conclusions, the Administrative Law Judge shall consider the whole 
record, file an initial decision as to the adequacy of the constitution 
and bylaws for the purpose of removing officers with the Assistant 
Secretary, and forward a copy to each party participating in the 
hearing. His decision shall become a part of the record and shall 
include a statement of his findings and conclusions, as well as the 
reasons or basis therefor, upon all material issues.



Sec. 417.14  Form and time for filing of appeal with the Assistant Secretary.

    (a) An interested person may appeal from the Administrative Law 
Judge's initial decision by filing written exceptions with the Assistant 
Secretary within 15 days of the issuance of the Administrative Law 
Judge's initial decision (or such additional time as the Assistant 
Secretary may allow), together with supporting reasons for such 
exceptions. Blanket appeals shall not be received. Impertinent or 
scandalous matter may be stricken by the Assistant Secretary, or an 
appeal containing such matter or lacking in specification of exceptions 
may be dismissed.
    (b) In the absence of either an appeal to the Assistant Secretary or 
review of the Administrative Law Judge's initial decision by the 
Assistant Secretary on his own motion, such initial decision shall 
become the decision of the Assistant Secretary.



Sec. 417.15  Decision of the Assistant Secretary.

    Upon appeal filed with the Assistant Secretary pursuant to Sec. 
417.14, or within his discretion upon his own motion, the complete 
record of the proceedings shall be certified to him; he shall notify all 
interested persons who participated in the proceedings; and he shall 
review the record, the exceptions filed and supporting reasons, and 
shall issue a decision as to the adequacy of the constitution and bylaws 
for the purpose of removing officers, or shall order such further 
proceedings as he deems appropriate. His decision shall become a part of 
the record and shall include a statement of his findings and 
conclusions, as well as the reasons or basis therefor, upon all material 
issues.

[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964]

[[Page 163]]



Subpart B_Procedures Upon Failure of Union to Take Appropriate Remedial 
                  Action Following Subpart A Procedures



Sec. 417.16  Initiation of proceedings.

    (a) Any member of a local labor organization may file a complaint 
with the Office of Labor-Management Standards alleging that following a 
finding by the Assistant Secretary pursuant to subpart A that the 
constitution and bylaws of the labor organization pertaining to the 
removal of officers are inadequate, or a stipulation of compliance with 
the provisions of section 401(h) of the Act reached with the Chief, DOE 
in connection with a prior charge of the inadequacy of a union's 
constitution and bylaws to remove officers, as provided in subpart A of 
this part, the labor organization (1) has failed to act within a 
reasonable time, or (2) has violated the procedures agreed to with the 
Chief, DOE, or (3) has violated the principles governing adequate 
removal procedures under Sec. 417.2(b).
    (b) The complaint must be filed pursuant to section 402(a) of the 
Act within one calendar month after one of the two following conditions 
has been met:
    (1) The member has exhausted the remedies available to him under the 
constitution and bylaws of the organization, or
    (2) The member has invoked such remedies without obtaining a final 
decision within three calendar months after invoking them.

[59 FR 65716, Dec. 21, 1994, as amended at 62 FR 6093, Feb. 10, 1997]



Sec. 417.17  Investigation of complaint and court action.

    The Office of Labor-Management Standards shall investigate such 
complaint, and if upon such investigation the Secretary finds probable 
cause to believe that a violation of section 401(h) of the Act has 
occurred and has not been remedied, the Secretary shall within 60 days 
after the filing of such complaint, bring a civil action against the 
labor organization in the district court of the United States for the 
district in which such labor organization maintains its principal 
office, to direct the conduct of a hearing and vote upon the removal of 
officer(s) under the supervision of the Assistant Secretary as provided 
in section 402(b) of the Act.

[59 FR 65717, Dec. 21, 1994]



Sec. 417.18  Hearings--removal of officers of local labor organizations.

    Hearings pursuant to order of the court and concerning the removal 
of officers under section 402(b) of the Act shall be for the purpose of 
introducing testimony and evidence showing why an officer or officers 
accused of serious misconduct should or should not be removed. Hearings 
shall be conducted by the officers of the labor organization (subject to 
Sec. 417.19) in accordance with the constitution and bylaws of the 
labor organization insofar as they are not inconsistent with title IV of 
the Act, or with the provisions of this part 417: Provided, however, 
That no officer(s) accused of serious misconduct shall participate in 
such hearings in any capacity except as witness or counsel.



Sec. 417.19  Assistant Secretary's representative.

    The Assistant Secretary shall appoint a representative or 
representatives whose functions shall be to supervise the hearing and 
vote. Such representative(s) shall have final authority to issue such 
rulings as shall be appropriate or necessary to insure a full and fair 
hearing and vote. Upon his own motion or upon consideration of the 
petition of any interested person the Assistant Secretary's 
Representative may disqualify any officer(s) or member(s) of the union 
from participation in the conduct of the hearing (except in the capacity 
of witness or counsel).

[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964]



Sec. 417.20  Notice of hearing.

    Notice of hearing, not less than 10 days in advance of the date set 
for such hearing, shall be transmitted to the officer or officers 
accused of serious misconduct and other interested persons, insofar as 
they are known, and shall inform them of (a) the time, place, and

[[Page 164]]

nature of the hearing; (b) the legal authority and jurisdiction under 
which the hearing is to be held; (c) the matters of fact and law 
asserted; and (d) their rights to challenge the appointment of certain 
of, or all of, the officers of the union to conduct the hearing in 
accordance with this subpart. The labor organization shall promptly 
inform its members of the provisions of the notice. Copies of the notice 
shall be made available for inspection at the office of the labor 
organization.



Sec. 417.21  Transcript.

    It shall be within the discretion of the Assistant Secretary to 
require an official reporter to make an official transcript of the 
hearings. In the event he does so require, copies of the official 
transcript shall be made available upon request addressed to the 
Assistant Secretary in accordance with the provisions of part 70 of this 
title.

[50 FR 31310, Aug. 1, 1985, as amended at 63 FR 33779, June 19, 1998]



Sec. 417.22  Vote among members of the labor organization.

    Within a reasonable time after completion of the hearing, and after 
proper notice thereof, a secret ballot vote shall be conducted among the 
members of the labor organization in good standing on the issue of 
whether the accused officer or officers shall be removed from office. 
The vote shall be in accordance with the constitution and bylaws of the 
labor organization insofar as they are not inconsistent with the 
provisions of the Act or this part 417. The presiding officer or 
officers at the taking of such vote shall entertai objections or 
suggestions as to the rules for conducting the vote, eligibility of 
voters, and such other matters as may be pertinent; and shall rule on 
such questions, shall establish procedures for the conduct of the vote, 
and for tabulation of the ballots; and shall appoint observers and 
compile a list of eligible voters. All rulings of the presiding officer 
or officers shall be subject to the provisions of Sec. 417.19.



Sec. 417.23  Report to the Assistant Secretary.

    Following completion of the hearing and vote, the Assistant 
Secretary's Representative shall file a report with the Assistant 
Secretary setting out the results of the balloting; and pertinent 
details of the hearing and vote. Notice thereof shall be given to the 
membership of such labor organization promptly and copies shall be 
furnished to all interested parties.



Sec. 417.24  Appeal to the Assistant Secretary.

    (a) Within 15 days after mailing of the report of the Assistant 
Secretary's Representative, any interested party may appeal the conduct 
of the hearing or vote or both by filing written exceptions with the 
Assistant Secretary. Blanket appeals shall not be received. Impertinent 
or scandalous matter may be stricken by the Assistant Secretary, or an 
appeal containing such matter or lacking in specifications may be 
dismissed.
    (b) Upon review of the whole record, the Assistant Secretary shall 
issue a decision or may order further hearing, a new vote, or such 
further proceedings as he deems appropriate.

[29 FR 8264, July 1, 1964, as amended at 50 FR 31310, Aug. 1, 1985]



Sec. 417.25  Certification of results of vote.

    Upon receipt of the report of the Assistant Secretary's 
Representative on the hearing and vote on removal, the Assistant 
Secretary shall certify the results of the vote to the court as required 
by section 402(c) of the Act.



PART 451_LABOR ORGANIZATIONS AS DEFINED IN THE LABOR-MANAGEMENT 
REPORTING AND DISCLOSURE ACT OF 1959--Table of Contents




Sec.
451.1 Introductory statement.
451.2 General.
451.3 Requirements of section 3(i).
451.4 Labor organizations under section 3(j).
451.5 ``State or local central body.''
451.6 Extraterritorial application.

    Authority: Secs. 3, 208, 401, 73 Stat. 520, 529, 532 (29 U.S.C. 402, 
438, 481); Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 28 FR 14388, Dec. 27, 1963, unless otherwise noted.

[[Page 165]]



Sec. 451.1  Introductory statement.

    (a) This part discusses the meaning and scope of sections 3(i) and 
3(j) of the Labor-Management Reporting and Disclosure Act of 1959 \1\ 
(hereinafter referred to as the Act). These provisions define the terms 
``labor organization'' and ``labor organization * * * in an industry 
affecting commerce'' for purposes of the Act.\2\
---------------------------------------------------------------------------

    \1\ 73 Stat. 520, 521, 29 U.S.C. 402.
    \2\ It should be noted that the definition of the term ``labor 
organization,'' as well as other terms, in section 3 are for purposes of 
those portions of the Act included in titles I, II, III, IV, V (except 
section 505) and VI. They do not apply to title VII, which contains 
amendments of the National Labor Relations Act, as amended, nor to 
section 505 of title V, which amends section 302 (a), (b), and (c) of 
the Labor Management Relations Act, 1947, as amended. The terms used in 
title VII and section 505 of title V have the same meaning as they have 
under the National Labor Relations Act, as amended, and the Labor 
Management Relations Act, 1947, as amended.
---------------------------------------------------------------------------

    (b) The Act imposes on labor organizations various obligations and 
prohibitions relating generally, among other things, to the reporting of 
information and election and removal of officers. Requirements are also 
imposed on the officers, representatives, and employees of labor 
organizations. In addition, certain rights are guaranteed the members 
thereof. It thus becomes a matter of importance to determine what 
organizations are included within the applicability of the Act.
    (c) The provisions of the Act, other than title I and amendments to 
other statutes contained in section 505 and title VII, are subject to 
the general investigatory authority of the Secretary of Labor embodied 
in section 601 \3\ (and delegated by him to the Assistant Secretary), 
which empowers him to investigate whenever he believes it necessary in 
order to determine whether any person has violated or is about to 
violate such provisions. The correctness of an interpretation of these 
provisions can be determined finally and authoritatively only by the 
courts. It is necessary, however, for the Assistant Secretary to reach 
informed conclusions as to the meaning of the law to enable him to carry 
out his statutory duties of administration and enforcement. The 
interpretations of the Assistant Secretary contained in this part, which 
are issued upon the advice of the Solicitor of Labor, indicate the 
construction of the law which will guide him in performing his duties 
unless and until he is directed otherwise by authoritative rulings of 
the courts or unless and until he subsequently decides that a prior 
interpretation is incorrect. However, the omission to discuss a 
particular problem in this part, or in interpretations supplementing it, 
should not be taken to indicate the adoption of any position by the 
Assistant Secretary with respect to such problem or to constitute an 
administrative interpretation or practice. Interpretations of the 
Assistant Secretary with respect to the meaning of the terms ``labor 
organization'' and ``labor organization * * * in an industry affecting 
commerce,'' as used in the Act, are set forth in this part to provide 
those affected by the provisions of the Act with ``a practical guide * * 
* as to how the office representing the public interest in its 
enforcement will seek to apply it.'' \4\
---------------------------------------------------------------------------

    \3\ Sec. 601, 73 Stat. 539, 29 U.S.C. 521.
    \4\Skidmore v. Swift & Co., 323 U.S. 134, 138.
---------------------------------------------------------------------------

    (d) To the extent that prior opinions and interpretations relating 
to the meaning of ``labor organization'' and ``labor organization * * * 
in an industry affecting commerce'' are inconsistent or in conflict with 
the principles stated in this part, they are hereby rescinded and 
withdrawn.

[28 FR 14388, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]



Sec. 451.2  General.

    A ``labor organization'' under the Act must qualify under section 
3(i). It must also be engaged in an industry affecting commerce. In 
accordance with the broad language used and the manifest congressional 
intent, the language will be construed broadly to include all labor 
organizations of any kind other than those clearly shown to be outside 
the scope of the Act.



Sec. 451.3  Requirements of section 3(i).

    (a) Organizations which deal with employers. (1) The term ``labor 
organization'' includes ``any organization of any

[[Page 166]]

kind, any agency, or employee representation committee, group, 
association, or plan * * * in which employees participate and which 
exists for the purpose, in whole or in part, of dealing with employers 
concerning grievances, labor disputes, wages, rates of pay, hours, or 
other terms or conditions of employment, * * *.'' The quoted language is 
deemed sufficiently broad to encompass any labor organization 
irrespective of size or formal attributes. While it is necessary for 
employees to participate therein, such participating employees need not 
necessarily be the employees of the employer with whom the organization 
deals. In determining who are ``employees'' for purposes of this 
provision, resort must be had to the broad definition of ``employee'' 
contained in section 3(f) of the Act.\5\ It will be noted that the term 
includes employees whose work has ceased for certain specified reasons, 
including any current labor dispute.
---------------------------------------------------------------------------

    \5\ Sec. 3(f) reads: `` `Employee' means any individual employed by 
an employer, and includes any individual whose work has ceased as a 
consequence of, or in connection with, any current labor dispute or 
because of any unfair labor practice or because of exclusion or 
expulsion from a labor organization in any manner or for any reason 
inconsistent with the requirements of this Act.''
---------------------------------------------------------------------------

    (2) To come within the quoted language in section 3(i) the 
organization must exist for the purpose, in whole or in part, of dealing 
with employers concerning grievances, etc. In determining whether a 
given organization exists wholly or partially for such purpose, 
consideration will be given not only to formal documents, such as its 
constitution or bylaws, but the actual functions and practices of the 
organization as well. Thus, employee committees which regularly meet 
with management to discuss problems of mutual interest and handle 
grievances are ``labor organizations'', even though they have no formal 
organizational structure.\6\
---------------------------------------------------------------------------

    \6\ National Labor Relations Board v. Cabot Carbon Co., 360 U.S. 
203.
---------------------------------------------------------------------------

    (3) Since the types of labor organizations described in subparagraph 
(2) of this paragraph are those which deal with employers, it is 
necessary to consider the definition of ``employer'' contained in 
section 3(e) of the Act in determining the scope of the language under 
consideration.\7\ The term ``employer'' is broadly defined to include 
``any employer or any group or association of employers engaged in an 
industry affecting commerce'' which is ``an employer within the meaning 
of any law of the United States relating to the employment of any 
employees * * *.'' Such laws would include, among others, the Railway 
Labor Act, as amended, the Fair Labor Standards Act, as amended, the 
Labor Management Relations Act, as amended, and the Internal Revenue 
Code. The fact that employers may be excluded from the application of 
any of the foregoing acts would not preclude their qualification as 
employers for purposes of this Act. For example, employers of 
agricultural labor who are excluded from the application of the Labor 
Management Relations Act, as amended, would appear to be employers 
within the meaning of this Act.
---------------------------------------------------------------------------

    \7\ Sec. 3(e) reads: `` `Employer' means any employer or any group 
or association of employers engaged in an industry affecting commerce, 
(1) which is, with respect to employees engaged in an industry affecting 
commerce, an employer within the meaning of any law of the United States 
relating to the employment of any employees or (2) which may deal with 
any labor organization concerning grievances, labor disputes, wages, 
rates of pay, hours of employment, or conditions of work, and includes 
any person acting directly or indirectly as an employer or as an agent 
of an employer in relation to an employee but does not include the 
United States or any corporation wholly owned by the Government of the 
United States or any State or political subdivision thereof.''
---------------------------------------------------------------------------

    (4) In defining ``employer,'' section 3(e) expressly excludes the 
``United States or any corporation wholly owned by the Government of the 
United States or any State or political subdivision thereof.'' The term 
``political subdivision'' includes, among others, counties and municipal 
governments. A labor organization composed entirely of employees of the 
governmental entities excluded by section 3(e) would not be a labor 
organization for the purposes of the Act with the exception of a labor 
organization composed of employees of the United States Postal Service 
which is subject

[[Page 167]]

to the Act by virtue of the Postal Reorganization Act of 1970. 
(Organizations composed of Federal government employees that meet the 
definition of ``labor organization'' in the Civil Service Reform Act or 
the Foreign Service Act are subject to the standards of conduct 
requirements of those Acts, 5 U.S.C. 7120 and 22 U.S.C. 4117, 
respectively. In addition, labor organizations subject to the 
Congressional Accountability Act of 1995 are subject to the standards of 
conduct provisions of the Civil Service Reform Act pursuant to 2 U.S.C. 
1351(a)(1). The regulations implementing the standards of conduct 
requirements are contained in parts 457--459 of this title.) However, in 
the case of a national, international or intermediate labor organization 
composed both of government locals and non-government or mixed locals, 
the parent organization as well as its mixed and non-government locals 
would be `T`Tlabor organizationsT'T' and subject to the Act. In such 
case, the locals which are composed entirely of government employees 
would not be subject to the Act, although elections in which they 
participate for national officers or delegates would be so subject.\8\
---------------------------------------------------------------------------

    \8\ See also, Sec. 452.12 of this chapter which discusses the 
election provisions of the Act.
---------------------------------------------------------------------------

    (b) Organizations which may or may not deal with employers. 
Regardless of whether it deals with employers concerning terms and 
conditions of employment and regardless of whether it is composed of 
employees, any conference, general committee, joint or system board, or 
joint council engaged in an industry affecting commerce and which is 
subordinate to a national or international labor organization is a 
``labor organization'' for purposes of the Act. Included are the area 
conferences and the joint councils of the International Brotherhood of 
Teamsters and similar units of other national and international labor 
organizations.

[28 FR 14388, Dec. 27, 1963, as amended at 42 FR 59071, Nov. 15, 1977; 
50 FR 31310, Aug. 1, 1985; 62 FR 6093, Feb. 10, 1997]



Sec. 451.4  Labor organizations under section 3(j).

    (a) General. Section 3(j) sets forth five categories of labor 
organizations which ``shall be deemed to be engaged in an industry 
affecting commerce'' within the meaning of the Act. Any organization 
which qualifies under section 3(i) and falls within any one of these 
categories listed in section 3(j) is subject to the requirements of the 
Act.
    (b) Certified employee representatives. This category includes all 
organizations certified as employee representatives under the Railway 
Labor Act, as amended, or under the National Labor Relations Act, as 
amended.
    (c) Labor organizations recognized or acting as employee 
representatives though not certified. This category includes local, 
national, or international labor organizations which, though not 
formally certified, are recognized or acting as the representatives of 
employees of an employer engaged in an industry affecting commerce. 
Federations, such as the American Federation of Labor and Congress of 
Industrial Organizations, are included in this category,\9\ although 
expressly excepted from the election provisions of the Act.\10\
---------------------------------------------------------------------------

    \9\ See National Labor Relations Board v. Highland Park Mfg. Co., 
341 U.S. 322. See also paragraph (d) of this section.
    \10\ Act, sec. 401(a).
---------------------------------------------------------------------------

    (d) Organizations which have chartered local or subsidiary bodies. 
This category includes any labor organization that has chartered a local 
labor organization or subsidiary body which is within either of the 
categories discussed in paragraph (b) or (c) of this section. Under this 
provision, a labor organization not otherwise subject to the Act, such 
as one composed of Government employees, would appear to be ``engaged in 
an industry affecting commerce'' and, therefore, subject to the Act if 
it charters one or more local labor organizations which deal with an 
``employer'' as defined in section 3(c).\11\ This category includes, 
among others, a federation of national or international organizations 
which directly charters local bodies.\12\
---------------------------------------------------------------------------

    \11\ See Sec. 451.3(a).
    \12\ See also paragraph (c) of this section.
---------------------------------------------------------------------------

    (e) Local or subordinate bodies which have been chartered by a labor 
organization. This category includes any labor organization that has 
been chartered by an organization within either of the categories 
discussed in paragraph (b) or

[[Page 168]]

(c) of this section as the local or subordinate body through which such 
employees may enjoy membership or become affiliated with the chartering 
organization.
    (f) Intermediate bodies. Included in this category is any 
conference, general committee, joint or system board, or joint council, 
subordinate to a national or international labor organization, which 
includes a labor organization engaged in an industry affecting commerce 
within the categories discussed in paragraphs (b), (c), (d) and (e) of 
this section. Excluded from this definition, however, are State or local 
central bodies.\13\ (It should be noted that the above listing is 
included in the Act as words of illustration, not of limitation.) The 
following is a description of typical intermediate bodies:
---------------------------------------------------------------------------

    \13\ For discussion of State and local central bodies see Sec. 
451.5.
---------------------------------------------------------------------------

    (1) Conference. A conference is an organic body within a national or 
international labor organization formed on a geographical area, trade 
division, employer-wide or similar basis and composed of affiliate 
locals of the parent national or international organization. The various 
conferences of the International Brotherhood of Teamsters, for example, 
are in this category.
    (2) General committees. Typical of those bodies are the general 
committees of the railroad labor organizations. The term includes any 
subordinate unit of a national railroad labor organization, regardless 
of the title or designation of such unit, which under the constitution 
and bylaws of the organization of which it is a unit, is authorized to 
represent that organization on a particular railroad or portion thereof 
in negotiating with respect to wages and working conditions.\14\ General 
committees are sometimes known as system boards of adjustment, general 
grievance committees, and general committees of adjustment. They are to 
be distinguished from system boards of adjustment established under the 
Railway Labor Act, which are composed of management and labor members. 
These joint labor-management boards are not included within the 
definition of a labor organization under the Act.
---------------------------------------------------------------------------

    \14\ See definition of term ``General Committee'' under Railroad 
Retirement Act in 20 CFR 201.1(k).
---------------------------------------------------------------------------

    (3) Joint or system boards. As mentioned above, in connection with 
railroad labor organizations the term ``general committee'' includes 
system boards. However, as used here the term has a broader meaning and 
includes, among others, boards which have members from more than one 
labor organization.
    (4) Joint councils. A joint council is composed of locals not 
necessarily of the same national or international labor organization 
located in a particular area, such as a city or county. These bodies are 
sometimes called joint boards, joint executive boards, joint councils, 
or district councils. Included, for example, are councils of building 
and construction trades labor organizations.

[28 FR 14388, Dec. 27, 1963, as amended at 42 FR 59071, Nov. 15, 1977]



Sec. 451.5  ``State or local central body.''

    (a) The definition of ``labor organization'' in section 3(i) and the 
examples of labor organizations deemed to be engaged in an industry 
affecting commerce in section 3(j)(5) both except from the term ``labor 
organization'' a ``State or local central body.'' As used in these two 
sections, the phrase State or local central body means an organization 
that:
    (1) Is chartered by a federation of national or international 
unions; and
    (2) Admits to membership local unions and subordinate bodies of 
national or international unions that are affiliated with the chartering 
federation within the State or local central body's territory and any 
local unions or subordinate bodies directly affiliated with the 
federation in such territory; and
    (3) Exists primarily to carry on educational, legislative and 
coordinating activities.
    (b) The term does not include organizations of local unions or 
subordinate bodies (1) of a single national or international union; or 
(2) of a particular department of a federation or similar association of 
national or international unions.

[29 FR 8060, June 25, 1964]

[[Page 169]]



Sec. 451.6  Extraterritorial application.

    (a) It is not the purpose of the Act to impose on foreign labor 
organizations any regulation of the activities they carry on under the 
laws of the countries in which they are domiciled or have their 
principal place of business. The applicability of the Act is limited to 
the activities of persons or organizations within the territorial 
jurisdiction of the United States. The foregoing would be applicable, 
for example, to Canadian locals affiliated with international labor 
organizations organized within the United States.
    (b) On the other hand, labor organizations otherwise subject to the 
Act are not relieved of the requirements imposed upon them with respect 
to actions taken by them in the United States or which will have effect 
in the United States, by virtue of the fact that they have foreign 
members or affiliates that participate in these actions. For example, a 
national or international labor organization which conducts its required 
election of officers by referendum or at a convention of delegates must 
comply with the election provisions of the Act, \16\ even though members 
of foreign locals participate in the balloting, or delegates of foreign 
locals participate in the election at the convention.
---------------------------------------------------------------------------

    \15\ [Reserved]
    \16\ See Sec. 452.13 of this chapter.
---------------------------------------------------------------------------

    (c) Similarly, the provisions of the Act with respect to imposition 
of trusteeships \17\ are applicable to United States national or 
international labor organizations subject to this Act even though the 
action of the United States organization is taken with respect to a 
foreign local.
---------------------------------------------------------------------------

    \17\ See title III of the Act.
---------------------------------------------------------------------------



PART 452_GENERAL STATEMENT CONCERNING THE ELECTION PROVISIONS OF THE 
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959--Table of Contents




                    Subpart A_General Considerations

Sec.
452.1 Introductory statement.
452.2 Application of union constitution and bylaws.
452.3 Interpretations of constitution and bylaws.
452.4 Investigatory provision--application.
452.5 Effect of violation on outcome.
452.6 Delegation of enforcement authority.

        Subpart B_Other Provisions of the Act Affecting Title IV

452.7 Bill of Rights, title I.
452.8 Trusteeship provisions, title III.
452.9 Prohibition against certain persons holding office; section 504.
452.10 Retaliation for exercising rights.

                Subpart C_Coverage of Election Provisions

452.11 Organizations to which election provisions apply.
452.12 Organizations comprised of government employees.
452.13 Extraterritorial application.
452.14 Newly formed or merged labor organizations.
452.15 Effect of trusteeship.
452.16 Offices which must be filled by election.
452.17 Officer.
452.18 Constitutional officers.
452.19 Executive functions.
452.20 Nature of executive functions.
452.21 Members of executive board.
452.22 Delegates to a convention.

               Subpart D_Frequency and Kinds of Elections

452.23 Frequency of elections.
452.24 Terms of office.
452.25 Vacancies in office.
452.26 Elections in local labor organizations.
452.27 National, international organizations, and intermediate bodies.
452.28 Unopposed candidates.
452.29 Primary elections.
452.30 Run-off elections.
452.31 One candidate for several offices.

        Subpart E_Candidacy for Office; Reasonable Qualifications

452.32 Persons who may be candidates and hold office; secret ballot 
          elections.
452.33 Persons who may be candidates and hold office; elections at 
          conventions.
452.34 Application of section 504, LMRDA.
452.35 Qualifications for candidacy.
452.36 Reasonableness of qualifications.
452.37 Types of qualifications.
452.38 Meeting attendance requirements.
452.39 Participation in insurance plan.
452.40 Prior office holding.
452.41 Working at the trade.
452.42 Membership in particular branch or segment of the union.

[[Page 170]]

452.43 Representative categories.
452.44 Dual unionism.
452.45 Multiple office holding.
452.46 Characteristics of candidate.
452.47 Employer or supervisor members.
452.48 Employees of union.
452.49 Other union rules.
452.50 Disqualification as a result of disciplinary action.
452.51 Declaration of candidacy.
452.52 Filing fee.
452.53 Application of qualifications for office.
452.54 Retroactive rules.

                    Subpart F_Nominations for Office

452.55 Statutory provisions concerning nomination.
452.56 Notice.
452.57 Procedures for nomination.
452.58 Self-nomination.
452.59 Presence of nominee.
452.60 Nominations for national, international, or intermediate body 
          office.
452.61 Elimination contests--local unions.
452.62 Disqualification of candidates; procedural reasons.
452.63 Nominations at conventions.
452.64 Write-in votes.
452.65 Interval between nominations and election.

                      Subpart G_Campaign Safeguards

452.66 Statutory provisions.
452.67 Distribution of campaign literature.
452.68 Distribution to less than full membership.
452.69 Expenses of campaign literature.
452.70 Contents of literature.
452.71 Inspection of membership lists.
452.72 Period of inspection.
452.73 Use of union funds.
452.74 Expenditures permitted.
452.75 Union newspapers.
452.76 Campaigning by union officers.
452.77 Permissive use of union funds.
452.78 Expenditures by employers.
452.79 Opportunity to campaign.
452.80 Bona fide candidates.
452.81 Rights in intermediate body elections.
452.82 Reprisal for exercising rights.
452.83 Enforcement of campaign safeguards.

                         Subpart H_Right to Vote

452.84 General.
452.85 Reasonable qualifications on right to vote.
452.86 Vote conditioned on payment of dues.
452.87 Dues paid by checkoff.
452.88 Resumption of good standing.
452.89 Apprentices.
452.90 Visiting members.
452.91 Voting by employers, supervisors.
452.92 Unemployed members.
452.93 Retired members.
452.94 Reasonable opportunity to vote.
452.95 Absentee ballots.

            Subpart I_Election Procedures; Rights of Members

452.96 General.
452.97 Secret ballot.
452.98 Outside agencies.
452.99 Notice of election.
452.100 Use of union newspaper as notice.
452.101 Sample ballots as notice.
452.102 Notice in mail ballot election.
452.103 Primary elections.
452.104 Proximity of notice to election.
452.105 Interference or reprisal.
452.106 Preservation of records.
452.107 Observers.
452.108 Publication of results.
452.109 Constitution of labor organization.
452.110 Adequate safeguards.
452.111 Campaigning in polling places.
452.112 Form of ballot; slate voting.
452.113 Sectional balloting.
452.114 Write-in votes.
452.115 Distribution of ballots.
452.116 Determining validity of ballots.
452.117 Majority of votes not required for election.
452.118 Local union agents in international elections.
452.119 Indirect elections.
452.120 Officers as delegates.
452.121 Limitations on national or international officers serving as 
          delegates.
452.122 Delegates from intermediate bodies; method of election.
452.123 Elections of intermediate body officers.
452.124 Delegates from units which are not labor organizations.
452.125 Delegates from labor organizations under trusteeship.
452.126 Delegates to conventions which do not elect officers.
452.127 Proportionate representation.
452.128 Under-strength representation.
452.129 Non-discrimination.
452.130 Expenses of delegates.
452.131 Casting of ballots; delegate elections.
452.132 Proxy voting.
452.133 Election of delegates not members of the labor organization.
452.134 Preservation of records.

                Subpart J_Special Enforcement Provisions

452.135 Complaints of members.
452.136 Investigation of complaint by Office of Labor-Management 
          Standards and court action by the Secretary.

                Subpart K_Dates and Scope of Application

452.137 Effective dates.

[[Page 171]]

452.138 Application of other laws.

    Authority: Secs. 401, 402, 73 Stat. 532, 534 (29 U.S.C. 481, 482); 
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 38 FR 18324, July 9, 1973, unless otherwise noted.



                    Subpart A_General Considerations



Sec. 452.1  Introductory statement.

    (a) This part discusses the meaning and scope of the provisions of 
title IV of the Labor-Management Reporting and Disclosure Act \1\ 
(hereinafter referred to as the Act), which deal with the election of 
officers of labor organizations. These provisions require periodic 
election of union officers, and prescribe minimum standards to insure 
that such elections will be fairly conducted. Specific provisions are 
included to assure the right of union members to participate in 
selecting their officers without fear of interference or reprisal, and 
to protect the right to nominate candidates, run for office, and vote in 
officer elections. Title IV also sets forth the rights of candidates, 
provides for secret ballots in appropriate cases, and requires notice of 
nominations and elections, preservation of election records, and other 
safeguards to insure fair elections. However, the Act does not prescribe 
complete, detailed procedures for the nomination and election of union 
officers.
---------------------------------------------------------------------------

    \1\ 73 Stat. 532-535, 29 U.S.C. 481-483.
---------------------------------------------------------------------------

    (b) Interpretations of the Assistant Secretary with respect to the 
election provisions of title IV are set forth in this part to provide 
those affected by these provisions of the Act with ``a practical guide * 
* * as to how the office representing the public interest in its 
enforcement will seek to apply it.'' \2\ The correctness of an 
interpretation can be determined finally and authoritatively only by the 
courts. It is necessary, however, for the Assistant Secretary to reach 
informed conclusions as to the meaning of the law to enable him to carry 
out his statutory duties of administration and enforcement. The 
interpretations of the Assistant Secretary contained in this part, which 
are issued upon the advice of the Solicitor of Labor, indicate the 
construction of the law which will guide him in performing his duties 
unless and until he is directed otherwise by authoritative rulings of 
the courts or unless and until he subsequently announces that a prior 
interpretation is incorrect. However, the fact that a particular problem 
is not discussed in this part, or in interpretations supplementing it, 
should not be taken to indicate the adoption of any position by the 
Assistant Secretary with respect to such problem or to constitute an 
administrative interpretation or practice.
---------------------------------------------------------------------------

    \2\ Skidmore v. Swift & Co., 323 U.S. 134 at 138 (1944).
---------------------------------------------------------------------------

    (c) To the extent that prior opinions and interpretations relating 
to the election of officers of labor organizations under the Act are 
inconsistent or in conflict with the principles stated in this part, 
they are hereby rescinded and withdrawn.



Sec. 452.2  Application of union constitution and bylaws.

    Elections required to be held as provided in title IV are to be 
conducted in accordance with the validly adopted constitution and bylaws 
of the labor organizations insofar as they are not inconsistent with the 
provisions of the Act.

[38 FR 18324, July 9, 1973, as amended at 63 FR 33780, June 19, 1998]



Sec. 452.3  Interpretations of constitution and bylaws.

    The interpretation consistently placed on a union's constitution by 
the responsible union official or governing body will be accepted unless 
the interpretation is clearly unreasonable. \3\
---------------------------------------------------------------------------

    \3\ English v. Cunningham, 282 F.2d 848 (C.A.D.C. 1960).
---------------------------------------------------------------------------



Sec. 452.4  Investigatory provision--application.

    The provisions of section 601 of the Act provide general 
investigatory authority to investigate alleged violations of the Act 
including violations of title IV. However, section 601 in and of itself 
provides no remedy, and the section must be read in conjunction with the 
remedy and statutory scheme of section 402, i.e., exhaustion of internal 
union remedies and a complaint to the

[[Page 172]]

Secretary following completion of the election before suit can be filed. 
In view of the remedy provided, an investigation prior to completion of 
an election may have the effect of publicizing the activities or 
unsubstantiated allegations of one faction to the prejudice of the 
opposition. To avoid this result, and as a matter of sound statutory 
construction, the Department will exercise its investigatory authority 
only in circumstances in which the outcome of the election could not be 
affected by the investigation. \4\ Thus, the Department ordinarily will 
employ its investigatory authority only where the procedural 
requirements for a title IV investigation have been met; but in unusual 
circumstances or where necessary to collect or preserve evidence an 
investigation may be conducted after the conclusion of balloting.
---------------------------------------------------------------------------

    \4\ However questions involving the use of force or violence or the 
threat of the use of force or violence under circumstances which may 
violate section 610 (29 U.S.C. 530) of the Act will be referred promptly 
to the Department of Justice for appropriate action.
---------------------------------------------------------------------------



Sec. 452.5  Effect of violation on outcome.

    Since the remedy under section 402 is contingent upon a finding by 
the court, among other things, that the violation ``may have affected 
the outcome of an election'' \5\ the Secretary as a matter of policy 
will not file suit to enforce the election provisions unless the 
violations found are such that the outcome may have been affected. \6\
---------------------------------------------------------------------------

    \5\ Act, sec. 402(b) (29 U.S.C. 482).
    \6\ Dunlop v. Bachowski, 421 U.S. 560, 570 (1975), citing Wirtz v. 
Glass Bottle Blowers, 389 U.S. 463, 472 (1968) and Schonfeld v. Wirtz, 
285 F. Supp. 705, 707-708 (S.D.N.Y. 1966).

[38 FR 18324, July 9, 1973, as amended at 50 FR 31310, Aug. 1, 1985; 63 
FR 33780, June 19, 1998]



Sec. 452.6  Delegation of enforcement authority.

    The authority of the Secretary under the Act has been delegated in 
part to the Assistant Secretary.

[38 FR 18324, July 9, 1973, as amended at 50 FR 31309, Aug. 1, 1985]



        Subpart B_Other Provisions of the Act Affecting Title IV



Sec. 452.7  Bill of Rights, title I.

    The provisions of title I, ``Bill of Rights of Members of Labor 
Organizations'' \7\ (particularly section 101(a)(1) ``Equal Rights,'' 
section 101(a)(2) ``Freedom of Speech and Assembly,'' and section 
101(a)(5) ``Safeguards against Improper Disciplinary Action'') are 
related to the rights pertaining to elections. Direct enforcement of 
title I rights, as such, is limited to civil suit in a district court of 
the United States by the person whose rights have been infringed. \8\ 
The exercise of particular rights of members is subject to reasonable 
rules and regulations in the labor organization's constitution and 
bylaws. \9\
---------------------------------------------------------------------------

    \7\ 73 Stat. 522, 29 U.S.C. 411.
    \8\ But the Secretary may bring suit to enforce section 104 (29 
U.S.C. 414).
    \9\ Act, sec. 101(a)(1), 101(a)(2), and 101(b) (29 U.S.C. 411).
---------------------------------------------------------------------------



Sec. 452.8  Trusteeship provisions, title III.

    Placing a labor organization under trusteeship consistent with title 
III, may have the effect of suspending the application of title IV to 
the trusteed organization (see Sec. 452.15).



Sec. 452.9  Prohibition against certain persons holding office; section 504.

    Among the safeguards for labor organizations provided in title V is 
a prohibition against the holding of office by certain classes of 
persons. \10\ This provision makes it a crime for any person willfully 
to serve in certain positions, including as an elected officer of a 
labor organization, for a period of three to thirteen years after 
conviction or imprisonment for the commission of specified offenses, 
including violation of titles II or III of the Act, or conspiracy or 
attempt to commit such offenses. It is likewise a crime for any labor 
organization or officer knowingly to permit such a person to serve in 
such positions. Persons subject to the prohibition applicable to 
convicted

[[Page 173]]

criminals may serve if their citizenship rights have been fully restored 
after being taken away by reason of the conviction, or if, following the 
procedures set forth in the Act, it is determined that their service 
would not be contrary to the purposes of the Act.
---------------------------------------------------------------------------

    \10\ Act, sec. 504(a) (29 U.S.C. 504), as amended by the 
Comprehensive Crime Control Act of 1984, Public Law 98-473, secs. 229, 
235, 803 and 804. See text at footnote 23 for a list of the disabling 
crimes.

[50 FR 31310, Aug. 1, 1985]



Sec. 452.10  Retaliation for exercising rights.

    Section 609, which prohibits labor organizations or their officials 
from disciplining members for exercising their rights under the Act, and 
section 610, which makes it a crime for any person to use or threaten 
force or violence for the purpose of interfering with or preventing the 
exercise of any rights protected under the Act, apply to rights relating 
to the election of officers under title IV.



                Subpart C_Coverage of Election Provisions



Sec. 452.11  Organizations to which election provisions apply.

    Title IV of the Act contains election provisions applicable to 
national and international labor organizations, except federations of 
such organizations, to intermediate bodies such as general committees, 
conferences, system boards, joint boards, or joint councils, certain 
districts, district councils and similar organizations and to local 
labor organizations. \11\ The provisions do not apply to State and local 
central bodies, which are explicitly excluded from the definition of 
``labor organization''. \12\ The characterization of a particular 
organizational unit as a ``local,'' ``intermediate,'' etc., is 
determined by its functions and purposes rather than the formal title by 
which it is known or how it classifies itself.
---------------------------------------------------------------------------

    \11\ For the scope of the term ``labor organization,'' see part 451 
of this chapter.
    \12\ See Sec. 451.5 of this chapter for a definition of ``State or 
local central body.''
---------------------------------------------------------------------------



Sec. 452.12  Organizations comprised of government employees.

    An organization composed entirely of government employees (other 
than employees of the United States Postal Service) is not subject to 
the election provisions of the Act. Section 3(e) of the Act, defining 
the term ``employer,'' specifically excludes the United States 
Government, its wholly owned corporations, and the States and their 
political subdivisions from the scope of that term, and section 3(f) 
defines an ``employee'' as an individual employed by an ``employer.'' 
Since a ``labor organization'' is defined in section 3(i) as one in 
which ``employees'' participate and which exists in whole or in part for 
the purpose of ``dealing with employers,'' an organization composed 
entirely of government employees would not be a ``labor organization'' 
\13\ as that term is defined in the Act. However, section 1209 of the 
Postal Reorganization Act provides that organizations of employees of 
the United States Postal Service shall be subject to the Labor-
Management Reporting and Disclosure Act. A national, international or 
intermediate labor organization which has some locals of government 
employees not covered by the Act and other locals which are mixed or are 
composed entirely of employees covered by the Act would be subject to 
the election requirements of the Act. Its mixed locals would also be 
subject to the Act. The requirements would not apply to locals composed 
entirely of government employees not covered by the Act, except with 
respect to the election of officers of a parent organization which is 
subject to those requirements or the election of delegates to a 
convention of such parent organization, or to an intermediate body to 
which the requirements apply.
---------------------------------------------------------------------------

    \13\ Most labor organizations composed of Federal Government 
employees are subject to the standards of conduct provisions of the 
Civil Service Reform Act, 5 U.S.C. 7120, or the Foreign Service Act, 22 
U.S.C. 4117. The regulations implementing those statutory provisions are 
contained in parts 457-459 of this chapter.

[38 FR 18324, July 9, 1973, as amended at 50 FR 31311, Aug. 1, 1985; 63 
FR 33780, June 19, 1998]



Sec. 452.13  Extraterritorial application.

    Although the application of the Act is limited to the activities of 
persons and organizations within the territorial jurisdiction of the 
United

[[Page 174]]

States, \14\ an international, national or intermediate body is not 
exempted from the requirements of the Act by virtue of the participation 
of its foreign locals or foreign membership in its elections. For 
example, votes received from Canadian members in referendum elections 
held by an international must have been cast under procedures meeting 
the minimum requirements of the Act, and Canadian delegates 
participating at conventions of the international at which officers are 
elected must have been elected by secret ballot.
---------------------------------------------------------------------------

    \14\ See Sec. 451.6 of this chapter.
---------------------------------------------------------------------------



Sec. 452.14  Newly formed or merged labor organizations.

    The initial selection of officers by newly formed or merged labor 
organizations is not subject to the requirements of title IV. \15\ Such 
labor organizations may have temporary or provisional officers serve 
until a regular election subject to the Act can be scheduled. An 
election under all the safeguards prescribed in these regulations must 
be held within a reasonable period after the organization begins to 
function. What would be a reasonable time for this purpose depends on 
the circumstances, but after the formation or consolidation of the labor 
organization, a regular election subject to title IV may not be deferred 
longer than the statutory period provided for that type of organization. 
However, when a pre-existing labor organization changes its affiliation 
without substantially altering its basic structure or identity the terms 
of its officers may not be extended beyond the maximum period specified 
by the Act for the type of labor organization involved.
---------------------------------------------------------------------------

    \15\ However, the other provisions of the Act are applicable 
immediately upon such formation or merger.
---------------------------------------------------------------------------



Sec. 452.15  Effect of trusteeship.

    Establishment of a valid trusteeship may have the effect of 
suspending the operation of the election provisions of the Act. When the 
autonomy otherwise available to a subordinate labor organization has 
been suspended consistent with the provisions of title III of the Act, 
officers of the organization under trusteeship may be relieved of their 
duties and temporary officers appointed by the trustee if necessary to 
assist him in carrying out the purposes for which the trusteeship was 
established. However, when a regular election of officers or an election 
for purposes of terminating the trusteeship is being held during the 
trusteeship, title IV would apply.



Sec. 452.16  Offices which must be filled by election.

    Section 401 of the Act identifies the types of labor organizations 
whose officers must be elected and prescribes minimum standards and 
procedures for the conduct of such elections. Under that section 
officers of national or international labor organizations (except 
federations of such organizations), local labor organizations, and 
intermediate bodies such as general committees, system boards, joint 
boards, joint councils, conferences, certain districts, district 
councils and similar organizations must be elected. \16\
---------------------------------------------------------------------------

    \16\ See Sec. 452.23 for a discussion of the frequency with which 
the different types of labor organizations must conduct elections of 
officers. See part 451 of this chapter for the scope of the term ``labor 
organization.''
---------------------------------------------------------------------------



Sec. 452.17  Officer.

    Section 3(n) of the Act defines the word ``officer'' and it is this 
definition which must be used as a guide in determining what particular 
positions in a labor organization are to be filled in the manner 
prescribed in the Act. For purposes of the Act, ``officer'' means ``any 
constitutional officer, any person authorized to perform the functions 
of president, vice president, secretary, treasurer, or other executive 
functions of a labor organization, and any member of its executive board 
or similar governing body.''



Sec. 452.18  Constitutional officers.

    A constitutional officer refers to a person holding a position 
identified as an officer by the constitution and bylaws of the labor 
organization. Thus, for example, a legislative representative of a labor 
organization who performs no executive functions and whose duties are 
confined to promoting

[[Page 175]]

the interests of members in legislative matters is nevertheless an 
officer who is required to be elected where the labor organization's 
constitution identifies the holder of such a position as an officer. On 
the other hand, legislative representatives who are required to be 
elected by the constitution and bylaws of a labor organization are not 
considered to be officers within the meaning of the Act if they are not 
designated as such by the constitution, are not members of any executive 
board or similar governing body, and do not perform executive functions. 
As defined in the Act, however, the term ``officer'' is not limited to 
individuals in positions identified as such or provided for in the 
constitution or other organic law of the labor organization. \17\ The 
post of Honorary President, President Emeritus or Past President that is 
to be assumed by the retiring chief executive officer of a union would 
not be an officer position unless it is designated as an officer 
position by the union's constitution, or the holder of the position 
performs executive functions or serves on an executive board or similar 
governing body.
---------------------------------------------------------------------------

    \17\ Cf. NLRB v. Coca-Cola Bottling Co., 350 U.S. 264 (1956). See 
also, Daily Cong. Rec. 5867, Sen., Apr. 23, 1959.
---------------------------------------------------------------------------



Sec. 452.19  Executive functions.

    The definitional phrase ``a person authorized to perform the 
functions of president, vice president, secretary, treasurer, or other 
executive functions of a labor organization'' brings within the term 
``officer'' any person who in fact has executive or policy-making 
authority or responsibility, although he may not occupy a position 
identified as an officer under the constitution and bylaws of the 
organization. Authorization to perform such functions need not be 
contained in any provision of the constitution or bylaws or other 
document but may be inferred from actual practices or conduct. On the 
other hand, a person is not an officer merely because he performs 
ministerial acts for a designated officer who alone has responsibility. 
The normal functions performed by business agents and shop stewards, 
such as soliciting memberships, presenting or negotiating employee 
grievances within the work place, and negotiating contracts are not 
``other executive functions'' as that phrase is used in section 3(n) of 
the Act. However, a directing business representative or a business 
manager usually exercises such a degree of executive authority as to be 
considered an officer and, therefore, must be elected. The duties 
normally pertaining to membership on a bargaining committee do not come 
within the phrase ``other executive functions.'' However, persons 
occupying such non-executive positions may be ``officers'' if they are 
ex officio members of the organization's executive board (or similar 
governing body) or if the constitution or bylaws of the union designate 
such positions as officers.



Sec. 452.20  Nature of executive functions.

    (a) The functions that will bring a particular position with a title 
other than president, vice-president, secretary-treasurer, or executive 
board member within the definition of ``officer'' cannot be precisely 
defined. They are the functions typically performed by officers holding 
these titles in current labor union practice. Decisions in each case 
will require a practical judgment. As a general rule, a person will be 
regarded as being authorized to perform the functions of president if he 
is the chief or principal executive officer of the labor organization. 
Similarly, he will be regarded as being authorized to perform the 
functions of treasurer if he has principal responsibility for control 
and management of the organization's funds and fiscal operation. A 
member of any group, committee, or board which is vested with broad 
governing or policymaking authority will be regarded as a member of an 
``executive board or similar governing body.'' The name or title that 
the labor organization assigns to the position is not controlling.
    (b) The purpose of the election requirement of the Act is to assure 
that persons in positions of control in labor organizations will be 
responsive to the desires of the members. \18\ Professional and other 
staff members of the labor

[[Page 176]]

organization who do not determine the organization's policies or carry 
on its executive functions and who are employed merely to implement 
policy decisions and managerial directives established by the governing 
officials of the organization are not officers and are not required to 
be elected.
---------------------------------------------------------------------------

    \18\ See, for example, S. Rept. 187, 86th Cong., 1st sess., p. 7.
---------------------------------------------------------------------------



Sec. 452.21  Members of executive board.

    The phrase ``a member of its executive board or similar governing 
body'' refers to a member of a unit identified as an executive board or 
a body, whatever its title, which is vested with functions normally 
performed by an executive board. Members of a committee which is 
actually the executive board or similar governing body of the union are 
considered officers within the meaning of section 3(n) of the Act even 
if they are not so designated by the union's constitution and bylaws. 
For example, members of an ``Executive-Grievance Committee'' which 
exercises real governing powers are officers under the Act. However, it 
should be noted that committee membership alone will not ordinarily be 
regarded as an indication of officer status, unless the committee or its 
members meet the requirements contained in section 3(n) of the Act.



Sec. 452.22  Delegates to a convention.

    Under certain circumstances, delegates to a convention of a national 
or international labor organization, or to an intermediate body, must be 
elected by secret ballot among the members in good standing of the labor 
organization they represent even though such delegates are not 
``officers'' of the organization. Such election is required by the Act 
\19\ when the delegates are to nominate or elect officers of a national 
or international labor organization, or of an intermediate body. There 
is, of course, no requirement that delegates be elected in accordance 
with the provisions of title IV if they do not nominate or elect 
officers, unless delegates are designated as ``officers'' in the union's 
constitution and bylaws or unless, by virtue of their position, they 
serve as members of the executive board or similar governing body of the 
union.
---------------------------------------------------------------------------

    \19\ Act, sec. 401(a) and 401(d) (29 U.S.C. 481).
---------------------------------------------------------------------------



               Subpart D_Frequency and Kinds of Elections



Sec. 452.23  Frequency of elections.

    The Act requires that all national and international labor 
organizations (other than federations of such labor organizations) elect 
their officers not less often than every five years. Officers of 
intermediate bodies, such as general committees, system boards, joint 
boards, joint councils, conferences, and certain districts, district 
councils and similar organizations, must be elected at least every four 
years, and officers of local labor organizations not less often than 
every three years.



Sec. 452.24  Terms of office.

    The prescribed maximum period of three, four, or five years is 
measured from the date of the last election. \20\ It would not be 
consistent with these provisions of the Act for officers elected for the 
maximum terms allowable under the statute to remain in office after the 
expiration of their terms without a new election. Failure to hold an 
election for any office after the statutory period has expired 
constitutes a continuing violation of the Act, which may be brought to 
the attention of the Secretary in the form of a complaint filed in 
accordance with the appropriate procedure. Title IV establishes only 
maximum time intervals between elections for officers. Labor 
organizations covered by these provisions may hold elections of officers 
with greater frequency than the specified maximum period. For example, a 
local labor organization is required to hold an election of officers at 
least once every three years, but it must hold an election every year if 
its governing rules so provide. It should be noted, moreover, that the 
provisions of title IV apply to all regular elections of officers in 
labor organizations subject

[[Page 177]]

to the Act. Thus, if a labor organization chooses to hold elections of 
officers more frequently than the statutory maximum intervals, it must 
observe the minimum standards set forth in title IV for the conduct of 
such elections.
---------------------------------------------------------------------------

    \20\ See Sec. 452.14 for a discussion of the selection of officers 
in a new or newly-merged labor organization.
---------------------------------------------------------------------------



Sec. 452.25  Vacancies in office.

    Title IV governs the regular periodic elections of officers in labor 
organizations subject to the Act. No requirements are imposed with 
respect to the filling by election or other method of any particular 
office which may become vacant between such regular elections. If, for 
example, a vacancy in office occurs in a local labor organization, it 
may be filled by appointment, by automatic succession, or by a special 
election which need not conform to the provisions of title IV. The 
provisions of section 504 of the Act, which prohibit certain persons 
from holding office, are applicable to such situations. While the 
enforcement procedures of section 402 are not available to a member in 
connection with the filling of an interim vacancy, remedies may be 
available to an aggrieved member under section 102 of the Act or under 
any pertinent State or local law.



Sec. 452.26  Elections in local labor organizations.

    Local labor organizations must conduct their regular elections of 
officers by secret ballot among the members in good standing. All 
members in good standing of the local labor organization must be given 
an opportunity to vote directly for candidates to fill the offices that 
serve them. Indirect election of officers of a local labor organization 
would violate section 401(b) of the Act. For example, a procedure 
whereby the local's membership elects an executive board or some similar 
body by secret ballot which in turn selects (either from among its own 
membership or from the local's membership at large) the persons to fill 
specific offices would not comply with the Act. \21\ Similarly, the 
election of a chief steward by the shop stewards would violate the Act 
if the chief steward, by virtue of that position, also serves as a 
member of the executive board, since members of the executive board must 
be elected directly by secret ballot among the members in good standing.
---------------------------------------------------------------------------

    \21\ Wirtz v. Independent Petroleum Workers of America, 75 LRRM 
2340, 63 L.C. ]11,190 (N.D. Ind. 1970).
---------------------------------------------------------------------------



Sec. 452.27  National, international organizations, and intermediate bodies.

    The officers of a national or international labor organization or of 
an intermediate body must be elected either directly by secret ballot 
among the members in good standing or indirectly by persons acting in a 
representative capacity who have been elected by secret ballot among all 
members in good standing. \22\
---------------------------------------------------------------------------

    \22\ See Sec. 452.119 and following for discussion of indirect 
elections.
---------------------------------------------------------------------------



Sec. 452.28  Unopposed candidates.

    An election of officers or delegates that would otherwise be 
required by the Act to be held by secret ballot need not be held by 
secret ballot when all candidates are unopposed and the following 
conditions are met: (a) The union provides a reasonable opportunity for 
nominations; (b) write-in votes are not permitted, as evidenced by 
provisions in the constitution and bylaws, by an official interpretation 
fairly placed on such documents, or by established union practice; and 
(c) the union complies with all other provisions of title IV.



Sec. 452.29  Primary elections.

    Where a union holds primary elections or similar procedures for 
eliminating candidates prior to the final vote in connection with 
regular elections subject to these provisions, the primary election or 
other procedure must be conducted in accordance with the same standards 
required under the Act for the final election.



Sec. 452.30  Run-off elections.

    A run-off election must meet the standards set forth in title IV if 
the original election was subject to the requirements of the Act. For 
example, if the run-off is to be held at the same meeting as the 
original election, the original notice of election must have

[[Page 178]]

so stated and all records pertaining to the run-off must be retained.



Sec. 452.31  One candidate for several offices.

    Where a union constitution or other validly adopted rule provides 
that a single elected officer will perform the functions of more than 
one office, a separate election need not be held for each office.



        Subpart E_Candidacy for Office; Reasonable Qualifications



Sec. 452.32  Persons who may be candidates and hold office; secret 
ballot elections.

    Section 401(e) provides that in any election of officers required by 
the Act which is held by secret ballot, every member in good standing 
with the exceptions explained in sections following shall be eligible to 
be a candidate and to hold office. This provision is applicable not only 
to the election of officers in local labor organizations, but also to 
elections of officers in national or international and intermediate 
labor organizations where those elections are held by secret ballot 
referendum among the members, and to the election of delegates to 
conventions at which officers will be elected.



Sec. 452.33  Persons who may be candidates and hold office; elections 
at conventions.

    Where elections of national or international labor organizations or 
of intermediate bodies are held at a convention of delegates elected by 
secret ballot, protection of the right to be a candidate and to hold 
office is afforded by the requirement in section 401(f) that the 
convention be conducted in accordance with the constitution and bylaws 
of the labor organization insofar as they are not inconsistent with the 
provisions of title IV. If members in good standing are denied the right 
to be candidates by the imposition of unreasonable qualifications on 
eligibility for office such qualifications would be inconsistent with 
the provisions of title IV.



Sec. 452.34  Application of section 504, LMRDA.

    The eligibility of members of labor organizations to be candidates 
and to hold office in such organizations is subject only to the 
provisions of section 504(a), which bars individuals convicted of 
certain crimes from holding office in labor organizations \23\ and to 
reasonable qualifications uniformly imposed. A person who is barred from 
serving in union office by section 504(a) is not eligible to be a 
candidate. However, a labor organization may permit a person who is 
barred from holding union office by section 504(a) to be a candidate for 
office if the section 504 disability will terminate by the customary 
date for the installation of officers. A labor organization may within 
reasonable limits adopt stricter standards than those contained in 
section 504(a) by extending the period of disability or by barring from 
union office persons who have been convicted of crimes other than those 
specified.
---------------------------------------------------------------------------

    \23\ The disabling crimes set forth in the Act, sec. 504(a), as 
amended by sec. 803 of the Comprehensive Crime Control Act of 1984, 
Public Law 98-473, (29 U.S.C. 504) are robbery, bribery, extortion, 
embezzlement, grand larceny, burglary, arson, violation of narcotics 
laws, murder, rape, assault with intent to kill, assault which inflicts 
grievous bodily injury, or a violation of title II or III of this Act, 
any felony involving abuse or misuse of a position or employment in a 
labor organization or employee benefit plan to seek or obtain an illegal 
gain at the expense of the members of the labor organization or the 
beneficiaries of the employee benefit plan, or conspiracy to commit any 
such crimes or attempt to commit any such crimes or a crime in which any 
of the foregoing crimes is an element.''
    Note: The U.S. Supreme Court, on June 7, 1965, held unconsitutional 
as a bill of attainder the section 504 provision which imposes criminal 
sanctions on Communist Party members for holding union office; U.S. v. 
Brown, 381 U.S. 437.

[38 FR 18324, July 9, 1973, as amended at 50 FR 31311, Aug. 1, 1985]



Sec. 452.35  Qualifications for candidacy.

    It is recognized that labor organizations may have a legitimate 
institutional interest in prescribing minimum standards for candidacy 
and officeholding in the organization. On the

[[Page 179]]

other hand, a dominant purpose of the Act is to ensure the right of 
members to participate fully in governing their union and to make its 
officers responsive to the members. A basic assumption underlying the 
concept of ``free and democratic elections,'' is that voters will 
exercise common sense and good judgment in casting their ballots. In 
union elections as in political elections, the good judgment of the 
members in casting their votes should be the primary determinant of 
whether a candidate is qualified to hold office. Therefore, restrictions 
placed on the right of members to be candidates must be closely 
scrutinized to determine whether they serve union purposes of such 
importance, in terms of protecting the union as an institution, as to 
justify subordinating the right of the individual member to seek office 
and the interest of the membership in a free, democratic choice of 
leaders.



Sec. 452.36  Reasonableness of qualifications.

    (a) The question of whether a qualification is reasonable is a 
matter which is not susceptible of precise definition, and will 
ordinarily turn on the facts in each case. However, court decisions in 
deciding particular cases have furnished some general guidelines. The 
Supreme Court in Wirtz v. Hotel, Motel and Club Employees Union, Local 
6, 391 U.S. 492 at 499 (1968) held that:

    Congress plainly did not intend that the authorization in section 
401(e) of `reasonable qualifications uniformly imposed' should be given 
a broad reach. The contrary is implicit in the legislative history of 
the section and in its wording that `every member in good standing shall 
be eligible to be a candidate and to hold office * * *.' This conclusion 
is buttressed by other provisions of the Act which stress freedom of 
members to nominate candidates for Office. Unduly restrictive candidacy 
qualifications can result in the abuses of entrenched leadership that 
the LMRDA was expressly enacted to curb. The check of democratic 
elections as a preventive measure is seriously impaired by candidacy 
qualifications which substantially deplete the ranks of those who might 
run in opposition to incumbents.


Union qualifications for office should not be based on assumptions that 
certain experience or qualifications are necessary. Rather it must be 
assumed that the labor organization members will exercise common sense 
and judgment in casting their ballots. ``Congress' model of democratic 
elections was political elections in this country'' (Wirtz v. Local 6, 
391 U.S. at 502) and a qualification may not be required without a 
showing that citizens assumed to make discriminating judgments in public 
elections cannot be relied on to make such judgments when voting as 
union members.
    (b) Some factors to be considered, therefore, in assessing the 
reasonableness of a qualification for union office are:
    (1) The relationship of the qualification to the legitimate needs 
and interests of the union;
    (2) The relationship of the qualification to the demands of union 
office;
    (3) The impact of the qualification, in the light of the 
Congressional purpose of fostering the broadest possible participation 
in union affairs;
    (4) A comparison of the particular qualification with the 
requirements for holding office generally prescribed by other labor 
organizations; and
    (5) The degree of difficulty in meeting a qualification by union 
members.



Sec. 452.37  Types of qualifications.

    Ordinarily the following types of requirements may be considered 
reasonable, depending on the circumstances in which they are applied and 
the effect of their application:
    (a) Period of prior membership. It would ordinarily be reasonable 
for a local union to require a candidate to have been a member of the 
organization for a reasonable period of time, not exceeding two years, 
before the election. However, if a member is involuntarily compelled to 
transfer from one local to another, such a requirement would not be 
reasonable if he is not given credit for his prior period of membership.
    (b) Continuity of good standing. A requirement of continuous good 
standing based on punctual payment of dues will be considered a 
reasonable qualification only if (1) it provides a reasonable grace 
period during which members

[[Page 180]]

may make up missed payments without loss of eligibility for office, \24\ 
and (2) the period of time involved is reasonable. What are reasonable 
periods of time for these purposes will depend upon the circumstances. 
Section 401(e) of the Act provides that a member whose dues have been 
withheld by the employer for payment to the labor organization pursuant 
to his voluntary authorization provided for in a collective bargaining 
agreement may not be declared ineligible to vote or be a candidate for 
office by reason of alleged delay or default in the payment of dues. If 
during the period allowed for payment of dues in order to remain in good 
standing, a member on a dues checkoff system has no earnings from which 
dues can be withheld, section 401(e) does not relieve the member of the 
responsibility of paying his dues in order to remain in good standing.
---------------------------------------------------------------------------

    \24\ In Goldberg v. Amarillo General Drivers, Teamsters Local 577, 
214 F. Supp. 74 (N.D. Tex. 1963), the disqualification of five nominees 
for union office for failure to satisfy a constitutional provision 
requiring candidates for office to have maintained continuous good 
standing for two years by paying their dues on or before the first 
business day of the current month, in advance, was held to be 
unreasonable. See also Wirtz v. Local Unions No. 9, 9-A and 9-B, 
International Union of Operating Engineers, 254 F. Supp. 980 (D. Colo. 
1965), aff'd. 366 F. 2d 911 (CA 10 1966), vacated as moot 387 U.S. 96 
(1967).
---------------------------------------------------------------------------



Sec. 452.38  Meeting attendance requirements.

    (a) It may be reasonable for a labor organization to establish a 
requirement of attendance at a specified number of its regular meetings 
during the period immediately preceding an election, in order to insure 
that candidates have a demonstrated interest in and familiarity with the 
affairs of the organization. In the past, it was ordinarily considered 
reasonable to require attendance at no more than 50 percent of the 
meetings over a period not exceeding two years. Experience has 
demonstrated that it is not feasible to establish arbitrary guidelines 
for judging the reasonableness of such a qualification. Its 
reasonableness must be gauged in the light of all the circumstances of 
the particular case, including not only the frequency of meetings, the 
number of meetings which must be attended and the period of time over 
which the requirement extends, but also such factors as the nature, 
availability and extent of excuse provisions, whether all or most 
members have the opportunity to attend meetings, and the impact of the 
rule, i.e., the number or percentage of members who would be rendered 
ineligible by its application. \25\
---------------------------------------------------------------------------

    \25\ If a meeting attendance requirement disqualifies a large 
portion of members from candidacy, that large antidemocratic effect 
alone may be sufficient to render the requirement unreasonable. In Doyle 
v. Brock, 821 F.2d 778 (D.C. Circuit 1987), the court held that the 
impact of a meeting attendance requirement which disqualified 97% of the 
union's membership from candidacy was by itself sufficient to make the 
requirement unreasonable notwithstanding any of the other factors set 
forth in 29 CFR 452.38(a).
---------------------------------------------------------------------------

    (a--1) In Steelworkers, Local 3489 v. Usery, 429 U.S. 305, 94 LRRM 
2203, 79 L.C. ] 11,806 (1977), the Supreme Court found that this 
standard for determining validity of meeting attendance qualifications 
was the type of flexible result that Congress contemplated when it used 
the word ``reasonable.'' The Court concluded that Congress, in 
guaranteeing every union member the opportunity to hold office, subject 
only to ``reasonable qualifications,'' disabled unions from establishing 
eligibility qualifications as sharply restrictive of the openness of the 
union political process as the Steelworkers' attendance rule. The rule 
required attendance at fifty percent of the meetings for three years 
preceding the election unless prevented by union activities or working 
hours, with the result that 96.5 percent of the members were ineligible.
    (b) Other guidance is furnished by lower court decisions which have 
held particular meeting attendance requirements to be unreasonable under 
the following circumstances: One meeting during each quarter for the 
three years preceding nomination, where the effect was to disqualify 99 
percent of the membership (Wirtz v. Independent Workers Union of 
Florida, 65 LRRM 2104, 55 L.C. par. 11,857 (M.D. Fla., 1967)); 75 
percent of the meetings held over a two-year period, with absence 
excused only for work or illness, where over 97

[[Page 181]]

percent of the members were ineligible (Wirtz v. Local 153, Glass Bottle 
Blowers Ass'n, 244 F. Supp. 745 (W.D. Pa., 1965), order vacating 
decision as moot, 372 F. 2d 86 (C.A. 3 1966), reversed 389 U.S. 463; 
decision on remand, 405 F.2d 176 (C.A. 3 1968)); Wirtz v. Local 262, 
Glass bottle Blowers Ass'n., 290 F. Supp. 965 (N.D. Cal., 1968)); 
attendance at each of eight meetings in the two months between 
nomination and election, where the meetings were held at widely 
scattered locations within the State (Hodgson v. Local Union No. 624 A-
B, International Union of Operating Engineers, 80 LRRM 3049, 68 L.C. 
par. 12,816 (S.D. Miss. Feb. 19, 1972)); attendance at not less than six 
regular meetings each year during the twenty-four months prior to an 
election which has the effect of requiring attendance for a period that 
must begin no later than eighteen months before a biennial election 
(Usery v. Local Division 1205, Amalgamated Transit Union, 545 F. 2d 1300 
(C.A. 1, 1976)).

[38 FR 18324, July 3, 1973; as amended at 42 FR 39105, Aug. 2, 1977; 42 
FR 41280, Aug. 16, 1977; 42 FR 45306, Sept. 9, 1977; 50 FR 31311, Aug. 
1, 1985; 60 FR 57178, Nov. 14, 1995]



Sec. 452.39  Participation in insurance plan.

    In certain circumstances, in which the duties of a particular office 
require supervision of an insurance plan in more than the formal sense, 
a union may require candidates for such office to belong to the plan.



Sec. 452.40  Prior office holding.

    A requirement that candidates for office have some prior service in 
a lower office is not considered reasonable. \26\
---------------------------------------------------------------------------

    \26\ Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 
U.S. 492 at 504. The Court stated that the union, in applying such a 
rule, ``* * * assumes that rank and file union members are unable to 
distinguish qualified from unqualified candidates for particular offices 
without a demonstration of a candidate's performance in other offices. 
But Congress' model of democratic elections was political elections in 
this Country, and they are not based on any such assumption. Rather, in 
those elections the assumption is that voters will exercise common sense 
and judgment in casting their ballots. Local 6 made no showing that 
citizens assumed to make discriminating judgments in public elections 
cannot be relied on to make such judgments when, voting as union members 
* * *.''
---------------------------------------------------------------------------



Sec. 452.41  Working at the trade.

    (a) It would ordinarily be reasonable for a union to require 
candidates to be employed at the trade or even to have been so employed 
for a reasonable period. In applying such a rule an unemployed member is 
considered to be working at the trade if he is actively seeking such 
employment. Such a requirement should not be so inflexible as to 
disqualify those members who are familiar with the trade but who because 
of illness, economic conditions, or other good reasons are temporarily 
not working.
    (b) It would be unreasonable for a union to prevent a person from 
continuing his membership rights on the basis of failure to meet a 
qualification which the union itself arbitrarily prevents the member 
from satisfying. If a member is willing and able to pay his union dues 
to maintain his good standing and his right to run for office, it would 
be unreasonable for the union to refuse to accept such dues merely 
because the person is temporarily unemployed. Where a union constitution 
requires applicants for membership to be actively employed in the 
industry served by the union, a person who becomes a member would not be 
considered to forfeit his membership in the union or any of the 
attendant rights of membership merely because he is discharged or laid 
off.
    (c) Ordinarily members working part-time at the trade may not for 
that reason alone be denied the right to run for office.
    (d) A labor organization may postpone the right to run for office of 
members enrolled in a bona fide apprenticeship program until such 
members complete their apprenticeship.



Sec. 452.42  Membership in particular branch or segment of the union.

    A labor organization may not limit eligibility for office to 
particular branches or segments of the union where such restriction has 
the effect of depriving those members who are not

[[Page 182]]

in such branch or segment of the right to become officers of the union. 
\27\
---------------------------------------------------------------------------

    \27\ Hodgson v. Local Unions No. 18, etc., IUOE, 440 F. 2d 485 (C.A. 
6), cert. den. 404 U.S. 852 (1971); Hodgson v. Local 610, Unit. Elec. 
Radio & Mach. Work. of Am., 342 F. Supp. 1344 (W.D. Pa. 1972).
---------------------------------------------------------------------------



Sec. 452.43  Representative categories.

    In the case of a position which is representative of a unit defined 
on a geographic, craft, shift, or similar basis, a labor organization 
may by its constitution or bylaws limit eligibility for candidacy and 
for holding office to members of the represented unit. For example, a 
national or international labor organization may establish regional 
vice-presidencies and require that each vice-president be a member of 
his respective region. This kind of limitation would not be considered 
reasonable, however, if applied to general officers such as the 
president, vice-president, recording secretary, financial secretary, and 
treasurer. If eligibility of delegates to a convention which will elect 
general officers is limited to special categories of members, all such 
categories within the organization must be represented.



Sec. 452.44  Dual unionism.

    While the Act does not prohibit a person from maintaining membership 
or holding office in more than one labor organization, it would be 
considered reasonable for a union to bar from candidacy for office 
persons who hold membership in a rival labor organization.



Sec. 452.45  Multiple office holding.

    An officer may hold more than one office in a labor organization so 
long as this is consistent with the constitution and bylaws of the 
organization.



Sec. 452.46  Characteristics of candidate.

    A labor organization may establish certain restrictions on the right 
to be a candidate on the basis of personal characteristics which have a 
direct bearing on fitness for union office. A union may, for example, 
require a minimum age for candidacy. However, a union may not establish 
such rules if they would be inconsistent with any other Federal law. 
Thus, it ordinarily may not limit eligibility for office to persons of a 
particular race, color, religion, sex, or national origin since this 
would be inconsistent with the Civil Rights Act of 1964. \28\ Nor may it 
establish a general compulsory retirement age or comparable age 
restriction on candidacy since this would be inconsistent with the Age 
Discrimination in Employment Act of 1967, as amended. A union may not 
require candidates for office to be registered voters and to have voted 
in public elections during the year preceding their nominations. Nor may 
it require that candidates have voted in the previous union election to 
be eligible. Such restrictions may not be said to be relevant to the 
members' fitness for office.
---------------------------------------------------------------------------

    \28\ Shultz v. Local 1291, International Longshoremen's Association, 
338 F. Supp. 1204 (E.D. Pa.), aff'd, 461 F.2d 1262 (C.A. 3 1972).

[53 FR 8751, Mar. 17, 1988, as amended at 53 FR 23233, June 21, 1988]



Sec. 452.47  Employer or supervisor members.

    Inasmuch as it is an unfair labor practice under the Labor 
Management Relations Act (LMRA) for any employer (including persons 
acting in that capacity) to dominate or interfere with the 
administration of any labor organization, it follows that employers, 
while they may be members, may not be candidates for office or serve as 
officers. Thus, while it is recognized that in some industries, 
particularly construction, members who become supervisors, or 
contractors traditionally keep their union membership as a form of job 
security or as a means of retaining union benefits, such persons may not 
be candidates for or hold office. \29\ Whether a restriction on 
officeholding by members who are group leaders or others performing some 
supervisory duties is reasonable depends on the particular 
circumstances. For instance, if such persons might be considered 
``supervisors'' \30\ under the LMRA, their

[[Page 183]]

right to be candidates under the Act may be limited. Another factor in 
determining the reasonableness of a ban on such persons is the position 
(if any) of the NLRB on the status of the particular employees involved. 
If, for example, the NLRB has determined that certain group leaders are 
part of the bargaining unit, it might be unreasonable for the union to 
prohibit them from running for office. An overall consideration in 
determining whether a member may fairly be denied the right to be a 
candidate for union office as an employer or supervisor is whether there 
is a reasonable basis for assuming that the person involved would be 
subject to a conflict of interest in carrying out his representative 
duties for employees and rank and file union members.
---------------------------------------------------------------------------

    \29\ See Nassau and Suffolk Contractors' Association, 118 NLRB No. 
19 (1957). See also Local 636, Plumbers v. NLRB, 287 F.2d 354 (C.A. D.C. 
1961).
    \30\ Under section 2(11) of the Labor Management Relations Act, 
supervisors include individuals ``having authority, in the interest of 
the employer, to hire, transfer, suspend, lay off, recall, promote, 
discharge, assign, reward, or discipline other employees, or responsibly 
to direct them, or to adjust their grievances, or effectively to 
recommend such action, if in connection with the foregoing the exercise 
of such authority is not of a merely routine or clerical nature, but 
requires the use of independent judgment.''

[38 FR 18324, July 3, 1973, as amended at 39 FR 37360, Oct. 21, 1974]



Sec. 452.48  Employees of union.

    A labor organization may in its constitution and bylaws prohibit 
members who are also its full-time non-elective employees from being 
candidates for union office, because of the potential conflict of 
interest arising from the employment relationship which could be 
detrimental to the union as an institution.



Sec. 452.49  Other union rules.

    (a) Unions may establish such other reasonable rules as are 
necessary to protect the members against leaders who may have committed 
serious offenses against the union. For example, a union may, after 
appropriate proceedings, bar from office persons who have 
misappropriated union funds, even if such persons were never indicted 
and convicted in a court of law for their offenses. Of course, the union 
would have to provide reasonable precautions to insure that no member is 
made ineligible to hold office on the basis of unsupported allegations 
and that any rights guaranteed him by the constitution and bylaws are 
protected. Similarly, a union may require an elected officer to sign an 
affidavit averring that he is not barred from serving as an officer by 
the provisions of section 504 of the Act since the union and its 
officers may not permit a person to serve as an officer if he is so 
barred (see footnote 23).
    (b) It would not violate the Act for a union to prohibit successive 
terms in office or to limit the number of years an officer may serve. 
Such rules are intended to encourage as many members as possible to seek 
positions of leadership in the organization.



Sec. 452.50  Disqualification as a result of disciplinary action.

    Section 401(e) was not intended to limit the right of a labor 
organization to take disciplinary action against members guilty of 
misconduct. So long as such action is conducted in accordance with 
section 101(a)(5), a union may, for example, if its constitution and 
bylaws so provide, bar from office for a period of time any member who 
is guilty of specific acts, such as strikebreaking, detrimental to the 
union as an institution. However, if a union has improperly disciplined 
a member and barred him from candidacy, the Secretary may, in an 
appropriate case, treat him as a member in good standing entitled to all 
of the rights of members guaranteed by title IV.



Sec. 452.51  Declaration of candidacy.

    A union may not adopt rules which in their effect discourage or 
paralyze any opposition to the incumbent officers. Therefore, it would 
not be a reasonable qualification to require members to file a 
declaration of candidacy several months in advance of the nomination 
meeting since such a requirement would have such effect and ``serves no 
reasonable purpose which cannot otherwise be satisfied without resort to 
this procedure.'' \31\
---------------------------------------------------------------------------

    \31\ Wirtz v. Local 30, IUOE, 242 F. Supp. 631 (S.D. N.Y. 1965) 
reversed as moot 366 F.2d 438 (C.A. 2, 1966), reh. den. 366 F.2d 438.

---------------------------------------------------------------------------

[[Page 184]]



Sec. 452.52  Filing fee.

    It would be unreasonable to require candidates for office to pay a 
filing fee because a fee limits the right of members to a reasonable 
opportunity to nominate the candidates of their choice and there is no 
objective relationship between the requirement and the ability to 
perform the duties of the office.



Sec. 452.53  Application of qualifications for office.

    Qualifications for office which may seem reasonable on their face 
may not be proper if they are applied in an unreasonable manner or if 
they are not applied in a uniform way. An essential element of 
reasonableness is adequate advance notice to the membership of the 
precise terms of the requirement. A qualification which is not part of 
the constitution and bylaws or other duly enacted rules of the 
organization may not be the basis for denial of the right to run for 
office, unless required by Federal or State law. \32\ Qualifications 
must be specific and objective. They must contain specific standards of 
eligibility by which any member can determine in advance whether or not 
he is qualified to be a candidate. For example, a constitutional 
provision which states that ``a candidate shall not be eligible to run 
for office who intends to use his office as a cloak to effect purposes 
inimical to the scope and policies of the union'' would not be a 
reasonable qualification within the meaning of section 401(e) because it 
is so general as to preclude a candidate from ascertaining whether he is 
eligible and would permit determinations of eligibility based on 
subjective judgments. Further, such a requirement is by its nature not 
capable of being uniformly imposed as required by section 401(e).
---------------------------------------------------------------------------

    \32\ Wirtz v. Local Union 559, United Brotherhood of Carpenters and 
Joiners of America, 61 LRRM 2618, 53 L.C. ]11.044 (W.D. Ky. 1966); 
Hodgson v. Longshoremen's Local 1655 New Orleans Dray Clerks, 79 LRRM 
2893, 67 L.C. ]12,466 (E.D. La. January 5, 1972).
---------------------------------------------------------------------------



Sec. 452.54  Retroactive rules.

    (a) The reasonableness of applying a newly adopted restriction on 
candidacy retroactively depends in part upon the nature of the 
requirement. It would be unreasonable for a labor organization to 
enforce eligibility requirements which the members had no opportunity to 
satisfy. For example, it would not be reasonable for a union to apply a 
newly adopted meeting attendance requirement retroactively since members 
would have no opportunity to comply with such requirement prior to its 
effective date. \33\ When such a rule is in effect the membership is 
entitled to advance notice of the requirements of the rule and of the 
means to be used in verifying attendance. It would not be unreasonable, 
however, for a union to adopt and enforce a rule disqualifying persons 
convicted of a felony from being candidates or holding office.
---------------------------------------------------------------------------

    \33\ Hodgson v. Longshoremen's Local 1655, New Orleans Dray Clerks, 
79 LRRM 2893, 67 L.C. ]12,466 (E.D. La. January 5, 1972)
---------------------------------------------------------------------------

    (b) It would not be proper for a labor organization to amend its 
constitution after an election to make eligible a person who had been 
elected but who was not eligible at the time of the election.



                    Subpart F_Nominations for Office



Sec. 452.55  Statutory provisions concerning nomination.

    In elections subject to the provisions of title IV a reasonable 
opportunity must be afforded for the nomination of candidates. Although 
the Act does not prescribe particular forms of nomination procedures, it 
does require that the procedures employed be reasonable and that they 
conform to the provisions of the labor organization's constitution and 
bylaws insofar as they are not inconsistent with the provisions of title 
IV.



Sec. 452.56  Notice.

    (a) To meet this requirement, the labor organization must give 
timely notice reasonably calculated to inform all members of the offices 
to be filled in the election as well as the time, place, and form for 
submitting nominations. Such notice should be distinguished from the 
notice of election, discussed in Sec. 452.99. Notice of nominations 
need not necessarily be given at

[[Page 185]]

least 15 days before nominations are held, nor is it required to be 
given by mail. In an election which is to be held by secret ballot, 
accordingly, notice of nominations may be given in any manner reasonably 
calculated to reach all members in good standing and in sufficient time 
to permit such members to nominate the candidates of their choice, so 
long as it is in accordance with the provisions of the labor 
organization's constitution or bylaws. Mailing such notice to the last 
known address of each member within a reasonable time prior to the date 
for making nominations would satisfy this requirement. Likewise, timely 
publication in the union newspaper with sufficient prominence to be seen 
by all members would be adequate notice. The method of making 
nominations, whether by mail, petition, or at meetings, could affect the 
determination of the timeliness of the notice. The nomination notice may 
be combined with the election notice if the requirements of both are 
met. Posting of a nomination notice may satisfy the requirement of a 
reasonable opportunity for making nominations if such posting is 
reasonably calculated to inform all members in good standing in 
sufficient time to permit such members to nominate the candidates of 
their choice.
    (b) The requirement of a reasonable opportunity for the nomination 
of candidates has been met only when the members of a labor organization 
are fully informed of the proper method of making such nominations.



Sec. 452.57  Procedures for nomination.

    (a) Since the Act does not prescribe particular procedures for the 
nomination of candidates, the labor organization is free to employ any 
method that will provide a reasonable opportunity for making 
nominations. There are various methods which, if properly and fairly 
employed, would be considered reasonable under the Act. For example, 
nominations may be by petition, or from the floor at a nomination 
meeting.
    (b) Whether a particular procedure is sufficient to satisfy the 
requirements of the Act is a question which will depend upon the 
particular facts in each case. While a particular procedure may not on 
its face violate the requirements of the Act, its application in a given 
instance may make nomination so difficult as to deny the members a 
reasonable opportunity to nominate.



Sec. 452.58  Self-nomination.

    A system of self-nomination, if this is the only method for making 
nominations, deprives union members of a reasonable opportunity to 
nominate candidates and thus is inconsistent with the provisions of 
title IV. \34\ Self-nomination is permissible only if the members are 
afforded additional methods whereby they may nominate the candidates of 
their choice.
---------------------------------------------------------------------------

    \34\ See Wirtz v. National Maritime Union of America, 399 F.2d 544 
(C.A. 2 1968).
---------------------------------------------------------------------------



Sec. 452.59  Presence of nominee.

    A requirement that members must be present at the nomination meeting 
in order to be nominated for office might be considered unreasonable in 
certain circumstances; for example, in the absence of a provision for an 
alternative method under which a member who is unavoidably absent from 
the nomination meeting may be nominated, such a restriction might be 
regarded as inconsistent with the requirement in section 401(e) that 
there be a reasonable opportunity to nominate and to be a candidate.



Sec. 452.60  Nominations for national, international or intermediate body 
office.

    (a) When officers of a national or international labor organization 
or of an intermediate body are to be elected by secret ballot among the 
members of the constituent local unions, it is not unreasonable for the 
organization to employ a nominating procedure whereby each local may 
nominate only one candidate for each office. When such a procedure is 
employed the organization may require that each candidate be nominated 
by a certain number of locals before his name will appear on the ballot. 
The reasonableness of the number of local union nominations or 
endorsements required depends upon the size and dispersion of the 
organization.

[[Page 186]]

    (b) Nominations for national, international or intermediate body 
office by locals or other subordinate organizations differ from primary 
elections in that they are not subject to all the technical requirements 
of secret ballot elections. \35\ However, where nominations are made by 
locals or other subordinate organizations fundamental safeguards must be 
observed including the right of members to vote for and support the 
candidates of their choice without improper interference.
---------------------------------------------------------------------------

    \35\ In Hodgson v. United Mine Workers of America, the Court 
directed that the nomination proceedings within the local unions be 
conducted by secret ballot and in accordance with the provisions of 
title IV. [80 LRRM 3451, 68 L.C. ]12,786 (D.D.C. June 15, 1972)]. This 
Order indicates that the use of secret ballot nominating procedures may 
be an appropriate remedial measure in a supervised election.
---------------------------------------------------------------------------



Sec. 452.61  Elimination contests--local unions.

    (a) A procedure in a local under which nominees compete in an 
elimination process to reduce the number of candidates in the final 
balloting is also part of the election process and must be conducted by 
secret ballot.
    (b) When such an elimination process is used it would be 
unreasonable for some nominees, such as those selected by a nominating 
committee, to be exempt from the process since they would thus be given 
an unfair advantage over other nominees.



Sec. 452.62  Disqualification of candidates; procedural reasons.

    A candidate who is otherwise eligible for office may not be 
disqualified because of the failure of a union officer to perform his 
duties which are beyond the candidate's control. For example, the 
failure of a local recording secretary to perform his duty to complete 
and forward a candidate's nomination certificate to the district may not 
be used as the basis for disqualifying the candidate.



Sec. 452.63  Nominations at conventions.

    In elections at conventions at which nominations are also made, 
delegates who have been elected by secret ballot must be given ample 
opportunity to nominate candidates on behalf of themselves or the 
members they represent. A union may adopt a rule limiting access to the 
convention floor to delegates. However, once the candidates have been 
nominated, they must be accorded equal opportunity to campaign. \36\ 
Where delegates are instructed by locals to nominate candidates, the 
constitution of the organization or the convention rules should provide 
a specific procedure for the implementation of nominating instructions 
issued by any local to its delegate.
---------------------------------------------------------------------------

    \36\ See Sec. 452.79.
---------------------------------------------------------------------------



Sec. 452.64  Write-in votes.

    The Act neither requires nor prohibits write-in candidacy or write-
in votes. These matters are governed by appropriate provisions of the 
union's constitution and bylaws, applicable resolutions, or the 
established practice of the union.



Sec. 452.65  Interval between nominations and election.

    The Act specifies no time interval between nominations and election. 
Thus, both may be scheduled to be held at the same meeting if, during a 
reasonable period prior to such nomination-election meeting, every 
member eligible to hold office who intends to run for office is afforded 
the protection provided in section 401(c), including sufficient 
opportunity to campaign for office.



                      Subpart G_Campaign Safeguards



Sec. 452.66  Statutory provisions.

    The opportunity for members to have a free, fair, and informed 
expression of their choices among candidates seeking union office is a 
prime objective of title IV of the Act. Voters can best be assured 
opportunity for an informed choice if certain campaign rights are 
guaranteed to candidates and their supporters. To this end, the statute 
provides that adequate safeguards to insure a fair election shall be 
provided, and states certain specific safeguards. These safeguards apply 
not only to

[[Page 187]]

candidates for officer positions as defined in the Act but also to 
candidates for delegate posts, if the delegates are to nominate or elect 
officers.



Sec. 452.67  Distribution of campaign literature.

    The Act imposes the duty on the union and its officers to comply 
with all reasonable requests of any candidate to distribute his campaign 
literature to the membership at his expense. When the organization or 
its officers authorize distribution of campaign literature on behalf of 
any candidate, similar distribution under the same conditions must be 
made for any other candidate, if he requests it. In order to avoid 
charges of disparity of treatment among candidates, it is advised that a 
union inform all candidates in advance of the conditions under which 
distribution will be made and promptly advise them of any change in 
those conditions.



Sec. 452.68  Distribution to less than full membership.

    Although section 401(c) specifies distribution to ``all members in 
good standing,'' a labor organization must also honor requests for 
distribution of literature to only a portion of the membership if such 
distribution is practicable. Each candidate may choose his own ways of 
campaigning for election according to his own ingenuity and resources. 
For example, some candidates for national or international union office 
may desire to limit distribution to delegates, but others may want to 
appeal directly to the membership or parts thereof in an effort to 
influence particular constituencies to choose delegates favorable to 
their candidacy.



Sec. 452.69  Expenses of campaign literature.

    Each candidate must be treated equally with respect to the expense 
of such distribution. Thus, a union and its officers must honor a 
candidate's request for distribution where the candidate is willing and 
able to bear the expense of such distribution. However, should the 
candidate be unable to bear such expense, there is no requirement that 
the union distribute the literature of the candidate free of charge. In 
the event the union distributes any candidate's literature without 
charge, however, all other candidates are entitled to have their 
literature distributed on the same basis. Since labor organizations have 
an affirmative duty to comply with all reasonable requests of any 
candidate to distribute campaign literature (at the candidate's 
expense), a union rule refusing all such distributions would not be 
proper, even though applied in a nondiscriminatory fashion. In view of 
the fact that expenses of distribution are to be borne by the candidate 
a labor organization may not refuse to distribute campaign literature 
merely because it may have a small staff which cannot handle such 
distribution for all candidates. If this is the case, the organization 
may employ additional temporary staff or contract the job to a 
professional mailer and charge the expense incurred to the candidates 
for whom the service is being rendered. The organization may require 
candidates to tender in advance the estimated costs of distributing 
their literature, if such requirement is applied uniformly.



Sec. 452.70  Contents of literature.

    The Act does not and unions may not regulate the contents of 
campaign literature which candidates may wish to have distributed by the 
union. This is left to the discretion of each candidate. The labor 
organization may not require that it be permitted to read a copy of the 
literature before it is sent out, nor may it censor the statements of 
the candidates in any way, even though the statement may include 
derogatory remarks about other candidates. Furthermore, a union's 
contention that mailing of certain campaign literature may constitute 
libel for which it may be sued has been held not to justify its refusal 
to distribute the literature, since the union is under a statutory duty 
to distribute the material. \37\
---------------------------------------------------------------------------

    \37\ See Philo v. Stellato, (E.D. Mich. Civil No. 21244, May 24, 
1961); Ansley v. Fulco, (Calif. Ct. of Appeal, First App. District, Div. 
Three, 1 Civil No. 29483, May 31, 1972).

---------------------------------------------------------------------------

[[Page 188]]



Sec. 452.71  Inspection of membership lists.

    (a) Each bona fide candidate for office has a right, once within 30 
days prior to any election in which he is a candidate, to inspect a list 
containing the names and last known addresses of all members of the 
labor organization who are subject to a collective bargaining agreement 
requiring membership therein as a condition of employment. The right of 
inspection does not include the right to copy the list but does include 
the right to compare it with a personal list of members. It is the 
intent of the Act that such membership lists be made available for 
inspection at the candidates' option any time within the 30-day period. 
The list is not required to be maintained continuously and may be 
compiled immediately before each election. The form in which the list is 
to be maintained is not specified by the Act. Thus, a card index system 
may satisfy the requirements of the Act. The list may be organized 
alphabetically or geographically, or by local in a national or 
international labor organization.
    (b) It is the duty of the labor organization and its officers to 
refrain from discrimination in favor of or against any candidate with 
respect to the use of lists of members. Thus, if a union permits any 
candidate to use such lists in any way other than the right of 
inspection granted by the Act, it must inform all candidates of the 
availability of the list for that purpose and accord the same privilege 
to all candidates who request it. Such privileges may include permitting 
inspection of the list where members are not subject to a collective 
bargaining agreement requiring membership as a condition of employment, 
inspecting the list more than once, or copying the list.

[38 FR 18324, July 9, 1973, as amended at 50 FR 31311, Aug. 1, 1985]



Sec. 452.72  Period of inspection.

    The Act specifies the maximum period during which the right of 
inspection of membership lists is to be granted. The opportunity to 
inspect the lists must be granted once during the 30-day period prior to 
the casting of ballots in the election. Thus, where a mail ballot system 
is employed under which ballots are returnable as soon as received by 
members, the right to inspect must be accorded within the 30-day period 
prior to the mailing of the ballots to members. It would be an 
unreasonable restriction to permit inspection of lists only after the 
ballots have been mailed or the balloting has commenced.



Sec. 452.73  Use of union funds.

    In the interest of fair union elections, section 401(g) of the Act 
places two limitations upon the use of labor organization funds derived 
from dues, assessments, or similar levy. These limitations are:
    (a) No such funds may be contributed or applied to promote the 
candidacy of any person in an election subject to title IV, either in an 
election within the organization expending the funds or in any other 
labor organization; and
    (b) No such funds may be used for issuing statements involving 
candidates in the election.

This section is not intended to prohibit a union from assuming the cost 
of distributing to the membership on an equal basis campaign literature 
submitted to the union by the candidates pursuant to the rights granted 
by section 401(c), as previously discussed, nor does it prohibit the 
expenditure of such funds for notices, factual statements of issues not 
involving candidates, and other expenses necessary for the holding of 
the election.



Sec. 452.74  Expenditures permitted.

    The Act does not prohibit impartial publication of election 
information. Thus, it would not be improper for a union to sponsor a 
debate at which all candidates for a particular office are afforded 
equal opportunity to express their views to the membership prior to an 
election. Similarly, a union may issue information sheets containing 
biographical data on all candidates so long as all candidates are given 
equal opportunity to submit such data.



Sec. 452.75  Union newspapers.

    The provisions of section 401(g) prohibit any showing of preference 
by a labor organization or its officers which is advanced through the 
use of union

[[Page 189]]

funds to criticize or praise any candidate. Thus, a union may neither 
attack a candidate in a union-financed publication nor urge the 
nomination or election of a candidate in a union-financed letter to the 
members. Any such expenditure regardless of the amount, constitutes a 
violation of section 401(g). \38\
---------------------------------------------------------------------------

    \38\ Hodgson v. Liquor Salesmen's Union, Local No. 2, 334 F.Supp. 
1369 (S.D. N.Y.) aff'd 444 F.2d 1344 (C.A. 2 1971); Shultz v. Local 
Union 6799, United Steelworkers, 426 F.2d 969 (C.A. 9 1970).
---------------------------------------------------------------------------



Sec. 452.76  Campaigning by union officers.

    Unless restricted by constitutional provisions to the contrary, 
union officers and employes retain their rights as members to 
participate in the affairs of the union, including campaigning 
activities on behalf of either faction in an election. However, such 
campaigning must not involve the expenditure of funds in violation of 
section 401(g). Accordingly, officers and employees may not campaign on 
time that is paid for by the union, nor use union funds, facilities, 
equipment, stationery, etc., to assist them in such campaigning. 
Campaigning incidental to regular union business would not be a 
violation.



Sec. 452.77  Permissible use of union funds.

    Certain uses of union funds are considered permissible under section 
401(g). For example, a court ruled that money of a subordinate union may 
be contributed to a committee formed to challenge the results of a 
national union election under title IV when such contributions are 
properly authorized by the members in an effort to pursue election 
remedies both within and outside the union. In holding such activity to 
be outside the prohibitions of section 401(g), although the committee 
was formed by defeated candidates and their supporters, the court stated 
that ``* * * It does not promote the candidacy of any person if an 
election is declared invalid by a court under title IV's procedure 
despite the fact that in the rerun election the candidates may be 
identical. Neither the winner nor the loser of the disputed election 
gains votes by the setting aside of the election. Such action is not a 
vote-getting device but merely returns the parties to their pre-election 
status; it does not place any candidate into office.'' \39\
---------------------------------------------------------------------------

    \39\ Retail Clerks Union, Local 648 v. Retail Clerks International 
Association, 299 F.Supp. 1012, 1024 (D.D.C. 1969).

[38 FR 18324, July 9, 1973, as amended at 63 FR 33780, June 19, 1998]



Sec. 452.78  Expenditures by employers.

    (a) As an additional safeguard, section 401(g) provides that no 
money of an employer is to be contributed or applied to promote the 
candidacy of any person in an election subject to the provisions of 
title IV. This includes indirect as well as direct expenditures. Thus, 
for example, campaigning by union stewards on company time with the 
approval of the employer would violate section 401(g) unless it can be 
shown that they are on legitimate work assignments, and that their 
campaign activities are only incidental to the performance of their 
assigned task and do not interfere with its performance. This 
prohibition against the use of employer money includes any costs 
incurred by an employer, or anything of value contributed by an 
employer, in order to support the candidacy of any individual in an 
election. It would not, however, extend to ordinary business practices 
which result in conferring a benefit, such as, for example, a discount 
on the cost of printing campaign literature which is made available on 
the same terms to other customers.
    (b) The prohibition against the use of employer money to support the 
candidacy of a person in any election subject to the provisions of title 
IV is not restricted to employers who employ members of the labor 
organization in which the election is being conducted, or who have any 
business or contractual relationship with the labor organization.



Sec. 452.79  Opportunity to campaign.

    There must be a reasonable period prior to the election during which 
office-seekers and their supporters may engage in the campaigning that 
the Act contemplates and guarantees.

[[Page 190]]

What is a reasonable period of time would depend upon the circumstances, 
including the method of nomination and the size of the union holding the 
election, both in terms of the number of members and the geographic area 
in which it operates. For example, a candidate for office in a local 
labor organization was improperly disqualified and then appealed to the 
international union which directed that his name be placed on the 
ballot. A complaint was considered properly filed alleging election 
violations because the candidate's name was restored to the ballot two 
days prior to the election so that he was denied an equal opportunity to 
campaign. Similarly, in a mail ballot election a union's delay in the 
distribution of campaign literature until after the ballots have been 
distributed and some have been cast would not satisfy the requirement to 
distribute such literature in compliance with a reasonable request. \40\ 
Such a delay would deny the candidate a reasonable opportunity to 
campaign prior to the election and would thus not meet the requirement 
for adequate safeguards to insure a fair election. Where access to the 
convention floor is limited exclusively to delegates at a convention at 
which officers are to be elected, there must, nevertheless, be equal 
opportunity for all nominees to campaign. Thus, if the privilege of 
addressing the convention is accorded to any of the nominees, it must be 
accorded to all nominees who request it, whether they are delegates or 
not.
---------------------------------------------------------------------------

    \40\ Wirtz v. American Guild of Variety Artists, 267 F. Supp. 527 
(S.D.N.Y. 1967).
---------------------------------------------------------------------------



Sec. 452.80  Bona fide candidates.

    A person need not be formally nominated in order to be a bona fide 
candidate entitled to exercise the rights mentioned in Sec. Sec. 452.67 
and 452.71. \41\ Thus, any qualified member seeking to be nominated and 
elected at a convention would be able to take advantage of the 
distribution rights even before the convention meets and thus attempt to 
influence members to select delegates favorable to his candidacy or to 
persuade the delegates to support his candidacy. A union may reasonably 
require that a person be nominated in order to be elected, but may not 
prevent a member who actively seeks office and is otherwise qualified 
from taking advantage of the campaign safeguards in the Act in an effort 
to gain the support necessary to be nominated.
---------------------------------------------------------------------------

    \41\ Yablonski v. United Mine Workers, 71 LRRM 2606, 60 L.C. 10,204 
(D.D.C. 1969).
---------------------------------------------------------------------------



Sec. 452.81  Rights in intermediate body elections.

    While the literal language in section 401(c) relating to 
distribution of campaign literature and to discrimination with respect 
to the use of membership lists would seem to apply only to national, 
international and local labor organizations, two United States District 
Courts have held that these provisions also apply to intermediate 
bodies. \42\ The Department of Labor considers these rulings to be 
consistent with the intent of Congress and, therefore, has adopted this 
position.
---------------------------------------------------------------------------

    \42\ Antal v. UMW District 5, 64 LRRM 2222, 54 L.C. 11,621 (W.D. Pa. 
1966); Schonfeld v. Rarback, 49 L.C. 19,039 (S.D.N.Y. 1964).
---------------------------------------------------------------------------



Sec. 452.82  Reprisal for exercising rights.

    A member has a right to support the candidate of his choice without 
being subject to penalty, discipline, or improper interference or 
reprisal of any kind by the labor organization conducting the election 
or any member thereof.



Sec. 452.83  Enforcement of campaign safeguards.

    Certain of the safeguards of section 401(c) are enforceable at the 
suit of any bona fide candidate. This special statutory right to sue is 
limited to the distribution of campaign literature by the labor 
organization and the forbearance of such organization from 
discrimination among candidates with respect to the use of membership 
lists. Of course, all title IV safeguards, including those discussed in 
this paragraph, are subject to enforcement as provided in section 402. 
It should be noted that the right of a bona fide candidate to sue in the 
circumstances described herein is limited to the period prior to 
election. After the election, the only remedy would be through a suit by 
the Secretary under section 402.

[[Page 191]]



                         Subpart H_Right to Vote



Sec. 452.84  General.

    Under the provisions of section 401(e), every member in good 
standing is entitled to vote in elections required under title IV which 
are to be held by secret ballot. The phrase ``member in good standing'' 
includes any person who has fulfilled the requirements for membership 
and who neither has withdrawn from membership nor has been expelled or 
suspended from membership after appropriate proceedings consistent with 
lawful provisions of the constitution and bylaws of the organization. 
\43\
---------------------------------------------------------------------------

    \43\ Act, sec. 3(o).
---------------------------------------------------------------------------



Sec. 452.85  Reasonable qualifications on right to vote.

    The basic right of members to vote in elections of the labor 
organization may be qualified by reasonable rules and regulations in its 
constitution and bylaws. \44\
---------------------------------------------------------------------------

    \44\ Act, sec. 101(a)(1).
---------------------------------------------------------------------------



Sec. 452.86  Vote conditioned on payment of dues.

    A labor organization may condition the exercise of the right to vote 
upon the payment of dues, which is a basic obligation of membership. 
Such a rule must be applied uniformly. If a member has not paid his dues 
as required by the labor organization's constitution or bylaws he may 
not be allowed to vote. Thus, a rule which suspends a member's right to 
vote in an election of officers while the member is laid off and is not 
paying dues would not, in ordinary circumstances, be considered 
unreasonable, so long as it is applied in a nondiscriminatory manner. 
However, members must be afforded a reasonable opportunity to pay dues, 
including a grace period during which dues may be paid without any loss 
of rights. In the case where a member is laid off but desires to 
maintain his good standing and thus his membership rights by continuing 
to pay dues, it would be clearly unreasonable for the labor organization 
to refuse to accept his payment.



Sec. 452.87  Dues paid by checkoff.

    A member in good standing whose dues are checked off by his employer 
pursuant to his voluntary authorization provided for in a collective 
bargaining agreement may not be disqualified from voting by reason of 
alleged delay or default in the payment of dues. For example, the 
constitution and bylaws of a labor organization call for suspension of 
members whose dues are three months in arrears. Dues to be paid directly 
by a member are two months in arrears when the union changes to a 
checkoff system. The member may not be denied the right to vote merely 
because the employer is late in submitting the checked off dues for the 
first month. It would not be inconsistent with the Act, however, for a 
union to require a new member who executes a checkoff authorization to 
pay one month's dues in advance on the date he becomes a member in order 
to be in good standing for the current month.



Sec. 452.88  Resumption of good standing.

    While it is permissible for a labor organization to deny the right 
to vote to those delinquent in paying their dues (with the exceptions 
noted) or to those who have been suspended or disciplined in accordance 
with section 101(a)(5) of the Act, a provision under which such persons 
are disqualified from voting for an extended period of time after 
payment of back dues or after reinstatement would not be considered 
reasonable. After a member has resumed his good-standing status, it 
would be unreasonable to continue to deprive him of his right to vote 
for a period longer than that for a new member. A new member may 
reasonably be required to establish a relationship with the union by 
remaining in good standing for a continuous period of time, e.g., 6 
months or a year, before being permitted to vote in an election of 
officers. However, while the right to vote may be deferred within 
reasonable limits, a union may not create special classes of nonvoting 
members.



Sec. 452.89  Apprentices.

    A labor organization may condition the right to vote upon completion 
of a bona fide program of apprenticeship training which is designed to 
produce competent tradesmen in the industry the union serves.

[[Page 192]]



Sec. 452.90  Visiting members.

    A decision about the voting rights of visiting members is properly 
one for resolution by the union in accordance with the organization's 
constitution and bylaws or applicable resolutions. For purposes of the 
Act, a person is ordinarily considered to be a member of the local to 
which he pays his dues.



Sec. 452.91  Voting by employers, supervisors.

    Voting in union elections by employers, self-employed persons, 
supervisors or other persons who are considered to be part of management 
is not precluded by title IV of the Act even if they are not required to 
maintain union membership as a condition of employment. However, as 
mentioned in the discussion of qualifications for candidacy (see Sec. 
452.47), such persons may not dominate or interfere with the 
administration of any labor organization.



Sec. 452.92  Unemployed members.

    Members who are otherwise qualified to vote may not be disqualified 
from voting merely because they are currently unemployed or are employed 
on a part-time basis in the industry served by the union, provided, of 
course, that such members are paying dues.



Sec. 452.93  Retired members.

    The right of retirees to vote may be restricted to the extent 
provided by the constitution and bylaws of the labor organization.



Sec. 452.94  Reasonable opportunity to vote.

    The statutory protection of the right to vote implies that there 
must be a reasonable opportunity to vote. Thus, there is an obligation 
on the labor organization to conduct its periodic election of officers 
in such a way as to afford all its members a reasonable opportunity to 
cast ballots. A union may meet this obligation in a variety of ways, 
depending on factors such as the distance between the members' work site 
or homes and the polling place, the means of transportation available, 
the nature of the members' occupations, and their hours of work. A 
reasonable opportunity to vote may require establishing multiple polling 
places or the use of a mail ballot referendum when the members are 
widely dispersed. It would also be reasonable for the time period for 
voting to be extended to accommodate members who might otherwise be 
prevented from voting due to conflicting work schedules. Shortening the 
voting period by a late opening of the polls would not, in itself, be 
improper unless the intent or practical effect of such action is to 
deprive members of their right to vote.



Sec. 452.95  Absentee ballots.

    Where the union knows in advance that a substantial number or a 
particular segment of the members will not be able to exercise their 
right to vote in person, as, for example, when access to a polling place 
is impracticable for many members because of shipping assignments, 
absentee ballots or other means of voting must be made available. \45\ 
In the event absentee ballots are necessary the organization must give 
its members reasonable notice of the availability of such ballots. \46\
---------------------------------------------------------------------------

    \45\ Goldberg v. Marine Cooks and Stewards Union, 204 F. Supp. 844 
(N.D. Cal. 1962).
    \46\ Wirtz v. Local Union 262, Glass Bottle Blowers Association, 290 
F. Supp. 965 (N.D. Calif. 1968).
---------------------------------------------------------------------------



            Subpart I_Election Procedures; Rights of Members



Sec. 452.96  General.

    The Act safeguards democratic processes by prescribing, in section 
401, minimum standards for the regular periodic election of officers in 
labor organizations subject to its provisions. It does not, however, 
prescribe in detail election procedures which must be followed. Labor 
organizations are free to establish procedures for elections as long as 
they are fair to all members and are consistent with lawful provisions 
of the organization's constitution and bylaws and with section 401. The 
rights granted to members in section 401(e) refer to individuals, not 
labor organizations. For example, while locals may be members of an 
intermediate body, they are not entitled to the rights granted 
``members'' in section 401(e).

[[Page 193]]



Sec. 452.97  Secret ballot.

    (a) A prime requisite of elections regulated by title IV is that 
they be held by secret ballot among the members or in appropriate cases 
by representatives who themselves have been elected by secret ballot 
among the members. A secret ballot under the Act is ``the expression by 
ballot, voting machine, or otherwise, but in no event by proxy, of a 
choice * * * cast in such a manner that the person expressing such 
choice cannot be identified with the choice expressed.'' \47\ Secrecy 
may be assured by the use of voting machines, or, if paper ballots are 
used, by providing voting booths, partitions, or other physical 
arrangements permitting privacy for the voter while he is marking his 
ballot. The ballot must not contain any markings which upon examination 
would enable one to identify it with the voter. Balloting by mail 
presents special problems in assuring secrecy. Although no particular 
method of assuring such secrecy is prescribed, secrecy may be assured by 
the use of a double envelope system for return of the voted ballots with 
the necessary voter identification appearing only on the outer envelope.
---------------------------------------------------------------------------

    \47\ Act, sec. 3(k).
---------------------------------------------------------------------------

    (b) Should any voters be challenged as they are casting their 
ballots, there should be some means of setting aside the challenged 
ballots until a decision regarding their validity is reached without 
compromising the secrecy requirement. For example, each such ballot 
might be placed in an envelope with the voter's name on the outside. Of 
course, it would be a violation of the secrecy requirement to open these 
envelopes and count the ballots one at a time in such a way that each 
vote could be identified with a voter.
    (c) In a mail ballot election, a union may require members to sign 
the return envelope if the signatures may be used in determining 
eligibility. However, it would be unreasonable for a union to void an 
otherwise valid ballot merely because a member printed rather than 
signed his name if the union does not use the signatures to determine 
voter eligibility.



Sec. 452.98  Outside agencies.

    There is nothing in the Act to prevent a union from employing an 
independent organization as its agent to handle the printing, mailing, 
and counting of ballots in such elections if all the standards of the 
Act are met.



Sec. 452.99  Notice of election.

    Elections required by title IV to be held by secret ballot must be 
preceded by a notice of election mailed to each member at his last known 
home address not less than fifteen days prior to the election. \48\ For 
purposes of computing the fifteen day period, the day on which the 
notices are mailed is not counted whereas the day of the election is 
counted. For example, if the election is to be held on the 20th day of 
the month, the notices must be mailed no later than the 5th day. The 
notice must include a specification of the date, time and place of the 
election and of the offices to be filled, and it must be in such form as 
to be reasonably calculated to inform the members of the impending 
election. Specification of the offices to be filled would not be 
necessary if it is a regular, periodic election of all officers and the 
notice so indicates. A statement in the union bylaws that an election 
will be held at a certain time does not constitute the notice required 
by the statute. Since the Act specifies that the notice must be mailed, 
other means of transmission such as posting on a bulletin board or hand 
delivery will not satisfy the requirement. A notice of election must be 
sent to every member as defined in section 3(o) of the Act, not only to 
members who are eligible to vote in the election. Where the notice, if 
mailed to the last known permanent or legal residence of the member, 
would not be likely to reach him because of a known extended absence 
from that place, the statutory phrase ``last known home address'' may 
reasonably be interpreted to refer to the last known temporary address 
of definite duration. A single notice for both nominations and election 
may be used if it meets

[[Page 194]]

the requirements of both such notices. \49\
---------------------------------------------------------------------------

    \48\ Act, sec. 401(e).
    \49\ See Sec. 452.56 for a discussion of the requirements for 
notices of nomination.

[38 FR 18324, July 9, 1973, as amended at 63 FR 33780, June 19, 1998]



Sec. 452.100  Use of union newspaper as notice.

    A labor organization may comply with the election notice requirement 
by publishing the notice in the organization's newspaper which is mailed 
to the last known home address of each member not less than fifteen days 
prior to the election. Where this procedure is used (a) the notice 
should be conspicuously placed on the front page of the newspaper, or 
the front page should have a conspicuous reference to the inside page 
where the notice appears, so that the inclusion of the election notice 
in a particular issue is readily apparent to each member; (b) the notice 
should clearly identify the particular labor organization holding the 
election; (c) the notice should specify the time and place of the 
election and the offices to be filled; and (d) a reasonable effort must 
be made to keep the mailing list of the publication current.



Sec. 452.101  Sample ballots as notice.

    Sample ballots together with information as to the time and place of 
the election and the offices to be filled, if mailed fifteen days prior 
to the election, will fulfill the election notice requirements.



Sec. 452.102  Notice in mail ballot election.

    If the election is conducted by mail and no separate notice is 
mailed to the members, the ballots must be mailed to the members no 
later than fifteen days prior to the date when they must be mailed back 
in order to be counted.



Sec. 452.103  Primary elections.

    The fifteen-day election notice provision applies to a ``primary 
election'' at which nominees are chosen. Likewise, the fifteen-day 
election notice requirement applies to any runoff election which may be 
held after an inconclusive election. However, a separate notice would 
not be necessary if the election notice for the first election advises 
the members of the possibility of a runoff election and specifies such 
details as the time and place of such runoff election as may be 
necessary.



Sec. 452.104  Proximity of notice to election.

    (a) The statutory requirement for giving fifteen days' notice of 
election is a minimum standard. There is no objection to giving more 
notice than is required by law. However, it was clearly the intent of 
Congress to have members notified at a time which reasonably precedes 
the date of the election. For example, notice in a union publication 
which is expected to cover elections to be held six months later would 
not be considered reasonable.
    (b) Should a union change the date of an election from the date 
originally announced in the mail notice to the members, it must mail a 
second notice, containing the corrected date, at least fifteen days 
before the election.



Sec. 452.105  Interference or reprisal.

    Title IV expressly provides for the right of a member to vote for 
and otherwise support the candidates of his choice without being subject 
to penalty, discipline, or improper interference or reprisal of any kind 
by the labor organization conducting the election or any officer or 
member thereof. \50\
---------------------------------------------------------------------------

    \50\ Act, section 401(e). In Wirtz v. Local 1752, ILA, 56 LRRM 2303, 
49 L.C. ]18,998 (S.D. Miss. 1963), the court, under its equitable 
jurisdiction, granted a preliminary injunction on the motion of the 
Secretary to enjoin a union from taking disciplinary action against a 
member. The member had filed a complaint with the Secretary under 
section 402(a) that resulted in the Secretary filing suit under 402(b).
---------------------------------------------------------------------------



Sec. 452.106  Preservation of records.

    In every secret ballot election which is subject to the Act, the 
ballots and all other records pertaining to the election must be 
preserved for one year. \51\ The responsibility for preserving the 
records is that of the election officials designated in the constitution 
and bylaws of the labor organization or, if none is so designated, its 
secretary. Since the Act specifies that ballots

[[Page 195]]

must be retained, all ballots, marked or unmarked, must be preserved. 
Independent certification as to the number and kind of ballots destroyed 
may not be substituted for preservation. In addition, ballots which have 
been voided, for example, because they were received late or because 
they were cast for an ineligible candidate, must also be preserved.
---------------------------------------------------------------------------

    \51\ Act, section 401(e).
---------------------------------------------------------------------------



Sec. 452.107  Observers.

    (a) Under the provisions of section 401(c), each candidate must be 
permitted to have an observer (1) at the polls and (2) at the counting 
of the ballots. This right encompasses every phase and level of the 
counting and tallying process, including the counting and tallying of 
the ballots and the totaling, recording, and reporting of tally sheets. 
If there is more than one polling place, the candidate may have an 
observer at each location. If ballots are being counted at more than one 
location or at more than one table at a single location, a candidate is 
entitled to as many observers as necessary to observe the actual 
counting of ballots. The observer may note the names of those voting so 
that the candidates may be able to ascertain whether unauthorized 
persons voted in the election. The observers should be placed so that 
they do not compromise, or give the appearance of compromising, the 
secrecy of the ballot. The observer is not required to be a member of 
the labor organization unless the union's constitution and bylaws 
require him to be a member. There is no prohibition on the use of 
alternate observers, when necessary, or on a candidate serving as his 
own observer. Observers do not have the right to count the ballots.
    (b) The right to have an observer at the polls and at the counting 
of the ballots extends to all candidates for office in an election 
subject to title IV, i.e., this includes elections in intermediate 
bodies as well as elections in locals and national and international 
labor organizations.
    (c) In any secret ballot election which is conducted by mail, 
regardless of whether the ballots are returned by members to the labor 
organization office, to a mail box, or to an independent agency such as 
a firm of certified public accountants, candidates must be permitted to 
have an observer present at the preparation and mailing of the ballots, 
their receipt by the counting agency and at the opening and counting of 
the ballots.
    (d) Paying election observers is the responsibility of the candidate 
they represent unless the union has a rule providing for the payment of 
observers. If the union does have such a rule, it must be uniformly 
applied to all candidates.



Sec. 452.108  Publication of results.

    In any election which is required by the Act to be held by secret 
ballot, the votes cast by members of each local labor organization must 
be counted, and the results published, separately. \52\ For example, 
where officers of an intermediate body are elected directly by members, 
the votes of each local must be tabulated and published separately. The 
publishing requirement is to assure that the results of the voting in 
each local are made known to all interested members. Thus, the 
presentation of the election report at a regular local membership 
meeting, and the entry of the report in the minutes, would normally 
accomplish this purpose in a local election. Such minutes would have to 
be available for inspection by members at reasonable times, unless 
copies of the report are made available. In an election that encompasses 
more than one local, publication may be accomplished by posting on 
appropriate bulletin boards, or in a union newspaper, or by any 
procedure which allows any member to obtain the information without 
unusual effort. Of course, the counting and reporting should account for 
all ballots cast in the election, although only valid votes will be 
counted in determining the successful candidates.
---------------------------------------------------------------------------

    \52\ Act, sec. 401(e). See also Senate Report 187, 86th Cong. 1st 
sess., p. 47; Daily Cong. Rec. p. 13682, Aug. 3, 1959, and p. A6573, 
July 29, 1959.
---------------------------------------------------------------------------



Sec. 452.109  Constitution of labor organization.

    Elections must be conducted in accordance with the constitution and 
bylaws of the organization insofar as they

[[Page 196]]

are not inconsistent with the provisions of title IV. \53\
---------------------------------------------------------------------------

    \53\ Act, sec. 401(e). Under 29 CFR 402.10, a labor organization is 
required to make available to all members a copy of its constitution and 
bylaws.
---------------------------------------------------------------------------



Sec. 452.110  Adequate safeguards.

    (a) In addition to the election safeguards discussed in this part, 
the Act contains a general mandate in section 401(c), that adequate 
safeguards to insure a fair election shall be provided. Such safeguards 
are not required to be included in the union's constitution and bylaws, 
but they must be observed. A labor organization's wide range of 
discretion regarding the conduct of elections is thus circumscribed by a 
general rule of fairness. For example, if one candidate is permitted to 
have his nickname appear on the ballot, his opponent should enjoy the 
same privilege.
    (b) A union's failure to provide voters with adequate instructions 
for properly casting their ballots may violate the requirement of 
adequate safeguards to insure a fair election.



Sec. 452.111  Campaigning in polling places.

    There must not be any campaigning within a polling place \54\ and a 
union may forbid any campaigning within a specified distance of a 
polling place.
---------------------------------------------------------------------------

    \54\ See Hodgson v. UMW, 344 F.Supp. 17 (D.D.C. 1972).
---------------------------------------------------------------------------



Sec. 452.112  Form of ballot; slate voting.

    The form of the ballot is not prescribed by the Act. Thus, a union 
may, if it so desires, include a proposed bylaw change or other similar 
proposal on a ballot along with the candidates for office so long as 
this is permissible under the union's constitution and bylaws. A 
determination as to the position of a candidate's name on the ballot may 
be made by the union in any reasonable manner permitted by its 
constitution and bylaws, consistent with the requirement of fairness and 
the other provisions of the Act. For example, candidates may be listed 
according to their affiliation with a particular slate. However, while 
``slate voting'' is permissible, the balloting must be consistent with 
the right of members to vote for the candidates of their choice. Thus, 
there must be provision for the voter to choose among individual 
candidates if he does not wish to vote for an entire slate. To avoid any 
misunderstanding in this regard, the voting instructions should 
specifically inform the voter that he need not vote for an entire slate.



Sec. 452.113  Sectional balloting.

    The ballots may be prepared so that the names of candidates for 
positions representative of a particular area appear only on the ballots 
received by members living in that area.



Sec. 452.114  Write-in votes.

    Where write-in votes are permitted in an election subject to title 
IV, details of the format of the ballot are left to the discretion of 
the union. Ordinarily, the Secretary would become involved in such 
matters only in the context of an election complaint under section 402 
and then only if the arrangements for write-in votes were so 
unreasonable that the outcome of the election may have been affected. Of 
course, a union may, in accordance with its constitution and bylaws or 
as a matter of stated policy, refuse to permit write-in votes.



Sec. 452.115  Distribution of ballots.

    So long as secrecy of the ballot is maintained, there is no 
restriction on how the ballots are distributed to the voters. Any method 
which actually provides each eligible voter with one blank ballot would 
be in conformance with the law.



Sec. 452.116  Determining validity of ballots.

    Generally, a labor organization has a right to establish reasonable 
rules for determining the validity of ballots cast in an election. 
However, where the union has no published guides for determining the 
validity of a voted ballot, it must count any ballot voted in such a way 
as to indicate fairly the intention of the voter. An entire ballot may 
not be voided because of a mistake made in voting for one of the offices 
on the ballot.

[[Page 197]]



Sec. 452.117  Majority of votes not required for election.

    A labor organization may by its constitution and bylaws provide for 
the election of the candidate who receives the greatest number of votes, 
although he does not have a majority of all the votes cast. 
Alternatively, it may provide that where no candidate receives a 
majority of all the votes cast, a run-off election be held between the 
two candidates having the highest vote. Similarly, a labor organization 
conducting an election to choose five members of an executive board may 
designate as elected from among all the nominees the five candidates who 
receive the highest vote.



Sec. 452.118  Local unions agents in international elections.

    An international union may establish internal rules which require 
local or intermediate union officials to act as agents of the 
international in conducting designated aspects of the international 
referendum election of officers. The consequences of the failure to 
perform as directed by such officials will, of course, depend on the 
totality of the circumstances involved.



Sec. 452.119  Indirect elections.

    National or international labor organizations subject to the Act 
have the option of electing officers either directly by secret ballot 
among the members in good standing or at a convention of delegates or 
other representatives who have been elected by secret ballot among the 
members. Intermediate labor organizations subject to the Act have the 
option of electing officers either directly by secret ballot among the 
members in good standing or by labor organization officers or delegates 
elected by secret ballot vote of the members they represent. Local 
unions, in contrast, do not have the option of conducting their periodic 
elections of officers indirectly through representatives.



Sec. 452.120  Officers as delegates.

    Officers of labor organizations who have been elected by secret 
ballot vote of their respective memberships may, by virtue of their 
election to office, serve as delegates to conventions at which officers 
will be elected, if the constitution and bylaws of the labor 
organization so provide. In such cases it is advisable to have a 
statement to this effect included on the ballots. Persons who have been 
appointed to serve unexpired terms of officers who are ex officio 
delegates to a convention at which officers will be elected may not vote 
for officers in such election.



Sec. 452.121  Limitations on national or international officers serving 
as delegates.

    While officers of national or international labor organizations or 
of intermediate bodies who have been elected by a vote of the delegates 
to a convention may serve as delegates to conventions of their 
respective labor organizations if the constitution and bylaws so 
provide, they may not vote in officer elections at such conventions 
unless they have also been elected as delegates by a secret ballot vote 
of the members they are to represent. Of course, such officers may 
participate in the convention, i.e., they may preside over the 
convention, be nominated as candidates, or act in other capacities 
permitted under the organization's constitution and bylaws.



Sec. 452.122  Delegates from intermediate bodies; method of election.

    A delegate from an intermediate body who participates in the 
election of officers at a national or international convention must have 
been elected by a secret ballot vote of the individual members of the 
constituent units of that body. He may not participate if he was elected 
by the delegates who make up the intermediate body. The secret ballot 
election required by the Act is an election among the general membership 
and not an election of delegates by other delegates.



Sec. 452.123  Elections of intermediate body officers.

    Section 401(d) states that officers of intermediate bodies shall be 
elected either by secret ballot among the members in good standing or by 
labor organization officers representative of such members who have been 
elected by secret ballot. The phrase ``officers representative of such 
members'' includes

[[Page 198]]

delegates who have been elected by secret ballot to represent labor 
organizations in intermediate bodies. Such delegates may therefore 
participate in the election of officers of intermediate bodies 
regardless of whether they are characterized as officers of the labor 
organization they represent.



Sec. 452.124  Delegates from units which are not labor organizations.

    To the extent that units, such as committees, which do not meet the 
definition of a labor organization under the Act \55\ participate in the 
election of officers of a national or international labor organization 
or an intermediate body, through delegates to the convention or 
otherwise, the provisions of title IV are, nevertheless, applicable to 
the election of such delegates. The following example is typical in 
organizations of railway employees. The chairman of a local grievance 
committee, which is not a labor organization under the Act, is not an 
officer within the meaning of the Act. If such a local chairman is a 
delegate to the general grievance committee, which is considered to be 
an intermediate body under the Act, however, he must be elected by 
secret ballot vote of the members he represents, if he votes for 
officers of the general grievance committee.
---------------------------------------------------------------------------

    \55\ Act, sec. 3 (i) and (j) and part 451 of this chapter.
---------------------------------------------------------------------------



Sec. 452.125  Delegates from labor organizations under trusteeship.

    It would be unlawful under section 303(a)(1) of the Act to count the 
votes of delegates from a labor organization under trusteeship in any 
convention or election of officers of the organization imposing the 
trusteeship unless such delegates were chosen by secret ballot vote in 
an election in which all the members in good standing of the subordinate 
organization were eligible to participate.\56\
---------------------------------------------------------------------------

    \56\ Section 303(b) of the LMRDA provides criminal penalties for 
violation of section 303(a)(1).
---------------------------------------------------------------------------



Sec. 452.126  Delegates to conventions which do not elect officers.

    Delegates to conventions need not be elected by secret ballot when 
officers of the organization are elected by a secret ballot vote of the 
entire membership. However, if the only method of making nominations is 
by delegates, then the delegates must be elected by secret ballot.



Sec. 452.127  Proportionate representation.

    When officers of a national, international or intermediate labor 
organization are elected at a convention of delegates who have been 
chosen by secret ballot, the structure of representation of the 
membership is a matter for the union to determine in accordance with its 
constitution and bylaws. There is no indication that Congress intended, 
in enacting title IV of the Act, to require representation in delegate 
bodies of labor organizations to reflect the proportionate number of 
members in each subordinate labor organization represented in such 
bodies. Questions of such proportionate representation are determined in 
accordance with the labor organization's constitution and bylaws insofar 
as they are not inconsistent with the election provisions of the Act. 
Congress did not attempt to specify the organizational structure or the 
system of representation which unions must adopt. However, all members 
must be represented; the union may not deny representation to locals 
below a certain size.



Sec. 452.128  Under-strength representation.

    A local union may elect fewer delegates than it is permitted under 
the union constitution as long as the local is allowed to determine for 
itself whether or not it will send its full quota of delegates to the 
union convention. The delegates present from a local may cast the entire 
vote allotted to that local if this is permitted by the constitution and 
bylaws.



Sec. 452.129  Non-discrimination.

    Further, distinctions in representational strength among or within 
locals may not be based on arbitrary and unreasonable factors such as 
race, sex, or class of membership based on type of employment.

[[Page 199]]



Sec. 452.130  Expenses of delegates.

    A local may elect two groups--one which would receive expenses while 
the other would be required to pay its own way, provided each member has 
an equal opportunity to run for the expense-paid as well as the non-
expense-paid positions.



Sec. 452.131  Casting of ballots; delegate elections.

    The manner in which the votes of the representatives are cast in the 
convention is not subject to special limitations. For example, the 
voting may be by secret ballot, by show of hands, by oral roll call 
vote, or if only one candidate is nominated for an office, by 
acclamation or by a motion authorizing the convention chairman to cast a 
unanimous vote of the delegates present.



Sec. 452.132  Proxy voting.

    There is no prohibition on delegates in a convention voting by 
proxy, if the constitution and bylaws permit.



Sec. 452.133  Election of delegates not members of the labor organization.

    A labor organization's constitution and bylaws may authorize the 
election of delegates who are not members of the subordinate labor 
organization they represent, provided the members of the subordinate 
organization are also eligible to be candidates.



Sec. 452.134  Preservation of records.

    The credentials of delegates, and all minutes and other records 
pertaining to the election of officers at conventions, must be preserved 
for one year by the officials designated in the constitution and bylaws 
or by the secretary if no other officer is designated. This requirement 
applies not only to conventions of national or international labor 
organizations, but also to representative bodies of intermediate labor 
organizations.



                Subpart J_Special Enforcement Provisions



Sec. 452.135  Complaints of members.

    (a) Any member of a labor organization may file a complaint with the 
Office of Labor-Management Standards alleging that there have been 
violations of requirements of the Act concerning the election of 
officers, delegates, and representatives (including violations of 
election provisions of the organization's constitution and bylaws that 
are not inconsistent with the Act.).\57\ The complaint may not be filed 
until one of the two following conditions has been met: (1) The member 
must have exhausted the remedies available to him under the constitution 
and bylaws of the organization and its parent body, or (2) he must have 
invoked such remedies without obtaining a final decision within three 
calendar months after invoking them.
---------------------------------------------------------------------------

    \57\ Act, sec. 402(a).
---------------------------------------------------------------------------

    (b) If the member obtains an unfavorable final decision within three 
calendar months after invoking his available remedies, he must file his 
complaint within one calendar month after obtaining the decision. If he 
has not obtained a final decision within three calendar months, he has 
the option of filing his complaint or of waiting until he has exhausted 
the available remedies within the organization. In the latter case, if 
the final decision is ultimately unfavorable, he will have one month in 
which to file his complaint.



Sec. 452.136  Investigation of complaint by Office of Labor-Management 
Standards, court action by the Secretary.

    (a) The Office of Labor-Management Standards is required to 
investigate each complaint of a violation filed in accordance with the 
requirements of the Act and, if the Secretary finds probable cause to 
believe that a violation has occurred and has not been remedied, he is 
directed to bring within 60 days after the complaint has been filed a 
civil action against the labor organization in a Federal district court. 
In any such action brought by the Secretary the statute provides that 
if, upon a preponderance of the evidence after a trial upon the merits, 
the court finds (1) that an election has not been held within the time 
prescribed by the election provisions of the Act or (2) that a violation 
of these provisions ``may have affected the outcome of an election'', 
the court shall declare the

[[Page 200]]

election, if any, to be void and direct the conduct of an election under 
the supervision of the Secretary, and, so far as is lawful and 
practicable, in conformity with the constitution and bylaws of the labor 
organization.
    (b) Violations of the election provisions of the Act which occurred 
in the conduct of elections held within the prescribed time are not 
grounds for setting aside an election unless they ``may have affected 
the outcome.'' The Secretary, therefore, will not institute court 
proceedings upon the basis of a complaint alleging such violations 
unless he finds probable cause to believe that they ``may have affected 
the outcome of an election.''
    (b-1) The Supreme Court, in Hodgson v. Local Union 6799, 
Steelworkers Union of America, 403 U.S. 333, 91 S.Ct. 1841 (1971), ruled 
that the Secretary of Labor may not include in his complaint a violation 
which was known to the protesting member but was not raised in the 
member's protest to the union.

Complaints filed by the Department of Labor will accordingly be limited 
by that decision to the matters which may fairly be deemed to be within 
the scope of the member's internal protest and those which investigation 
discloses he could not have been aware of.
    (c) Elections challenged by a member are presumed valid pending a 
final decision. The statute provides that until such time, the affairs 
of the labor organization shall be conducted by the elected officers or 
in such other manner as the union constitution and bylaws provide. 
However, after suit is filed by the Secretary the court has power to 
take appropriate action to preserve the labor organization's assets.

[38 FR 18324, July 3, 1973, as amended at 39 FR 37360, Oct. 21, 1974]



                Subpart K_Dates and Scope of Application



Sec. 452.137  Effective dates.

    (a) Section 404 states when the election provisions of the Act 
become applicable.\58\ In the case of labor organizations whose 
constitution and bylaws can be lawfully modified or amended by action of 
the organization's ``constitutional officers or governing body,'' the 
election provisions become applicable 90 days after the enactment of the 
statute (December 14, 1959). Where the modification of the constitution 
and bylaws of a local labor organization requires action by the 
membership at a general meeting or by referendum, the general membership 
would be a ``governing body'' within the meaning of this provision. In 
the cases where any necessary modification of the constitution and 
bylaws can be made only by a constitutional convention of the labor 
organization, the election provisions become applicable not later than 
the next constitutional convention after the enactment of the statute, 
or one year after the enactment of the statute, whichever is sooner.
---------------------------------------------------------------------------

    \58\ Act, sec. 404.
---------------------------------------------------------------------------

    (b) The statute does not require the calling of a special 
constitutional convention to make such modifications. However, if no 
convention is held within the one-year period, the executive board or 
similar governing body that has the power to act for the labor 
organization between conventions is empowered by the statute to make 
such interim constitutional changes as are necessary to carry out the 
provisions of title IV of the Act. Any election held thereafter would 
have to comply with the requirements of the Act.



Sec. 452.138  Application of other laws.

    (a) Section 403 \59\ provides that no labor organization shall be 
required by law to conduct elections of officers with greater frequency 
or in a different form or manner than is required by its own 
constitution or bylaws, except as otherwise provided by the election 
provisions of the Act.
---------------------------------------------------------------------------

    \59\ Act, sec. 403.
---------------------------------------------------------------------------

    (b) The remedy \60\ provided in the Act for challenging an election 
already conducted is exclusive.\61\ However, existing rights and 
remedies to enforce

[[Page 201]]

the constitutions and bylaws of such organizations before an election 
has been held are unaffected by the election provisions. Section 603 
\62\ which applies to the entire Act, states that except where 
explicitly provided to the contrary, nothing in the Act shall take away 
any right or bar any remedy of any union member under other Federal law 
or law of any State.
---------------------------------------------------------------------------

    \60\ Act, sec. 402.
    \61\ Act, sec. 403. See Daily Cong. Rec. 86th Cong., 1st sess., p. 
9115, June 8, 1959, pp. 13017 and 13090, July 27, 1959. H. Rept. No. 
741, p. 17; S. Rept. No. 187, pp. 21-22, 101, 104. Hearings, House Comm. 
on Education and Labor, 86th Cong., 1st sess., pt. 1, p. 1611. See also 
Furniture Store Drivers Local 82 v. Crowley, 104 S.Ct. 2557 (1984).
    \62\ Act, sec. 603.

[38 FR 18324, July 9, 1973, as amended at 50 FR 31311, Aug. 1, 1985]



PART 453_GENERAL STATEMENT CONCERNING THE BONDING REQUIREMENTS OF THE 
LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959--Table of Contents




                              Introduction

Sec.
453.1 Scope and significance of this part.

               Criteria for Determining Who Must Be Bonded

453.2 Provisions of the statute.
453.3 Labor organizations within the coverage of section 502(a).
453.4 Trusts (in which a labor organization is interested) within the 
          coverage of section 502(a).
453.5 Officers, agents, shop stewards, or other representatives or 
          employees of a labor organization.
453.6 Officers, agents, shop stewards or other representatives or 
          employees of a trust in which a labor organization is 
          interested.
453.7 ``Funds or other property'' of a labor organization or of a trust 
          in which a labor organization is interested.
453.8 Personnel who ``handle'' funds or other property.
453.9 ``Handling'' of funds or other property by personnel functioning 
          as a governing body.

                            Scope of the Bond

453.10 The statutory provision.
453.11 The nature of the ``duties'' to which the bonding requirement 
          relates.
453.12 Meaning of fraud or dishonesty.

                             Amount of Bonds

453.13 The statutory provision.
453.14 The meaning of ``funds''.
453.15 The meaning of funds handled ``during the preceding fiscal 
          year''.
453.16 Funds handled by more than one person.
453.17 Term of the bond.

                              Form of Bonds

453.18 Bonds ``individual or schedule in form.''
453.19 The designation of the ``insured'' on bonds.

Qualified Agents, Brokers, and Surety Companies for the Placing of Bonds

453.20 Corporate sureties holding grants of authority from the Secretary 
          of the Treasury.
453.21 Interests held in agents, brokers, and surety companies.

                        Miscellaneous Provisions

453.22 Prohibition of certain activities by unbonded persons.
453.23 Persons becoming subject to bonding requirements during fiscal 
          year.
453.24 Payment of bonding costs.
453.25 Effective date of the bonding requirement.
453.26 Powers of the Secretary of Labor to exempt.

    Authority: Sec. 502, 73 Stat. 536; 79 Stat. 888 (29 U.S.C. 502); 
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 28 FR 14394, Dec. 27, 1963, unless otherwise noted.

                              Introduction



Sec. 453.1  Scope and significance of this part.

    (a) Functions of the Department of Labor. This part discusses the 
meaning and scope of section 502 of the Labor-Management Reporting and 
Disclosure Act of 1959 \1\ (hereinafter referred to as the Act), which 
requires the bonding of certain officials, representatives, and 
employees of labor organizations and of trusts in which labor 
organizations are interested. The provisions of section 502 are subject 
to the general investigatory authority of the Secretary of Labor, 
embodied in section 601 of the Act (and delegated by him to the 
Assistant Secretary), which empowers him to investigate whenever he 
believes it necessary in order to determine whether any person has 
violated or is about to violate any provisions of the Act (except title 
I or amendments

[[Page 202]]

to other statutes made by section 505 or title VII). The Department of 
Labor is also authorized, under the general provisions of section 607, 
to forward to the Attorney General, for appropriate action, any evidence 
of violations of section 502 developed in such investigations, as may be 
found to warrant criminal prosecution under the Act or other Federal 
law.
---------------------------------------------------------------------------

    \1\ 73 Stat. 536; 29 U.S.C. 502.
---------------------------------------------------------------------------

    (b) Purpose and effect of interpretations. Interpretations of the 
Assistant Secretary with respect to the bonding provisions are set forth 
in this part to provide those affected by these provisions of the Act 
with ``a practical guide * * * as to how the office representing the 
public interest in its enforcement will seek to apply it.'' \2\ The 
correctness of an interpretation can be determined finally and 
authoritatively only by the courts. It is necessary, however, for the 
Assistant Secretary to reach informed conclusions as to the meaning of 
the law to enable him to carry out his statutory duties of 
administration and enforcement. The interpretations of the Assistant 
Secretary contained in this part, which are issued upon the advice of 
the Solicitor of Labor, indicate the construction of the law which will 
guide him in performing his duties unless and until he is directed 
otherwise by authoritative rulings of the courts or unless and until he 
subsequently decides that a prior interpretation is incorrect. However, 
the omission to discuss a particular problem in this part, or in 
interpretations supplementing it, should not be taken to indicate the 
adoption of any position by the Assistant Secretary with respect to such 
problem or to constitute an administrative interpretation or practice.
---------------------------------------------------------------------------

    \2\ Skidmore v. Swift & Co., 323 U.S. 134, 138.
---------------------------------------------------------------------------

    (c) Earlier interpretations superseded. To the extent that prior 
opinions and interpretations under the Act, relating to the bonding of 
certain officials, representatives, and employees of labor organizations 
and of trusts in which labor organizations are interested, are 
inconsistent or in conflict with the principles stated in this part, 
they are hereby rescinded and withdrawn.

[28 FR 14394, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]

               Criteria for Determining Who Must Be Bonded



Sec. 453.2  Provisions of the statute.

    (a) Section 502(a) requires that:

    Every officer, agent, shop steward, or other representative or 
employee of any labor organization (other than a labor organization 
whose property and annual financial receipts do not exceed $5,000 in 
value), or of a trust in which a labor organization is interested, who 
handles funds or other property thereof shall be bonded to provide 
protection against loss by reason of acts of fraud or dishonesty on his 
part directly or through connivance with others.

    (b) This section sets forth, in the above language and in its 
further provisions, the minimum requirements regarding the bonding of 
the specified personnel. There is no provision in the Act which 
precludes the bonding of such personnel in amounts exceeding those 
specified in section 502(a). Similarly, the Act contains no provision 
precluding the bonding of such personnel as are not required to be 
bonded by this section. Such excess coverage may be in any amount and in 
any form otherwise lawful and acceptable to the parties to such bonds.

[28 FR 14394, Dec. 27, 1963, as amended at 30 FR 14925, Dec. 2, 1965]



Sec. 453.3  Labor organizations within the coverage of section 502(a).

    Any labor organization as defined in sections 3(i) and 3(j) of the 
Act \3\ is a labor organization within the coverage of section 502(a) 
unless its property and annual financial receipts do not exceed $5,000 
in value. The determination as to whether a particular labor 
organization is excepted from the application of section 502(a) is to be 
made at the beginning of each of its fiscal years on the basis of the 
total value of all its property at the beginning of, and its total 
financial receipts during, the preceding fiscal year of the 
organization.
---------------------------------------------------------------------------

    \3\ See part 451 of this chapter.
---------------------------------------------------------------------------



Sec. 453.4  Trusts (in which a labor organization is interested) within 
the coverage of section 502(a).

    Section 3(l) of the Act defines a trust in which a labor 
organization is interested as:


[[Page 203]]


    * * * a trust or other fund or organization (1) which was created or 
established by a labor organization, or one or more of the trustees or 
one or more members of the governing body of which is selected or 
appointed by a labor organization, and (2) a primary purpose of which is 
to provide benefits for the members of such labor organization or their 
beneficiaries.


Both the language and the legislative history \4\ make it clear that 
this definition covers pension funds, health and welfare funds, profit 
sharing funds, vacation funds, apprenticeship and training funds, and 
funds or trusts of a similar nature which exist for the purpose of, or 
have as a primary purpose, the providing of the benefits specified in 
the definition. This is so regardless of whether these trusts, funds, or 
organizations are administered solely by labor organizations, or jointly 
by labor organizations and employers, or by a corporate trustee, unless 
they were neither created or established by a labor organization nor 
have any trustee or member of the governing body who was selected or 
appointed by a labor organization.
---------------------------------------------------------------------------

    \4\ Daily Cong. Rec., pp. 5858-59, Senate, April 23, 1959.
---------------------------------------------------------------------------



Sec. 453.5  Officers, agents, shop stewards, or other representatives or 
employees of a labor organization.

    With respect to labor organizations, the term ``officer, agent, shop 
steward, or other representative'' is defined in section 3(q) of the Act 
to include ``elected officials and key administrative personnel, whether 
elected or appointed (such as business agents, heads of departments or 
major units, and organizers who exercise substantial independent 
authority)''. Other individuals employed by a labor organization, 
including salaried non-supervisory professional staff, stenographic, and 
service personnel are ``employees'' and must be bonded if they handle 
\5\ funds or other property of the labor organization.
---------------------------------------------------------------------------

    \5\ For discussion of ``handle'', see Sec. 453.8.
---------------------------------------------------------------------------



Sec. 453.6  Officers, agents, shop stewards or other representatives or 
employees of a trust in which a labor organization is interested.

    (a) Officers, agents, shop stewards or other representatives. While 
the definition of the collective term ``Officer, agent, shop steward, or 
other representative'' in section 3(q) of the Act is expressly 
applicable only ``when used with respect to a labor organization,'' the 
use of this term in connection with trusts in which a labor organization 
is interested makes it clear that, in that connection, it refers to 
personnel of such trusts in positions similar to those enumerated in the 
definition. Thus, the term covers trustees and key administrative 
personnel of trusts, such as the administrator of a trust, heads of 
departments or major units, and persons in similar positions. It covers 
such personnel, including trustees, regardless of whether they are 
representatives of or selected by labor organizations, or 
representatives of or selected by employers,\6\ and such personnel must 
be bonded if they handle funds or other property of the trust within the 
meaning of section 502(a).
---------------------------------------------------------------------------

    \6\ See the contrast between section 308 of S. 1555 as passed by the 
Senate (``All officers, agents, representatives, and employees of any 
labor organization engaged in an industry affecting commerce who handle 
funds of such organization or of a trust in which such organization is 
interested shall be bonded * * *'') and section 502 of the Act as 
finally enacted. The change between the two versions originated in the 
House Committee on Education and Labor. Prior to the reporting of the 
bill (H.R. 8342) by that Committee, a joint subcommittee of that 
Committee held extensive hearings, during the course of which witnesses 
including President Meany of the AFL-CIO criticized the bonding 
provision of the Senate bill on the ground that it required only union 
personnel of joint employer-union trusts to be bonded. (See Record of 
Hearings before a Joint Subcommittee of the Committee on Education and 
Labor, House of Representatives, 86th Congress, 1st Session, on H.R. 
3540, H.R. 3302, H.R. 4473 and H.R. 4474, pp. 1493-94, 1979.
---------------------------------------------------------------------------

    (b) Independent institutions not included. The analogy to the 
definition of the term ``officer, agent, shop steward, or other 
representative,'' when used with respect to a labor organization, shows 
that banks and other qualified financial institutions in which trust

[[Page 204]]

funds are deposited are not to be considered as ``agents'' or 
``representatives'' of trusts within the meaning of section 502 and thus 
are not subject to the bonding requirement, even though they may also 
have administrative or management responsibilities with respect to such 
trusts. Similarly, the bonding requirement does not apply to brokers or 
other independent contractors who have contracted with trusts for the 
performance of functions which are normally not carried out by officials 
or employees of such trusts such as the buying of securities, the 
performance of other investment functions, or the transportation of 
funds by armored truck.
    (c) Employees of a trust in which a labor organization is 
interested. As in the case of labor organizations, all individuals 
employed by a trust in which a labor organization is interested are 
``employees,'' regardless of whether, technically, they are employed by 
the trust, by the trustees, by the trust administrator, or by trust 
officials in similar positions.

[28 FR 14394, Dec. 27, 1963, as amended at 50 FR 31311, Aug. 1, 1985]



Sec. 453.7  ``Funds or other property'' of a labor organization or of 
a trust in which a labor organization is interested.

    The affirmative requirement for bonding the specified personnel is 
applicable only if they handle ``funds or other property'' of the labor 
organization or trust concerned. A consideration of the purpose of 
section 502 and a reading of the section as a whole, including 
provisions for fixing the amount of bonds, suffice to show that the term 
``funds or other property'', as used in this section of the Act, 
encompasses more than cash alone but that it does not embrace all of the 
property of a labor organization or of a trust in which a labor 
organization is interested. The term does not include property of a 
relatively permanent nature, such as land, buildings, furniture, 
fixtures and office and delivery equipment used in the operations of a 
labor organization or trust. It does, however, include items in the 
nature of quick assets, such as checks and other negotiable instruments, 
government obligations and marketable securities, as well as cash, and 
other property held, not for use, but for conversion into cash or for 
similar purposes making it substantially equivalent to funds.



Sec. 453.8  Personnel who ``handle'' funds or other property.

    (a) General considerations. Section 502(a) requires ``every'' person 
specified in its bonding requirement ``who handles'' funds or other 
property of the labor organization or trust to be bonded. It does not 
contain any exemption based on the amount of the funds or other property 
handled by particular personnel. Therefore, if the bonding requirement 
is otherwise applicable to such persons, the amount of the funds or the 
value of the property handled by them does not affect such 
applicability. In determining whether a person ``handles'' funds or 
other property within the meaning of section 502(a), however, it is 
important to consider the term ``handles'' in the light of the basic 
purpose which Congress sought to achieve by the bonding requirement and 
the language chosen to make that purpose effective. Thus, while it is 
clear that section 502(a) should be considered as representing the 
minimum requirements which Congress deemed necessary in order to insure 
the reasonable protection of the funds and other property of labor 
organizations and trusts within the coverage of the section, it is 
equally clear from the legislative history \7\ and the language used 
that Congress was aware of cost considerations and did not intend to 
require unreasonable, unnecessary or duplicative bonding. In terms of 
these general considerations, more specific content may be assigned to 
the term ``handles'' by reference to the prohibition in section 502(a) 
against permitting any person not covered by an appropriate bond ``to 
receive, handle, disburse, or otherwise exercise custody or control'' of 
the funds or other property of a labor organization or of a trust in 
which a labor

[[Page 205]]

organization is interested. The phrase ``receive, handle, disburse, or 
otherwise exercise custody or control'' is not to be considered as 
expanding the scope of the term ``handles'' but rather as indicating 
facets of ``handles'' which in a specific prohibition, Congress believed 
should be clearly set forth.
---------------------------------------------------------------------------

    \7\ House Report No. 1147, 86th Congress, 1st Session, p. 35; Daily 
Cong. Record 16419, Senate, Sept. 3, 1959; Hearings Before the 
Subcommittee on Labor of the Senate Committee on Labor and Public 
Welfare on S. 505, S. 748, S. 76, S. 1002, S. 1137, and S. 1311, 86th 
Congress, 1st Session, p. 709.
---------------------------------------------------------------------------

    (b) Persons included generally. The basic objective of section 
502(a) is to provide reasonable protection of funds or other property 
rather than to insure against every conceivable possibility of loss. 
Accordingly, a person shall be deemed to be ``handling'' funds or other 
property, so as to require bonding under that section, whenever his 
duties or activities with respect to given funds or other property are 
such that there is a significant risk of loss by reason of fraud or 
dishonesty on the part of such person, acting either alone or in 
collusion with others.
    (c) Physical contact as criterion of ``handling.'' Physical dealing 
with funds or other property is, under the principles above stated, not 
necessarily a controlling criterion in every case for determining the 
persons who ``handle'' within the meaning of section 502(a). Physical 
contact with cash, checks or similar property generally constitutes 
``handling.'' On the other hand, bonding may not be required for office 
personnel who from time to time perform counting, packaging, tabulating 
or similar duties which involve physical contact with checks, 
securities, or other funds or property but which are performed under 
conditions that cannot reasonably be said to give rise to significant 
risks with respect to the receipt, safekeeping or disbursement of funds 
or property. This may be the case where significant risks of fraud or 
dishonesty in the performance of duties of an essentially clerical 
character are precluded by the closeness of the supervision provided or 
by the nature of the funds or other property handled.
    (d) ``Handling'' funds or other property without physical contact. 
Personnel who do not physically handle funds or property may 
nevertheless ``handle'' within the meaning of section 502(a) where they 
have or perform significant duties with respect to the receipt, 
safekeeping or disbursement of funds or other property. For example, 
persons who have access to a safe deposit box or similar depository for 
the purpose of adding to, withdrawing, checking or otherwise dealing 
with its contents may be said to ``handle'' these contents within the 
meaning of section 502(a) even though they do not at any time during the 
year actually secure such access for such purposes. Similarly, those 
charged with general responsibility for the safekeeping of funds or 
other property such as the treasurer of a labor organization, should be 
considered as handling funds or other property. It should also be noted 
that the extent of actual authority to deal with funds or property may 
be immaterial where custody or other functions have been granted which 
create a substantial risk of fraud or dishonesty. Thus, if a bank 
account were maintained in the name of a particular officer or employee 
whose signature the bank were authorized to honor, it could not be 
contended that he did not ``handle'' funds merely because he had been 
forbidden by the organization or by his superiors to make deposits or 
withdrawals.
    (e) Disbursement of funds or other property. It is clear from both 
the purpose and language of section 502(a) that personnel described in 
the section who actually disburse funds or other property, such as 
officers or trustees authorized to sign checks or persons who make cash 
disbursements, must be considered as handling such funds and property. 
Whether others who may influence, authorize or direct disbursements must 
also be considered to handle funds or other property can be determined 
only by reference to the specific duties or responsibilities of these 
persons in a particular labor organization or trust.

[28 FR 14394, Dec. 27, 1963, as amended at 30 FR 14925, Dec. 2, 1965]



Sec. 453.9  ``Handling'' of funds or other property by personnel 
functioning as a governing body.

    (a)(1) General considerations. For many labor organizations and 
trusts special problems involving disbursements will be presented by 
those who, as trustees or members of an executive board or similar 
governing body, are,

[[Page 206]]

as a group, charged with general responsibility for the conduct of the 
business and affairs of the organization or trust. Often such bodies may 
approve contracts, authorize disbursements, audit accounts and exercise 
similar responsibilities.
    (2) It is difficult to formulate any general rule for such cases. 
The mere fact that a board of trustees, executive board or similar 
governing body has general supervision of the affairs of a trust or 
labor organization, including investment policy and the establishment of 
fiscal controls, would not necessarily mean that the members of this 
body ``handle'' the funds or other property of the organization. On the 
other hand, the facts may indicate that the board or other body 
exercises such close, day-to-day supervision of those directly charged 
with the handling of funds or other property that it might be 
unreasonable to conclude that the members of such board were not, as a 
group, also participating in the handling of such funds and property. 
\8\ Also, whether or not the members of a particular board of trustees 
or executive board handle funds or other property in their capacity as 
such, certain of these members may hold other offices or have other 
functions involving duties directly related to the receipt, safekeeping 
or disbursement of the funds or other property of the organization so 
that it would be necessary that they be bonded irrespective of their 
board membership.
---------------------------------------------------------------------------

    \8\ As to group coverage, see Sec. 453.16.
---------------------------------------------------------------------------

    (b) Nature of responsibilities as affecting ``handling.'' With 
respect to particular responsibilities of boards of trustees, executive 
boards and similar bodies in disbursing funds or other property, much 
would depend upon the system of fiscal controls provided in a particular 
trust or labor organization. The allocation of funds or authorization of 
disbursements for a particular purpose is not necessarily handling of 
funds within the meaning of the section. If the allocation or 
authorization merely permits expenditures by a disbursing officer who 
has responsibility for determining the validity or propriety of 
particular expenditures, then the action of the disbursing officer and 
not that of the board would constitute handling. But if pursuant to a 
direction of the board, the disbursing officer performed only 
ministerial acts without responsibility to determine whether the 
expenditures were valid or appropriate, then the board's action would 
constitute handling. In such a case, the absence of fraud or dishonesty 
in the acts of the disbursing officer alone would not necessarily 
prevent fraudulent or dishonest disbursements. The person or persons who 
are charged with or exercise responsibility for determining whether 
specific disbursements are bona fide, regular, and in accordance with 
the applicable constitution, trust instrument, resolution or other laws 
or documents governing the disbursement of funds or other property 
should be considered to handle such funds and property and be bonded 
accordingly.

[28 FR 14394, Dec. 27, 1963, as amended at 30 FR 14926, Dec. 2, 1965]

                            Scope of the Bond



Sec. 453.10  The statutory provision.

    The statute requires that every covered person ``shall be bonded to 
provide protection against loss by reason of acts of fraud or dishonesty 
on his part directly or through connivance with others.''

[30 FR 14926, Dec. 2, 1965]



Sec. 453.11  The nature of the ``duties'' to which the bonding requirement 
relates.

    The bonding requirement in section 502(a) relates only to duties of 
the specified personnel in connection with their handling of funds or 
other property to which this section refers. It does not have reference 
to the special duties imposed upon representatives of labor 
organizations by virtue of the positions of trust which they occupy, 
which are dealt with in section 501(a), and for which civil remedies for 
breach of the duties are provided in section 501(b). The fact that the 
bonding requirement is limited to personnel who handle funds or other 
property indicates the correctness of these conclusions. They find 
further support in the differences between sections 501(a) and 502(a) of 
the Act which sufficiently indicate

[[Page 207]]

that the scope of the two sections is not coextensive.



Sec. 453.12  Meaning of fraud or dishonesty.

    The term ``fraud or dishonesty'' shall be deemed to encompass all 
those risks of loss that might arise through dishonest or fraudulent 
acts in handling of funds as delineated in Sec. Sec. 453.8 and 453.9. 
As such, the bond must provide recovery for loss occasioned by such acts 
even though no personal gain accrues to the person committing the act 
and the act is not subject to punishment as a crime or misdemeanor, 
provided that within the law of the State in which the act is committed, 
a court would afford recovery under a bond providing protection against 
fraud or dishonesty. As usually applied under State laws, the term 
``fraud or dishonesty'' encompasses such matters as larceny, theft, 
embezzlement, forgery, misappropriation, wrongful abstraction, wrongful 
conversion, willful misapplication or any other fraudulent or dishonest 
acts resulting in financial loss.

[30 FR 14926, Dec. 2, 1965]

                             Amount of Bonds



Sec. 453.13  The statutory provision.

    Section 502(a) of the Act requires that the bond of each ``person'' 
handling ``funds or other property'' who must be bonded be fixed ``at 
the beginning of the organization's fiscal year * * * in an amount not 
less than 10 percentum of the funds handled by him and his predecessor 
or predecessors, if any, during the preceding fiscal year, but in no 
case more than $500,000.'' If there is no preceding fiscal year, the 
amount of each required bond is set at not less than $1,000 for local 
labor organizations and at not less than $10,000 for other labor 
organizations or for trusts in which a labor organization is interested.



Sec. 453.14  The meaning of ``funds.''

    While the protection of bonds required under the Act must extend to 
any actual loss from the acts of fraud or dishonesty in the handling of 
``funds or other property'' (Sec. 453.7), the amount of the bond 
depends upon the ``funds'' handled by the personnel bonded and their 
predecessors, if any. ``Funds'' as here used is not defined in the Act. 
As in the case of ``funds or other property'' discussed earlier in Sec. 
453.7, the term would not include property of a relatively permanent 
nature such as land, buildings, furniture, fixtures, or property 
similarly held for use in the operations of the labor organization or 
trust rather than as quick assets. In its normal meaning, however, 
``funds'' would include, in addition to cash, items such as bills and 
notes, government obligations and marketable securities, and in a 
particular case might well include all the ``funds or other property'' 
handled during the year in the positions occupied by the particular 
personnel for whom the bonding is required. In any event, it is clear 
that bonds fixed in the amount of 10 percent or more of the total 
``funds or other property'' handled by the occupants of such positions 
during the preceeding fiscal year would be in amounts sufficient to meet 
the statutory requirement. Of course, in situations where a significant 
saving in bonding costs might result from computing separately the 
amounts of ``funds'' and of ``other property'' handled, criteria for 
distinguishing particular items to be included in the quoted terms would 
prove useful. While the criteria to be applied in a particular case 
would depend on all the relevant facts concerning the specific items 
handled, it may be assumed as a general principle that at least those 
items which may be handled in a manner similar to cash and which involve 
a like risk of loss should be included in computing the amount of 
``funds'' handled.

[30 FR 14926, Dec. 2, 1965]



Sec. 453.15  The meaning of funds handled ``during the preceding fiscal year''.

    The funds handled by personnel required to be bonded and their 
predecessors during the course of a fiscal year would ordinarily include 
the total of whatever such funds were on hand at the beginning of the 
fiscal year plus any items received or added in the form of funds during 
the year for any reason, such as dues, fees and assessments, trust 
receipts, or items received

[[Page 208]]

as a result of sales, investments, reinvestments, or otherwise. It would 
not, however, be necessary to count the same item twice in arriving at 
the total funds handled by personnel during a year. Once an item 
properly within the category of ``funds'' had been counted as handled by 
personnel during a year, there would be no need to count it again should 
it subsequently be handled by the same personnel during the same year in 
some other connection.



Sec. 453.16  Funds handled by more than one person.

    The amount of any required bond is determined by the total funds 
handled during a fiscal year by each ``person'' bonded, and any 
predecessors of such ``person''. The term ``person'', however, is 
defined in section 3(d) of the Act to include ``one or more'' of the 
various individuals or entities there listed, so that there may be 
numerous instances where the bond of a ``person'' may include several 
individuals. Wherever this is the case, the amount of the bond for that 
``person'' would, of course, be based on the total funds handled by all 
who comprise the ``person'' included in the bond, without regard to the 
precise extent to which any particular individual might have handled 
such funds. This would be the situation, for example, in many cases of 
joint or group activity in the performance of a single function. It 
would also be true where various individuals performed the same type of 
function for an organization, even though they acted independently of 
one another. There would, however, be no objection to bonding each 
individual separately, and fixing the amount of his bond on the basis of 
the total funds which he individually handled during the year.



Sec. 453.17  Term of the bond.

    The amount of any required bond must in each instance be based on 
funds handled ``during the preceding fiscal year,'' and must be fixed 
``at the beginning'' of an organization's fiscal year--that is, as soon 
after the date when such year begins as the necessary information from 
the preceding fiscal year can practicably be ascertained. This does not 
mean, however, that a new bond must be obtained each year. There is 
nothing in the Act which prohibits a bond for a term longer than one 
year, with whatever advantages such a bond might offer by way of a lower 
premium, but at the beginning of each fiscal year during its term the 
bond must be in at least the requisite amount. If it is below that level 
at that time for any reason, it would then be necessary either to modify 
the existing bond to increase it to the proper amount or to obtain a 
supplementary bond. In either event, the terms upon which this could 
best be done would be left to the parties directly concerned.

                              Form of Bonds



Sec. 453.18  Bonds ``individual or schedule in form''.

    (a) General consideration. In addition to such substantive matters 
as the personnel who must be bonded and the scope and the amount of the 
prescribed bonds, which have been discussed previously, the form of the 
bonds is the subject of a specific provision of section 502(a). Under 
this provision, a bond meeting the substantive requirements of the 
section may be either ``individual or schedule in form.'' These terms 
are not specially defined and could be descriptive of a variety of 
possible forms of bonds. According to trade usage, an individual bond is 
a single bond covering a single named individual to a designated amount, 
and bonds ``schedule in form'' may include either name schedule or 
position schedule bonds. A name schedule bond is typically a single bond 
covering a series or list of named individuals, each of whom is bonded 
separately to a designated amount. A position schedule bond is typically 
a single bond providing coverage with respect to any occupant or holder 
of one or more specified positions during the term of the bond, each 
office or position being covered to a designated amount. In a statute 
relating to trade or commerce, it is frequently helpful to consider 
whatever trade or commercial usages may have developed with respect to 
the statutory terms. \9\ References to individual, schedule and position 
schedule bonds

[[Page 209]]

may be found in other acts of Congress and indicate a clear awareness of 
trade usages and terminology in this field. \10\
---------------------------------------------------------------------------

    \9\ See 2 Sutherland, Statutory Construction (3d ed. 1943) Sec. 
4919.
    \10\ Act of August 24, 1954, 68 Stat. 335, 12 U.S.C. 1766(g); Act of 
August 9, 1955, 69 Stat. 618, 6 U.S.C. 14.
---------------------------------------------------------------------------

    (b) Particular forms of bonds. If the phrase ``individual or 
schedule in form'' is considered in light of the trade usages, section 
502(a) at least permits bonds which are individual, name schedule or 
position schedule in form. Of course, section 502(a) does not require 
any particular type of individual or schedule bonds where different 
types exist or may be developed. It could not be said, for example, that 
a bond which schedules positions according to similarities in duties, 
risks, or required amounts of coverage is not ``schedule in form'' 
within the meaning of section 502(a) merely because the particular form 
of scheduling involved was not employed in bonds current at the time the 
section became law. A more specific illustration would be a bond 
scheduling shop stewards as a group because of the similar duties they 
perform in collecting dues, or members of an executive board as a group 
because of the fact that duties are imposed upon the board as such. A 
bond of this type would be ``schedule in form'' within the meaning of 
section 502(a) and, assuming adequacy of amount and coverage of all 
persons whom it is necessary to bond, such a bond would be in conformity 
with the statute. Also, a bond scheduling positions or groups of 
positions according to amounts of funds handled by occupants of the 
positions could be viewed as ``schedule in form.''
    (c) Additional bonding. Section 502(a) neither prevents additional 
bonding beyond that required by its terms nor prescribes the form in 
which such additional coverage may be taken. Thus, so long as a 
particular bond is schedule in form as to the personnel required to be 
bonded and schedules coverage of these persons in at least the minimum 
required amount, additional coverage either as to personnel or amount 
may be taken in any form either in the same or in separate bonds. A bond 
which provided name or position schedule coverage for all persons 
required to be bonded under section 502(a), each scheduled person or 
position being bonded in at least the required minimum amount, would 
clearly be ``schedule in form'' within the meaning of section 502(a) 
regardless of the extent or form of additional schedule or blanket 
coverage provided in the same bond.



Sec. 453.19  The designation of the ``insured'' on bonds.

    Since section 502 is intended to protect the funds or other property 
of labor organizations and trusts in which labor organizations are 
interested, bonds under this section should allow for enforcement or 
recovery for the benefit of the labor organization or trust concerned by 
those ordinarily authorized to act for it in such matters. For example, 
in the case of a local labor organization, a bond would not be 
appropriate under section 502 if it protected only the interests of a 
national or international labor organization with which the local labor 
organization is affiliated or if it designated as the insured only some 
particular officer of the organization who does not legally represent it 
in similar formal instruments.

Qualified Agents, Brokers, and Surety Companies for the Placing of Bonds



Sec. 453.20  Corporate sureties holding grants of authority from the 
Secretary of the Treasury.

    The provisions of section 502(a) require that any surety company 
with which a bond is placed pursuant to that section must be a corporate 
surety which holds a grant of authority from the Secretary of the 
Treasury under the Act of July 30, 1947 (6 U.S.C. 6-13), as an 
acceptable surety on Federal bonds. That Act provides, among other 
things, that in order for a surety company to be eligible for such grant 
of authority, it must be incorporated under the laws of the United 
States or of any State and the Secretary of the Treasury shall be 
satisfied of certain facts relating to its authority and capitalization. 
Such grants of authority are evidenced by Certificates of Authority 
which are issued by the Secretary of the Treasury and which expire on 
the

[[Page 210]]

June 30 following the date of their issuance. A list of the companies 
holding such Certificates of Authority is published annually in the 
Federal Register, usually in July. Changes in the list, occurring 
between July 1 and June 30, either by addition to or removal from the 
list of companies, are also published in the Federal Register following 
each such change.

[28 FR 14394, Dec. 27, 1963, as amended at 50 FR 31311, Aug. 1, 1985]



Sec. 453.21  Interests held in agents, brokers, and surety companies.

    (a) Section 502(a) of the Act prohibits the placing of bonds 
required therein through any agent or broker or with any surety company 
in which any labor organization or any officer, agent, shop steward, or 
other representative of a labor organization has any direct or indirect 
interest. The purpose of this provision, as shown by its legislative 
history, is to insure against the existence of any ``financial or other 
influential'' interests which would affect the objectivity of the action 
of agents, brokers, or surety companies in bonding the personnel 
specified in the section. \11\ It appears, therefore, that it was the 
intent of Congress to prevent the placing of bonds through agents or 
brokers, and with surety companies, in which any labor organization or 
any officer, agent, shop steward, or other representative of a labor 
organization holds more than a nominal interest.
---------------------------------------------------------------------------

    \11\ Daily Cong. Rec. 9114, Senate, June 8, 1959; Record of Hearings 
before a Joint Subcommittee of the Committee on Education and Labor, 
House of Representatives, 86th Congress, 1st Session, on H.R. 3540, H.R. 
3302, H.R. 4473 and H.R. 4474, p. 1607.
---------------------------------------------------------------------------

    (b) Since the statute provides that either a direct or indirect 
interest by a labor organization or by the specified persons may 
disqualify an agent, broker, or surety company from having a bond placed 
through or with it, the disqualification would be effective if a labor 
organization or any of the specified persons are in a position to 
influence or control the activities or operations of such brokers, 
agents, or surety companies, by virtue of interests held either directly 
by them or by relatives or third parties which they own or control. The 
question of whether the relationship between the labor organization or 
the specified persons on the one hand, and another party or parties 
holding an interest in a broker, agent, or surety company on the other 
hand, is so close as to put the former in a position to influence or 
control the activities or operations of such broker, agent, or surety 
company through the latter, presents a question of fact which must 
necessarily be determined in each case in the light of all the pertinent 
circumstances.
    (c) It is also to be noted that the statute does not appear to 
restrict the disqualification to cases in which a direct or indirect 
interest is held by a labor organization as a whole, or by a substantial 
number of officers, agents, shop stewards, or other representatives of a 
labor organization, but provides for the disqualification also in cases 
where any one officer, agent, shop steward, or other representative of a 
labor organization holds such an interest.

[28 FR 14394, Dec. 27, 1963, as amended at 63 FR 33780, June 19, 1998]

                        Miscellaneous Provisions



Sec. 453.22  Prohibition of certain activities by unbonded persons.

    (a) Section 502(a) provides that persons who are not covered by 
bonds as required by that section shall not be permitted to receive, 
handle, disburse, or otherwise exercise custody or control of the funds 
or other property of a labor organization or of a trust in which a labor 
organization is interested. This prohibits personnel who are required to 
be bonded, as explained in Sec. 453.8 from performing any of these acts 
without being covered by the required bonds. In addition, this provision 
makes it unlawful for any person with power to do so to delegate or 
assign the duties of receiving, handling, disbursing, or otherwise 
exercising custody or control of such funds or property to any person 
who is not bonded in accordance with the provisions of section 502(a).
    (b) The legislative history of the Act indicates, however, that it 
was not the intent of Congress to make compliance

[[Page 211]]

with the bonding requirements of section 502(a) a condition on the right 
of banks or other financial institutions to serve as the depository of 
the funds of labor organizations or trusts. Similarly, it appears that 
the provisions of that section do not require the bonding of brokers or 
other independent contractors who have contracted with labor 
organizations or trusts for the performance of functions which are 
normally not carried out by such labor organizations' or trusts' own 
officials or employees, such as the buying of securities, the 
performance of other investment functions, or the transportation of 
funds by armored truck. \12\
---------------------------------------------------------------------------

    \12\ See Sec. 453.6(b).
---------------------------------------------------------------------------



Sec. 453.23  Persons becoming subject to bonding requirements during 
fiscal year.

    Considering the purpose of section 502, the language of the 
prohibition should be considered to apply to persons who because of 
election, employment or change in duties begin to handle funds or other 
property during the course of a particular fiscal year. Bonds should be 
secured for such persons, in an amount based on the funds handled by 
their predecessors during the preceding fiscal year, before they are 
permitted to engage in any of the fund-handling activities referred to 
in the prohibition, unless coverage with respect to such persons is 
already provided by bonds in force meeting the requirements of section 
502(a).



Sec. 453.24  Payment of bonding costs.

    The Act does not prohibit payment of the cost of the bonds, required 
by section 502(a), by labor organizations or by trusts in which a labor 
organization is interested. The decision whether such costs are to be 
borne by the labor organization or trust or by the bonded person is left 
to the duly authorized discretion and agreement of the parties concerned 
in each case.



Sec. 453.25  Effective date of the bonding requirement.

    While the bonding provision in section 502(a) became effective on 
September 14, 1959, its requirement for obtaining bonds does not become 
applicable to a labor organization or a trust in which a labor 
organization is interested, or to the personnel of any such 
organization, until the subsequent date when such organization's next 
fiscal year begins. This is so because the Act requires each such bond 
to be fixed at the beginning of the organization's fiscal year in an 
amount based on funds handled in the preceding fiscal year, and it could 
not well have been intended that the obtaining of a bond would be 
necessary in advance of the time when it would be possible to meet this 
requirement.



Sec. 453.26  Powers of the Secretary of Labor to exempt.

    Section 502(a) of the Act provides that when in the opinion of the 
Secretary of Labor a labor organization has made other bonding 
arrangements which would provide the protection required at comparable 
cost or less, he may exempt such labor organization from placing a bond 
through a surety company holding a grant of authority from the Secretary 
of the Treasury under the Act of July 30, 1947 (6 U.S.C. 6-13), as 
acceptable surety on Federal bonds.

[30 FR 14926, Dec. 2, 1965]

[[Page 212]]



                    SUBCHAPTER B_STANDARDS OF CONDUCT





PART 457_GENERAL--Table of Contents




                       Subpart A_Purpose and Scope

Sec.
457.1 Purpose and scope.

          Subpart B_Meaning of Terms as Used in This Subchapter

457.10 CSRA; FSA; CAA; LMRDA.
457.11 Agency, employee, labor organization, dues, Department, activity, 
          employing office.
457.12 Authority; Board.
457.13 Assistant Secretary.
457.14 Standards of conduct for labor organizations.
457.15 District Director.
457.16 Chief, DOE.
457.17 Administrative Law Judge.
457.18 Chief Administrative Law Judge.
457.19 Party.
457.20 Intervenor.

    Authority: 5 U.S.C. 7120, 7134; 22 U.S.C. 4117; 2 U.S.C. 1351(a)(1); 
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 50 FR 31311, Aug. 1, 1985, unless otherwise noted.



                       Subpart A_Purpose and Scope



Sec. 457.1  Purpose and scope.

    The regulations contained in this subchapter are designed to 
implement 5 U.S.C. 7120 and 22 U.S.C. 4117, which relate to the 
standards of conduct for labor organizations in the Federal sector set 
forth in title VII of the Civil Service Reform Act of 1978 and chapter 
10 of the Foreign Service Act of 1980. They prescribe procedures and 
basic principles which the Assistant Secretary of Labor will utilize in 
effectuating the standards of conduct required of labor organizations 
composed of Federal government employees that are covered by these Acts. 
(Regulations implementing the other provisions of title VII of the Civil 
Service Reform Act are issued by the Federal Labor Relations Authority, 
the General Counsel of the Federal Labor Relations Authority, and the 
Federal Service Impasses Panel in title 5 of the Code of Federal 
Regulations. Regulations implementing the other provisions of chapter 10 
of the Foreign Service Act are issued by the Foreign Service Labor 
Relations Board, the Federal Labor Relations Authority, the General 
Counsel of the Federal Labor Relations Authority, and the Foreign 
Service Impasse Disputes Panel in title 22 of the Code of Federal 
Regulations.)\1\
---------------------------------------------------------------------------

    \1\ Pursuant to section 220(a)(1) of the Congressional 
Accountability Act of 1995, 2 U.S.C. 1351(a)(1), labor organizations 
covered by that statute are subject to the standards of conduct 
provisions of the Civil Service Reform Act, 5 U.S.C. 7120, and are 
therefore subject to the regulations in this subchapter. Regulations 
implementing the Congressional Accountability Act were issued at 142 
Cong. R. S12062 (daily ed., October 1, 1996) and 142 Cong. R. H10369 
(Daily ed., September 12, 1996).

[50 FR 31311, Aug. 1, 1985, as amended at 62 FR 6093, Feb. 10, 1997]



           Subpart B_Meaning of Terms as Used in This Chapter



Sec. 457.10  CSRA; FSA; CAA; LMRDA.

    CSRA means the Civil Service Reform Act of 1978; FSA means the 
Foreign Service Act of 1980; CAA means the Congressional Accountability 
Act of 1995; LMRDA means the Labor-Management Reporting and Disclosure 
Act of 1959, as amended.

[62 FR 6093, Feb. 10, 1997]



Sec. 457.11  Agency, employee, labor organization, dues, Department, 
activity, employing office.

    Agency, employee, labor organization, and dues, when used in 
connection with the CSRA, have the meanings set forth in 5 U.S.C. 7103. 
Employee, labor organization, and dues, when used in connection with the 
FSA, have the meanings set forth in 22 U.S.C. 4102; Department, when 
used in connection with the FSA, means the Department of State, except 
that with reference to the exercise of functions under the FSA with 
respect to another agency authorized to utilize the Foreign Service 
personnel system, such term means that other agency. Covered employee, 
employee, employing office, and agency, when used in connection with the 
CAA, have the meanings

[[Page 213]]

set forth in 2 U.S.C. 1301 and 1351(a)(2). Activity means any facility, 
organizational entity, or geographical subdivision or combination 
thereof of any agency or employing office.

[62 FR 6093, Feb. 10, 1997]



Sec. 457.12  Authority; Board.

    Authority means the Federal Labor Relations Authority as described 
in the CSRA, 5 U.S.C. 7104 and 7105. Board, when used in connection with 
the FSA, means the Foreign Service Labor Relations Board as described in 
the FSA, 22 U.S.C. 4106(a). ``Board,'' when used in connection with the 
CAA, means the Board of Directors of the Office of Compliance as 
described in 2 U.S.C. 1301 and 1381(b).

[62 FR 6093, Feb. 10, 1997]



Sec. 457.13  Assistant Secretary.

    Assistant Secretary means the Assistant Secretary of Labor for 
Employment Standards, head of the Employment Standards 
Administration.\2\
---------------------------------------------------------------------------

    \2\ Pursuant to Secretary of Labor's Order No. 5-96 (62 FR 107, 
January 2, 1997), the Assistant Secretary for Employment Standards has 
the responsibility and authority for implementing the standards of 
conduct provisions of the CSRA and the FSA.

[62 FR 6093, Feb. 10, 1997]



Sec. 457.14  Standards of conduct for labor organizations.

    Standards of conduct for labor organizations shall have the meaning 
as set forth in the CSRA, 5 U.S.C. 7120, and the FSA, 22 U.S.C. 4117, 
and as amplified in part 458 of this subchapter. The standards of 
conduct provisions of the CSRA and the regulations in this subchapter 
are applicable to labor organizations covered by the CAA pursuant to 2 
U.S.C. 1351(a)(1).

[62 FR 6093, Feb 10, 1997]



Sec. 457.15  District Director.

    District Director means the Director of a district office within the 
Office of Labor-Management Standards, Employment Standards 
Administration.

[63 FR 33780, June 19, 1998]



Sec. 457.16  Chief, DOE.

    Chief, DOE means the Chief of the Division of Enforcement within the 
Office of Labor-Management Standards, Employment Standards 
Administration.

[63 FR 33780, June 19, 1998]



Sec. 457.17  Administrative Law Judge.

    Administrative Law Judge means the Chief Administrative Law Judge or 
any Administrative Law Judge designated by the Chief Administrative Law 
Judge to conduct a hearing in cases under 5 U.S.C. 7120 or 22 U.S.C. 
4117 as implemented by part 458 of this subchapter and such other 
matters as may be assigned.



Sec. 457.18  Chief Administrative Law Judge.

    Chief Administrative Law Judge means the Chief Administrative Law 
Judge, U.S. Department of Labor, Washington, DC 20210.



Sec. 457.19  Party.

    Party means any person, employee, group of employees, labor 
organization, Department, activity or agency: (a) Filing a complaint, 
petition, request, or application; (b) named in a complaint, petition, 
request, or application; or (c) whose intervention in a proceeding has 
been permitted or directed by the Assistant Secretary, Chief 
Administrative Law Judge, or Administrative Law Judge, as the case may 
be.



Sec. 457.20  Intervenor.

    Intervenor means a party in a proceeding whose intervention has been 
permitted or directed by the Assistant Secretary, Chief Administrative 
Law Judge, or Administrative Law Judge, as the case may be.



PART 458_STANDARDS OF CONDUCT--Table of Contents




   Subpart A_Substantive Requirements Concerning Standards of Conduct

Sec.
458.1 General.
458.2 Bill of rights of members of labor organizations.
458.3 Application of LMRDA labor organization reporting requirements.

[[Page 214]]

                              Trusteeships

458.26 Purposes for which a trusteeship may be established.
458.27 Prohibited acts relating to subordinate body under trusteeship.
458.28 Presumption of validity.

                                Elections

458.29 Election of officers.

                    Additional Provisions Applicable

458.30 Removal of elected officers.
458.31 Maintenance of fiscal integrity in the conduct of the affairs of 
          labor organizations.
458.32 Provision for accounting and financial controls.
458.33 Prohibition of conflicts of interest.
458.34 Loans to officers or employees.
458.35 Bonding requirements.
458.36 Prohibitions against certain persons holding office or 
          employment.
458.37 Prohibition of certain discipline.
458.38 Deprivation of rights under the CSRA or FSA by violence or threat 
          of violence.

        Subpart B_Proceedings for Enforcing Standards of Conduct

458.50 Investigations.
458.51 Inspection of records and questioning.
458.52 Report of investigation.
458.53 Filing of complaints.

      Procedures Involving Bill of Rights or Prohibited Discipline

458.54 Complaints alleging violations of Sec. 458.2, Bill of rights of 
          members of labor organizations, or Sec. 458.37, prohibition 
          of certain discipline.
458.55 Content of complaint.
458.56 Service on respondent.
458.57 Additional information and report.
458.58 Dismissal of complaint.
458.59 Review of dismissal.
458.60 Actionable complaint.
458.61 Transfer and consolidation of cases.
458.62 Hearing procedures.

                Procedures Involving Election of Officers

458.63 Complaints alleging violations of Sec. 458.29, election of 
          officers.
458.64 Investigations; dismissal of complaint.
458.65 Procedures following actionable complaint.

                      Other Enforcement Procedures

458.66 Procedures for institution of enforcement proceedings.
458.67 Standards complaint; initiation of proceedings.
458.68 Answer.

                  Subpart C_Hearing and Related Matters

458.69 Notice of hearing.
458.70 Administrative Law Judge.
458.71 Procedure upon admission of facts.
458.72 Motions and requests.
458.73 Prehearing conferences.
458.74 Conduct of hearing.
458.75 Intervention.
458.76 Duties and powers of the Administrative Law Judge.
458.77 Rights of parties.
458.78 Rules of evidence.
458.79 Burden of proof.
458.80 Unavailability of Administrative Law Judges.
458.81 Objection to conduct of hearing.
458.82 Motions after a hearing.
458.83 Waiver of objections.
458.84 Oral argument at the hearing.
458.85 Transcript.
458.86 Filing of brief.
458.87 Proposed findings and conclusions.
458.88 Submission of the Administrative Law Judge's recommended decision 
          and order to the Assistant Secretary; exceptions.
458.89 Contents of exceptions to Administrative Law Judge's recommended 
          decision and order.
458.90 Briefs in support of exceptions.
458.91 Action by the Assistant Secretary.
458.92 Compliance with decisions and orders of the Assistant Secretary.
458.93 Stay of remedial action.

    Authority: 5 U.S.C. 7105, 7111, 7120, 7134; 22 U.S.C. 4107, 4111, 
4117; 2 U.S.C. 1351(a)(1); Secretary's Order No. 5-96, 62 FR 107, 
January 2, 1997.

    Source: 45 FR 15158, Mar. 7, 1980, unless otherwise noted. 
Redesignated at 50 FR 31311, Aug. 1, 1985.



   Subpart A_Substantive Requirements Concerning Standards of Conduct



Sec. 458.1  General.

    The term LMRDA means the Labor-Management Reporting and Disclosure 
Act of 1959, as amended (29 U.S.C. 401 et seq.). Unless otherwise 
provided in this part or in the CSRA or FSA, any term in any section of 
the LMRDA which is incorporated into this part by reference, and any 
term in this part which is also used in the LMRDA, shall have the 
meaning which that term has under the LMRDA, unless the context in which 
it is used indicates that such meaning is not applicable. In applying 
the standards contained in this subpart the Assistant Secretary will be 
guided

[[Page 215]]

by the interpretations and policies followed by the Department of Labor 
in applying the provisions of the LMRDA and by applicable court 
decisions.



Sec. 458.2  Bill of rights of members of labor organizations.

    (a)(1) Equal rights. Every member of a labor organization shall have 
equal rights and privileges within such organization to nominate 
candidates, to vote in elections or referendums of the labor 
organization, to attend membership meetings and to participate in the 
deliberations and voting upon the business of such meetings, subject to 
reasonable rules and regulations in such organization's constitution and 
bylaws.
    (2) Freedom of speech and assembly. Every member of any labor 
organization shall have the right to meet and assemble freely with other 
members; and to express any views, arguments or opinions; and to express 
at meetings of the labor organization his views upon candidates in an 
election of the labor organization or upon any business properly before 
the meeting, subject to the organization's established and reasonable 
rules pertaining to the conduct of meetings: Provided, That nothing 
herein shall be construed to impair the right of a labor organization to 
adopt and enforce reasonable rules as to the responsibility of every 
member toward the organization as an institution and to his refraining 
from conduct that would interfere with its performance of its legal or 
contractual obligations.
    (3) Dues, initiation fees, and assessments. Except in the case of a 
federation of national or international labor organizations, the rates 
of dues and initiation fees payable by members of any labor organization 
in effect on the date this section is published shall not be increased, 
and no general or special assessment shall be levied upon such members, 
except:
    (i) In the case of a local organization, (A) by majority vote by 
secret ballot of the members in good standing voting at a general or 
special membership meeting, after reasonable notice of the intention to 
vote upon such question, or (B) by majority vote of the members in good 
standing voting in a membership referendum conducted by secret ballot; 
or
    (ii) In the case of a labor organization, other than a local labor 
organization or a federation of national or international labor 
organizations, (A) by majority vote of the delegates voting at a regular 
convention, or at a special convention of such labor organization held 
upon not less than 30 days written notice to the principal office of 
each local or constituent labor organization entitled to such notice, or 
(B) by majority vote of the members in good standing of such labor 
organization voting in a membership referendum conducted by secret 
ballot, or (C) by majority vote of the members of the executive board or 
similar governing body of such labor organization, pursuant to express 
authority contained in the constitution and bylaws of such labor 
organization: Provided, That such action on the part of the executive 
board or similar governing body shall be effective only until the next 
regular convention of such labor organization.
    (4) Protection of the right to sue. No labor organization shall 
limit the right of any member thereof to institute an action in any 
court, or in a proceeding before any administrative agency, irrespective 
of whether or not the labor organization or its officers are named as 
defendants or respondents in such action or proceedings, or the right of 
any member of a labor organization to appear as a witness in any 
judicial, administrative, or legislative proceeding, or to petition any 
legislature or to communicate with any legislator: Provided, That any 
such member may be required to exhaust reasonable hearing procedures 
(but not to exceed a 4-month lapse of time) within such organization, 
before instituting legal or administrative proceedings against such 
organizations or any officer thereof.
    (5) Safeguards against improper disciplinary action. No member of 
any labor organization may be fined, suspended, expelled, or otherwise 
disciplined, except for nonpayment of dues by such organization or by 
any officer thereof unless such member has been (i) served with written 
specific charges; (ii) given a reasonable time to prepare his defense; 
(iii) afforded a full and fair hearing.
    (b) Any provision of the constitution and bylaws of any labor 
organization

[[Page 216]]

which is inconsistent with the provisions of this section shall not be a 
defense to any proceeding instituted against the labor organization 
under this part or under the CSRA or FSA.
    (c) Nothing contained in this section shall limit the rights and 
remedies of any member of a labor organization under any State or 
Federal law or before any court or other tribunal, or under the 
constitution and bylaws of any labor organization.
    (d) It shall be the duty of the secretary or corresponding principal 
officer of each labor organization, in the case of a local labor 
organization, to forward a copy of each agreement made by such labor 
organization with an agency, Department or activity to any employee who 
requests such a copy and whose rights as such employee are directly 
affected by such agreement, and in the case of a labor organization 
other than a local labor organization, to forward a copy of any such 
agreement to each constituent unit which has members directly affected 
by such agreement; and such officer shall maintain at the principal 
office of the labor organization of which he is an officer, copies of 
any such agreement made or received by such labor organization, which 
copies shall be available for inspection by any member or by any 
employee whose rights are affected by such agreement. An employee's 
rights under this paragraph shall be enforceable in the same manner as 
the rights of a member.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31312, Aug. 1, 1985]



Sec. 458.3  Application of LMRDA labor organization reporting requirements.

    The reporting provisions of parts 402, 403, and 408 of this chapter 
shall apply to labor organizations subject to the requirements of the 
CSRA or FSA.

(Approved by the Office of Management and Budget under control number 
1215-0188)

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 59 FR 15116, Mar. 31, 1994; 63 FR 33780, June 19, 1998]

                              Trusteeships



Sec. 458.26  Purposes for which a trusteeship may be established.

    Trusteeships shall be established and administered by a labor 
organization over a subordinate body only in accordance with the 
constitution and bylaws of the organization which has assumed 
trusteeship over the subordinate body and for the purpose of (a) 
correcting corruption or financial malpractice, (b) assuring the 
performance of negotiated agreements or other duties of a representative 
of employees, (c) restoring democratic procedures, or (d) otherwise 
carrying out the legitimate objects of such labor organization.



Sec. 458.27  Prohibited acts relating to subordinate body under trusteeship.

    During any period when a subordinate body of a labor organization is 
in trusteeship, (a) the votes of delegates or other representatives from 
such body in any convention or election of officers of the labor 
organization shall not be counted unless the representatives have been 
chosen by secret ballot in an election in which all the members in good 
standing of such subordinate body were eligible to participate; and (b) 
no current receipts or other funds of the subordinate body except the 
normal per capita tax and assessments payable by subordinate bodies not 
in trusteeship shall be transferred directly or indirectly to the labor 
organization which has imposed the trusteeship; Provided, however, That 
nothing contained in this section shall prevent the distribution of the 
assets of a labor organization in accordance with its constitution and 
bylaws upon the bona fide dissolution thereof.



Sec. 458.28  Presumption of validity.

    In any proceeding involving Sec. 458.26, a trusteeship established 
by a labor organization in conformity with the procedural requirements 
of its constitution and bylaws and authorized or ratified after a fair 
hearing either before the executive board or before such other body as 
may be provided in accordance with its constitution and bylaws shall be 
presumed valid for a period of 18

[[Page 217]]

months from the date of its establishment and shall not be subject to 
attack during such period except upon clear and convincing proof that 
the trusteeship was not established or maintained in good faith for 
purposes allowable under Sec. 458.26. After the expiration of 18 months 
the trusteeship shall be presumed invalid in any such proceeding, unless 
the labor organization shall show by clear and convincing proof that the 
continuation of the trusteeship is necessary for a purpose allowable 
under Sec. 458.26.

                                Elections



Sec. 458.29  Election of officers.

    Every labor organization subject to the CSRA or FSA shall conduct 
periodic elections of officers in a fair and democratic manner. All 
elections of officers shall be governed by the standards prescribed in 
sections 401 (a), (b), (c), (d), (e), (f) and (g) of the LMRDA to the 
extent that such standards are relevant to elections held pursuant to 
the provisions of 5 U.S.C. 7120 or 22 U.S.C. 4117 .

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated and 
amended at 50 FR 31311, 31312, Aug. 1, 1985]

                    Additional Provisions Applicable



Sec. 458.30  Removal of elected officers.

    When an elected officer of a local labor organization is charged 
with serious misconduct and the constitution and bylaws of such 
organization do not provide an adequate procedure meeting the standards 
of Sec. 417.2(b) of this chapter for removal of such officer, the labor 
organization shall follow a procedure which meets those standards.

[62 FR 6094, Feb. 10, 1997]



Sec. 458.31  Maintenance of fiscal integrity in the conduct of the 
affairs of labor organizations.

    The standards of fiduciary responsibility prescribed in section 
501(a) of the LMRDA are incorporated into this subpart by reference and 
made a part hereof.



Sec. 458.32  Provision for accounting and financial controls.

    Every labor organization shall provide accounting and financial 
controls necessary to assure the maintenance of fiscal integrity.



Sec. 458.33  Prohibition of conflicts of interest.

    (a) No officer or agent of a labor organization shall, directly or 
indirectly through his spouse, minor child, or otherwise (1) have or 
acquire any pecuniary or personal interest which would conflict with his 
fiduciary obligation to such labor organization, or (2) engage in any 
business or financial transaction which conflicts with his fiduciary 
obligation.
    (b) Actions prohibited by paragraph (a) of this section include, but 
are not limited to, buying from, selling, or leasing directly or 
indirectly to, or otherwise dealing with the labor organization, its 
affiliates, subsidiaries, or trusts in which the labor organization is 
interested, or having an interest in a business any part of which 
consists of such dealings, except bona fide investments of the kind 
exempted from reporting under section 202(b) of the LMRDA. The receipt 
of salaries and reimbursed expenses for services actually performed or 
expenses actually incurred in carrying out the duties of the officer or 
agent is not prohibited.



Sec. 458.34  Loans to officers or employees.

    No labor organization shall directly or indirectly make any loan to 
any officer or employee of such organization which results in a total 
indebtedness on the part of such officer or employee to the labor 
organization in excess of $2,000.



Sec. 458.35  Bonding requirements.

    Every officer, agent, shop steward, or other representative or 
employee of any labor organization subject to the CSRA or FSA (other 
than a labor organization whose property and annual financial receipts 
do not exceed $5,000 in value), or of a trust in which a labor 
organization is interested, who handles funds or other property thereof 
shall be bonded in accordance with the principles of section 502(a) of 
the LMRDA.

[[Page 218]]

In enforcing this requirement the Assistant Secretary will be guided by 
the interpretations and policies followed by the Department of Labor in 
applying the provisions of section 502(a) of the LMRDA and by applicable 
court decisions.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at 
50 FR 31311, Aug. 1, 1985]



Sec. 458.36  Prohibitions against certain persons holding office or 
employment.

    The prohibitions against holding office or employment in a labor 
organization contained in section 504(a) of the LMRDA are incorporated 
into this subpart by reference and made a part hereof. The prohibitions 
shall also be applicable to any person who has been convicted of, or who 
has served any part of a prison term resulting from his conviction of, 
violating 18 U.S.C. 1001 by making a false statement in any report 
required to be filed pursuant to this subpart, or who has been 
determined by the Assistant Secretary after an appropriate proceeding 
pursuant to Sec. Sec. 458.66 through 458.92 to have willfully violated 
Sec. 458.27: Provided, however, That the Assistant Secretary or such 
other person as he may designate may exempt a person from the 
prohibition against holding office or employment or may reduce the 
period of the prohibition where he determines that it would not be 
contrary to the purposes of the CSRA or the FSA and this section to 
permit a person barred from holding office or employment to hold such 
office or employment.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31312, Aug. 1, 1985]



Sec. 458.37  Prohibition of certain discipline.

    No labor organization or any officer, agent, shop steward, or other 
representative or any employee thereof shall fine, suspend, expel, or 
otherwise discipline any of its members for exercising any right to 
which he is entitled under the provisions of the CSRA or FSA or this 
subchapter.



Sec. 458.38  Deprivation of rights under the CSRA or FSA by violence or 
threat of violence.

    No labor organization or any officer, agent, shop steward, or other 
representative or any employee thereof shall use, conspire to use, or 
threaten to use force or violence to restrain, coerce, or intimidate, or 
attempt to restrain, coerce, or intimidate any member of a labor 
organization for the purpose of interfering with or preventing the 
exercise of any right to which he is entitled under the provisions of 
the CSRA or FSA or of this subchapter.



        Subpart B_Proceedings for Enforcing Standards of Conduct



Sec. 458.50  Investigations.

    (a) When he believes it necessary in order to determine whether any 
person has violated or is about to violate any provision of Sec. Sec. 
458.26 through 458.30, the Chief, DOE may cause an investigation to be 
conducted.
    (b) When he believes it necessary in order to determine whether any 
person has violated or is about to violate any provision of this part 
(other than Sec. Sec. 458.2, 458.26 through 458.30 or 458.37), a 
District Director may conduct an investigation.
    (c) The authority to investigate possible violations of this part 
(other than Sec. 458.2 or 458.37) shall not be contingent upon receipt 
of a complaint.

[50 FR 31312, Aug. 1, 1985. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]



Sec. 458.51  Inspection of records and questioning.

    In connection with such investigation the Chief, DOE or a District 
Director or his representative may inspect such records and question 
such persons as he may deem necessary to enable him to determine the 
relevant facts. Every labor organization, its officers, employees, 
agents, or representatives shall cooperate fully in any investigation 
and shall testify and produce the records or other documents requested 
in connection with the investigation.

[[Page 219]]

This section shall be enforced in accordance with the procedures in 
Sec. Sec. 458.66 through 458.92.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31312, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 
1997]



Sec. 458.52  Report of investigation.

    The Chief, DOE may report to interested persons concerning any 
matter which he deems to be appropriate as a result of an investigation 
of possible violations of Sec. Sec. 458.26 through 458.30. The District 
Director may report to interested persons concerning any matter which he 
deems to be appropriate as a result of an investigation of possible 
violations of any provision of this part (other than Sec. Sec. 458.2, 
458.26 through 458.30 and 458.37).

[50 FR 31312, Aug. 1, 1985. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]



Sec. 458.53  Filing of complaints.

    A complaint alleging violations of this part may be filed with any 
district office, or any other office of the Office of Labor-Management 
Standards.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31313, Aug. 1, 1985; 63 FR 33780, June 19, 1998]

      Procedures Involving Bill of Rights or Prohibited Discipline



Sec. 458.54  Complaints alleging violations of Sec. 458.2, Bill of rights 

of members of labor organization, or Sec. 458.37, prohibition of certain 
          discipline.

    Any member of a labor organization whose rights under the provisions 
of Sec. 458.2 or Sec. 458.37 are alleged to have been infringed or 
violated, may file a complaint in accordance with Sec. 458.53: 
Provided, however, That such member may be required to exhaust 
reasonable hearing procedures (but not to exceed a 4-month lapse of 
time) within such organization.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at 
50 FR 31311, Aug. 1, 1985]



Sec. 458.55  Content of complaint.

    (a) The complaint shall contain appropriate identifying information 
and a clear and concise statement of the facts constituting the alleged 
violation.
    (b) The complainant shall submit with his complaint a statement 
setting forth the procedures, if any, invoked to remedy the alleged 
violation, including the dates when such procedures were invoked and 
copies of any written ruling or decision which he has received.



Sec. 458.56  Service on respondent.

    Upon the filing of a complaint, a copy of the complaint shall be 
served upon the respondent, and a written statement of such service 
shall be furnished to the District Director.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]



Sec. 458.57  Additional information and report.

    Upon the filing of a complaint pursuant to Sec. Sec. 458.54 through 
458.56, the District Director shall obtain such additional information 
as he deems necessary, including the positions of the parties and any 
offers of settlement.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31313, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 
1997]



Sec. 458.58  Dismissal of complaint.

    If the District Director determines that a reasonable basis for the 
complaint has not been established, or that an offer of settlement 
satisfactory to the complainant has been made, he may dismiss the 
complaint. If he dismisses the complaint, he shall furnish the 
complainant with a written statement of the grounds for dismissal, 
sending a copy of the statement to the respondent.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated and 
amended at 50 FR 31311, 31313, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994; 
62 FR 6094, Feb. 10, 1997]



Sec. 458.59  Review of dismissal.

    The complainant may obtain a review of a dismissal by filing a 
request for review with the Assistant Secretary within fifteen (15) days 
of service of the notice of dismissal. A copy of such request shall be 
served on the District Director and the respondent, and a

[[Page 220]]

statement of service shall be filed with the Assistant Secretary. The 
request for review shall contain a complete statement of the facts and 
reasons upon which a request is based.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]



Sec. 458.60  Actionable complaint.

    If it appears to the District Director that there is a reasonable 
basis for the complaint, and that no offer of settlement satisfactory to 
the complainant has been made, he shall refer the matter to the Chief 
Administrative Law Judge, U.S. Department of Labor, for the issuance of 
a notice of hearing as set forth in Sec. 458.69.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]



Sec. 458.61  Transfer and consolidation of cases.

    In any matter arising pursuant to the regulations in this 
subchapter, whenever it appears necessary in order to effectuate the 
purposes of the CSRA or FSA or to avoid unnecessary costs or delay, the 
District Director may consolidate cases within his own area or may 
transfer such cases to any other area, for the purpose of consolidation 
with any proceedings which may have been instituted in, or transferred 
to, such area.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at 
50 FR 31311, Aug. 1, 1985, as amended at 59 FR 15117, Mar. 31, 1994; 62 
FR 6094, Feb. 10, 1997]



Sec. 458.62  Hearing procedures.

    The proceedings following issuance of the notice of hearing shall be 
as provided in Sec. Sec. 458.69 through 458.92 of this part.

                Procedures Involving Election of Officers



Sec. 458.63  Complaints alleging violations of Sec. 458.29, election of 
officers.

    (a) A member of a labor organization may file a complaint alleging 
violations of Sec. 458.29 within 1 calendar month after he has (1) 
exhausted the remedies available under the constitution and bylaws of 
the labor organization and of any parent body, or (2) invoked such 
available remedies without obtaining a final decision within 3 calendar 
months of such invocation.
    (b) The complaint shall contain a clear and concise statement of the 
facts constituting the alleged violation(s), the remedies which have 
been invoked under the constitution and bylaws of the labor organization 
and when such remedies were invoked.
    (c) The complainant shall submit with his complaint a copy of any 
ruling or decision he has received in connection with the subject matter 
of his complaint.



Sec. 458.64  Investigations; dismissal of complaint.

    (a) If it is determined after preliminary inquiry that a complaint 
is deficient in any of the following respects, the District Director 
shall conduct no investigation:
    (1) The complainant is not a member of the labor organization which 
conducted the election being challenged;
    (2) The labor organization is not subject to the CSRA or FSA;
    (3) The election was not a regular periodic election of officers;
    (4) The allegations, if true, do not constitute a violation or 
violations of Sec. 458.29;
    (5) The complainant has not complied with the requirements of Sec. 
458.63(a).
    (b) If investigation discloses (1) that there has been no violation 
or (2) that a violation has occurred but could not have affected the 
outcome or (3) that a violation has occurred but has been remedied, the 
Chief, DOE shall issue a determination dismissing the complaint and 
stating the reasons for his action.
    (c) A determination dismissing the complaint may be reviewed by the 
Assistant Secretary, but only on the basis of deciding whether the 
Chief, DOE's decision was arbitrary and capricious. The request for 
review must be made within fifteen (15) days after service of notice of 
dismissal.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]

[[Page 221]]



Sec. 458.65  Procedures following actionable complaint.

    (a) If the Chief, DOE concludes that there is probable cause to 
believe that a violation has occurred which may have affected the 
outcome and which has not been remedied, he shall proceed in accordance 
with Sec. Sec. 458.66 through 458.92.
    (b) The challenged election shall be presumed valid pending a final 
decision thereon by the Assistant Secretary, and in the interim the 
affairs of the organization shall be conducted by the officers elected 
or in such other manner as its constitution and bylaws may provide.
    (c) When the Chief, DOE supervises an election pursuant to an order 
of the Assistant Secretary issued under Sec. 458.70 or Sec. 458.91, he 
shall certify to the Assistant Secretary the names of the persons 
elected. The Assistant Secretary shall thereupon issue an order 
declaring such persons to be the officers of the labor organization.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31313, Aug. 1, 1985; 62 FR 6094, FEb. 10, 1997]

                      Other Enforcement Procedures



Sec. 458.66  Procedures for institution of enforcement proceedings.

    (a) Whenever it appears to the Chief, DOE that a violation of any 
provision of Sec. Sec. 458.26 through 458.30 has occurred and has not 
been remedied, he shall immediately notify any appropriate person and 
labor organization. Within fifteen (15) days following receipt of such 
notification, any such person or labor organization may request a 
conference with the Chief, DOE or his representative concerning such 
alleged violation.
    (b) Whenever it appears to a District Director that a violation of 
this part (other than Sec. Sec. 458.2, 458.26-458.30, or 458.37) has 
occurred and has not been remedied, he shall immediately notify any 
appropriate person and labor organization. Within fifteen (15) days 
following receipt of such notification, any such person or labor 
organization may request a conference with the District Director or his 
representative concerning such alleged violation.
    (c) At any conference held pursuant to this section, the Chief, DOE 
or District Director may enter into an agreement providing for 
appropriate remedial action. If no person or labor organization requests 
such a conference, or upon failure to reach agreement following any such 
conference, the Chief, DOE or District Director shall institute 
enforcement proceedings by filing a complaint with the Chief 
Administrative Law Judge, U.S. Department of Labor, and shall cause a 
copy of the complaint to be served on each respondent named therein. If 
an agreement is reached and the Chief, DOE or District Director 
concludes that there has not been compliance with all the terms of the 
agreement, he may refer the matter to the Assistant Secretary for 
appropriate enforcement action or file a complaint with the Chief 
Administrative Law Judge.

[50 FR 31313, Aug. 1, 1985. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 1997]



Sec. 458.67  Standards complaint; initiation of proceedings.

    A complaint filed under Sec. 458.66 shall constitute the 
institution of a formal enforcement proceeding in the name of the Chief, 
DOE or District Director, who shall be the only complaining party in the 
proceeding and shall, where he believes it appropriate, refrain from 
disclosing the identity of any person who called the violation to his 
attention (except in proceedings involving violations of Sec. 458.29, 
Election of officers). The complaint shall include the following:
    (a) The name and identity of each respondent.
    (b) A clear and concise statement of the facts alleged to constitute 
violations of the CSRA or FSA or of this part.
    (c) A statement of the relief requested.
    (d) In any complaint filed by the Chief, DOE on the basis of a 
complaint received from a member of a labor organization pursuant to 
Sec. 458.63, a statement setting forth the procedures, if any, followed 
to invoke available remedies, including the dates when such procedures 
were invoked, and the substance of any ruling or decision received by 
the complaining member

[[Page 222]]

from the labor organization or any parent body.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31313, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 
1997]



Sec. 458.68  Answer.

    (a) Within twenty (20) days from the service of the complaint the 
respondent shall file an answer thereto with the Chief Administrative 
Law Judge and shall serve a copy on all parties. The answer shall be 
signed by the respondent or his attorney or other agent or 
representative.
    (b) The answer (1) shall contain a statement of the facts which 
constitute the grounds of defense, and shall specifically admit, 
explain, or deny each of the allegations of the complaint unless the 
respondent is without knowledge, in which case the answer shall so 
state; or (2) shall state that the respondent admits all of the 
allegations in the complaint. Failure to file an answer to or plead 
specifically to any allegation in the complaint shall constitute an 
admission of such allegation.



                  Subpart C_Hearing and Related Matters



Sec. 458.69  Notice of hearing.

    The Chief Administrative Law Judge shall issue and cause to be 
served upon each of the parties a notice of hearing. The notice of 
hearing shall include the following:
    (a) The name and identity of each party and the case number.
    (b) A statement of the authority and jurisdiction under which the 
hearing is to be held.
    (c) A statement of the time and place of the hearing which shall be 
not less than fifteen (15) days after service of the notice of hearing.



Sec. 458.70  Administrative Law Judge.

    Each enforcement proceeding instituted pursuant to this part shall 
be conducted before an Administrative Law Judge designated by the Chief 
Administrative Law Judge for the Department of Labor except, however, 
that when the Administrative Law Judge approves a stipulated agreement 
for appropriate remedial action, he shall prepare his recommended 
decision and order adopting that agreement and transfer the case to the 
Assistant Secretary. The Assistant Secretary may order the remedial 
action set forth in the stipulated agreement or take such other action 
as he deems appropriate.



Sec. 458.71  Procedure upon admission of facts.

    The admission of all the material allegations of fact in the 
complaint shall constitute a waiver of hearing. Upon such admission, the 
Administrative Law Judge without further hearing shall prepare his 
recommended decision and order in which he shall adopt as his proposed 
findings of fact the material facts alleged in the complaint.



Sec. 458.72  Motions and requests.

    (a) Motions and requests made prior to the hearing shall be filed 
with the Chief Administrative Law Judge. The moving party shall serve a 
copy of all motions and requests on all other parties. Motions during 
the course of the hearing may be stated orally or filed in writing and 
shall be made part of the record. Each motion shall state the particular 
order, ruling, or action desired, and the grounds therefor. The 
Administrative Law Judge is authorized to rule upon all motions made 
prior to the filing of his report.
    (b) A party may request the attendance of witnesses and/or the 
production of documents at a hearing held pursuant to this part, by 
written application before the hearing or orally during the hearing. 
Copies of an application filed before the opening of the hearing shall 
be served on the other parties, who may file written objections to the 
request within seven (7) days after such service. The Administrative Law 
Judge after consideration of any objections, shall grant the request 
provided the specified testimony and/or documents appear to be necessary 
to the matters under investigation. If the Administrative Law Judge 
denies the request he shall set forth the basis for his ruling. Upon the 
failure of any party or officer or employee of any party to comply with 
such a request which has been granted by the Administrative Law Judge, 
the Administrative Law Judge

[[Page 223]]

and the Assistant Secretary may disregard all related evidence offered 
by the party failing to comply with the request or take such other 
action as may be appropriate.
    (c) Employees who have been determined to be necessary as witnesses 
at a hearing shall be granted official time only for such participation 
as occurs during their regular work hours and when they would otherwise 
be in a work or paid leave status. Participation as witnesses includes 
the time necessary to travel to and from the site of a hearing, and the 
time spent giving testimony and waiting to give testimony, when such 
time falls during regular work hours.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31313, Aug. 1, 1985]



Sec. 458.73  Prehearing conferences.

    (a) Upon his own motion or the motion of the parties, the 
Administrative Law Judge may direct the parties or their counsel to meet 
with him for a conference to consider:
    (1) Simplification of the issues;
    (2) Necessity or desirability of amendments to pleadings for 
purposes of clarification, simplification, or limitations;
    (3) Stipulations, admissions of fact, and contents and authenticity 
of documents;
    (4) Limitation of the number of expert witnesses; and
    (5) Such other matters as may tend to expedite the disposition of 
the proceeding.
    (b) The record shall show the matters disposed of by order and by 
agreement in such prehearing conferences. The subsequent course of the 
proceeding shall be controlled by such action.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31313, Aug. 1, 1985]



Sec. 458.74  Conduct of hearing.

    Hearings shall be conducted by an Administrative Law Judge and shall 
be open to the public unless otherwise ordered by the Administrative Law 
Judge.



Sec. 458.75  Intervention.

    Any person desiring to intervene in a hearing shall file a motion in 
writing in accordance with the procedures set forth in Sec. 458.72 or, 
if made at the hearing, may move orally on the record, stating the 
grounds upon which such person claims an interest. Such a motion shall 
be filed with the Administrative Law Judge who shall rule upon such 
motion.



Sec. 458.76  Duties and powers of the Administrative Law Judge.

    It shall be the duty of the Administrative Law Judge to inquire 
fully into the facts as they relate to the matter before him and to 
prepare, serve and submit his recommended decision and order pursuant to 
Sec. 458.88. Upon assignment to him and before transfer of the case to 
the Assistant Secretary, the Administrative Law Judge shall have the 
authority to:
    (a) Grant requests for appearance of witnesses or production of 
ducuments;
    (b) Rule upon offers of proof and receive relevant evidence;
    (c) Take or cause depositions to be taken whenever the ends of 
justice would be served thereby;
    (d) Limit lines of questioning or testimony which are immaterial, 
irrelevant, or unduly repetitious;
    (e) Regulate the course of the hearing and if appropriate, exclude 
from the hearing persons who engage in misconduct and strike all related 
testimony of witnesses refusing to answer any questions ruled to be 
proper;
    (f) Hold conferences for the settlement or simplification of the 
issues by consent of the parties or upon his own motion;
    (g) Dispose of procedural requests, motions, or similar matters 
which shall be made part of the record of the proceeding, including 
motions to amend pleadings; also to recommend dismissal of cases or 
portions thereof, and to order hearings reopened prior to issuance of 
his recommended decision and order;
    (h) Examine and cross-examine witnesses and introduce into the 
record documentary or other evidence;
    (i) Request the parties at any time during the hearing to state 
their respective positions concerning any issue in the case or theory in 
support thereof;

[[Page 224]]

    (j) Continue, at his discretion, the hearing from day-to-day, or 
adjourn it to a later date or to a different place, by announcement 
thereof at the hearing or by other appropriate notice;
    (k) Take official notice of any material fact not appearing in 
evidence in the record, which is among the traditional matters of 
judicial notice and also concerning which the Department of Labor by 
reason of its functions is presumed to be expert: Provided, That the 
parties shall be given adequate notice, at the hearing or by reference 
in the Administrative Law Judge's recommended decision and order, of the 
matters so noticed, and shall be given adequate opportunity to show the 
contrary;
    (l) Correct or approve proposed corrections of the official 
transcript when deemed necessary; and
    (m) Take any other action necessary under the foregoing and not 
prohibited by these regulations.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31313, Aug. 1, 1985]



Sec. 458.77  Rights of parties.

    Any party shall have the right to appear at such hearing in person, 
by counsel, or by other representative, to examine and cross-examine 
witnesses, and to introduce into the record documentary or other 
relevant evidence, except that the participation of any party shall be 
limited to the extent prescribed by the Administrative Law Judge. Two 
(2) copies of documentary evidence shall be submitted and a copy 
furnished to each of the other parties. Stipulations of fact may be 
introduced in evidence with respect to any issue.



Sec. 458.78  Rules of evidence.

    The technical rules of evidence do not apply. Any evidence may be 
received, except that an Administrative Law Judge may exclude any 
evidence or offer of proof which is immaterial, irrelevant, unduly 
repetitious, or customarily privileged. Every party shall have a right 
to present his case by oral and documentary evidence and to submit 
rebuttal evidence.



Sec. 458.79  Burden of proof.

    In a hearing concerning an alleged violation of Sec. 458.2 (Bill of 
rights of members of labor organizations) or Sec. 458.37 (Prohibition 
of certain discipline), the complainant shall have the burden of proving 
the allegations of the complaint by a preponderance of the evidence. In 
a hearing concerning an alleged violation of Sec. Sec. 458.26-458.30, 
the Chief, DOE shall have the burden of proving the allegations of the 
complaint by a preponderance of the evidence. In a hearing concerning an 
alleged violation of other standards of conduct matters, the District 
Director shall have the burden of proving the allegations of the 
complaint by a preponderance of the evidence.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
31313, Aug. 1, 1985; 59 FR 15117, Mar. 31, 1994; 62 FR 6094, Feb. 10, 
1997]



Sec. 458.80  Unavailability of Administrative Law Judges.

    In the event the Administrative Law Judge designated to conduct the 
hearing becomes unavailable, the Chief Administrative Law Judge shall 
designate another Administrative Law Judge for the purpose of further 
hearing or issuance of a recommended decision and order on the record as 
made, or both.



Sec. 458.81  Objection to conduct of hearing.

    (a) Any objection with respect to the conduct of the hearing, 
including any objection to the introduction of evidence, may be stated 
orally or in writing accompanied by a short statement of the grounds for 
such objection and included in the record. No such objection shall be 
deemed waived by further participation in the hearing. Such objection 
shall not stay the conduct of the hearing.
    (b) Automatic exceptions will be allowed to all adverse rulings. 
Rulings by the Administrative Law Judge shall not be appealed prior to 
the transfer of the case to the Assistant Secretary, but shall be 
considered by the Assistant Secretary only upon the filing of exceptions 
to the Administrative Law Judge's recommended decision and order in 
accordance with Sec. 458.88.

[[Page 225]]



Sec. 458.82  Motions after a hearing.

    All motions made after the transfer of the case to the Assistant 
Secretary, except motions to correct the record under Sec. 458.76(l), 
shall be made in writing to the Assistant Secretary. The moving party 
shall serve a copy of all motion papers on all other parties. A 
statement of service shall accompany the motion. Answers, if any, must 
be served on all parties and the original thereof, together with a 
statement of service, shall be filed with the Assistant Secretary after 
the hearing, within seven (7) days after service of the moving papers 
unless it is otherwise directed.



Sec. 458.83  Waiver of objections.

    Any objection not duly urged before an Administrative Law Judge 
shall be deemed waived.



Sec. 458.84  Oral argument at the hearing.

    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.



Sec. 458.85  Transcript.

    An official reporter shall make the only official transcript of such 
proceedings. Copies of the official transcript will be provided to the 
parties, in accordance with the provisions of part 70 of this title, or 
they may be examined in the district office in whose geographic 
jurisdiction the hearing has been held.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 63 FR 33780, June 19, 1998]



Sec. 458.86  Filing of brief.

    Any party desiring to submit a brief to the Administrative Law Judge 
shall file the original within ten (10) days after the close of the 
hearing: Provided, however, That prior to the close of the hearing and 
for good cause, the Administrative Law Judge may grant a reasonable 
extension of time. Copies of such brief shall be served on all of the 
parties to the proceeding. Requests for additional time in which to file 
a brief under authority of this section made after the hearing shall be 
made in writing to the Administrative Law Judge and copies thereof 
served on the other parties. A statement of such service shall be 
furnished. A request for extension of time shall be received not later 
than three (3) days before the date such briefs are due. In the absence 
of the Administrative Law Judge such requests shall be ruled upon by the 
Chief Administrative Law Judge. No reply brief may be filed except by 
permission of the Administrative Law Judge.



Sec. 458.87  Proposed findings and conclusions.

    Within fifteen (15) days following the close of the hearing, the 
parties may submit proposed findings and conclusions to the 
Administrative Law Judge, together with supporting reasons therefor, 
which shall become part of the record.



Sec. 458.88  Submission of the Administrative Law Judge's recommended 
decision and order to the Assistant Secretary; exceptions.

    (a) After the close of the hearing, and the receipt of briefs, or 
findings and conclusions, if any, the Administrative Law Judge shall 
prepare his recommended decision and order expeditiously. The 
recommended decision and order shall contain findings of fact, 
conclusions, and the reasons or basis therefor including credibility 
determinations, and recommendations as to the disposition of the case 
including the remedial action to be taken.
    (b) The Administrative Law Judge shall cause his recommended 
decision and order to be served promptly on all parties to the 
proceeding. Thereafter, the Administrative Law Judge shall transfer the 
case to the Assistant Secretary including his recommended decision and 
order and the record. The record shall include the complaint, the notice 
of hearing, motions, rulings, orders, official transcript of the 
hearing, stipulations, objections, depositions, exhibits, documentary 
evidence and any briefs or other documents submitted by the parties.
    (c) Exceptions to the Administrative Law Judge's recommended 
decision and order may be filed by any party with the Assistant 
Secretary within fifteen

[[Page 226]]

(15) days after service of the recommended decision and order: Provided, 
however, That the Assistant Secretary may for good cause shown extend 
the time for filing such exceptions. Requests for additional time in 
which to file exceptions shall be in writing, and copies thereof shall 
be served on the other parties. Requests for extension of time must be 
received no later than three (3) days before the date the exceptions are 
due. Copies of such exceptions and any supporting briefs shall be served 
on all other parties, and a statement of such service shall be furnished 
to the Assistant Secretary.



Sec. 458.89  Contents of exceptions to Administrative Law Judge's 
recommended decision and order.

    (a) Exceptions to an Administrative Law Judge's recommended decision 
and order shall:
    (1) Set forth specifically the questions upon which exceptions are 
taken;
    (2) Identify that part of the Administrative Law Judge's recommended 
decision and order to which objection is made;
    (3) Designate by precise citation of page the portions of the record 
relied on, state the grounds for the exceptions and include the citation 
of authorities unless set forth in a supporting brief.
    (b) Any exception to a ruling, finding, conclusion, or 
recommendation which is not specifically urged shall be deemed to have 
been waived. Any exception which fails to comply with the foregoing 
requirements may be disregarded.



Sec. 458.90  Briefs in support of exceptions.

    (a) Any brief in support of exceptions shall contain only matters 
included within the scope of the exceptions and shall contain, in the 
order indicated, the following:
    (1) A concise statement of the case containing all that is material 
to the consideration of the questions presented;
    (2) A specification of the questions involved and to be argued;
    (3) The argument, presenting clearly the points of fact and law 
relied on in support of the position taken on each question, with 
specific page reference to the transcript and the legal or other 
material relied on.
    (b) Answering briefs to the exceptions may be filed with the 
Assistant Secretary within ten (10) days after service of the 
exceptions.



Sec. 458.91  Action by the Assistant Secretary.

    (a) After considering the Administrative Law Judge's recommended 
decision and order, the record, and any exceptions filed, the Assistant 
Secretary shall issue his decision affirming or reversing the 
Administrative Law Judge, in whole, or in part, or making such other 
disposition of the matter as he deems appropriate: Provided, however, 
That unless exceptions are filed which are timely and in accordance with 
Sec. 458.89, the Assistant Secretary may, at his discretion, adopt 
without discussion the recommended decision and order of the 
Administrative Law Judge, in which event the findings, conclusions, and 
recommendations of the Administrative Law Judge, as contained in his 
recommended decision and order, shall, upon appropriate notice to the 
parties, automatically become the decision of the Assistant Secretary.
    (b) Upon finding a violation of the CSRA, FSA or this part, the 
Assistant Secretary may order the respondent to cease and desist from 
such violative conduct and may require the respondent to take such 
affirmative action as he deems appropriate to effectuate the policies of 
the CSRA or FSA.
    (c) Upon finding no violation of the CSRA, FSA or this part, the 
Assistant Secretary shall dismiss the complaint.

[45 FR 15158, Mar. 7, 1980. Redesignated and amended at 50 FR 31311, 
Aug. 1, 1985]



Sec. 458.92  Compliance with decisions and orders of the Assistant Secretary.

    When remedial action is ordered, the respondent shall report to the 
Assistant Secretary, within a specified period, that the required 
remedial action has been effected. When the Assistant Secretary finds 
that the required remedial action has not been effected, he shall refer 
the matter for appropriate action to the Federal Labor Relations

[[Page 227]]

Authority (in the case of labor organizations covered by the CSRA), the 
Foreign Service Labor Relations Board (in the case of labor 
organizations covered by the FSA), or the Board of Directors of the 
Office of Compliance (in the case of labor organizations covered by the 
Congressional Accountability Act).

[62 FR 6094, Feb. 10, 1997]



Sec. 458.93  Stay of remedial action.

    In cases involving violations of this part, the Assistant Secretary 
may direct, subject to such conditions as he deems appropriate, that the 
remedial action ordered be stayed.



PART 459_MISCELLANEOUS--Table of Contents




Sec.
459.1 Computation of time for filing papers.
459.2 Additional time after service by mail.
459.3 Documents in a proceeding.
459.4 Service of pleading and other papers under this subchapter.
459.5 Rules to be construed liberally.

    Authority: 5 U.S.C. 7120, 7134; 22 U.S.C. 4117; 2 U.S.C. 1351(a)(1); 
Secretary's Order No. 5-96, 62 FR 107, January 2, 1997.

    Source: 45 FR 15165, Mar. 7, 1980, unless otherwise noted. 
Redesignated at 50 FR 31311, Aug. 1, 1985.



Sec. 459.1  Computation of time for filing papers.

    In computing any period of time prescribed by or allowed by the 
regulations contained in part 458 of this subchapter, the day of the 
act, event, or default after which the designated period of time begins 
to run, shall not be included. The last day of the period so computed is 
to be included unless it is a Saturday, Sunday or Federal legal holiday 
in which event the period shall run until the end of the next day which 
is neither a Saturday, Sunday, or a Federal legal holiday. When the 
period of time prescribed or allowed is seven (7) days or less, 
intermediate Saturdays, Sundays, and Federal legal holidays shall be 
excluded from the computations. When these regulations require the 
filing of any paper, such document must be received by the Assistant 
Secretary or the officer or agent designated to receive such matter 
before the close of business of the last day of the time limit, if any, 
for such filing or extension of time that may have been granted.



Sec. 459.2  Additional time after service by mail.

    Whenever a party has the right or is required to do some act 
pursuant to these regulations within a prescribed period after service 
of a notice or other paper upon him and the notice or paper is served on 
him by mail, five (5) days shall be added to the prescribed period: 
Provided, however, That five (5) days shall not be added if any 
extension of time may have been granted.



Sec. 459.3  Documents in a proceeding.

    (a) Title. Documents in any proceeding under part 458 of this 
subchapter, including correspondence, shall show the title of the 
proceeding and the case number, if any.
    (b) Signature. The original of each document required to be filed 
under these regulations shall be signed by the party or by an attorney 
or representative of record for the party, or by an officer of the 
party, and shall contain the address and telephone number of the person 
signing it.



Sec. 459.4  Service of pleading and other papers under this subchapter.

    (a) Method of service. Notices of hearing, decisions, orders and 
other papers may be served personally or by registered or certified mail 
or by telegraph. When service is by mail, the date of service shall be 
the day when the matter served is deposited in the United States mail.
    (b) Upon whom served. All papers, except as herein otherwise 
provided, shall be served upon all counsel of record and upon parties 
not represented by counsel or by their agents designated by them or by 
law and upon the Assistant Secretary, or his designated officer, or 
agent or Administrative Law Judge where appropriate. Service upon such 
counsel or representative shall constitute service upon the party, but a 
copy also shall be transmitted to the party.



Sec. 459.5  Rules to be construed liberally.

    (a) The regulations in this subchapter may be construed liberally to

[[Page 228]]

effectuate the purposes and provisions of the CSRA or FSA.
    (b) When an act is required or allowed to be done at or within a 
specified time, the Assistant Secretary may at any time order the period 
altered where it shall be manifest that strict adherence will work 
surprise or injustice or interfere with the proper effectuation of the 
CSRA or FSA.

[[Page 229]]



  SUBCHAPTER C_EMPLOYEE RIGHTS CONCERNING PAYMENT OF UNION DUES OR FEES





PART 470_OBLIGATIONS OF FEDERAL CONTRACTORS AND SUBCONTRACTORS; NOTICE OF 
EMPLOYEE RIGHTS CONCERNING PAYMENT OF UNION DUES OR FEES--Table of Contents




                      Subpart A_Preliminary Matters

Sec.
470.1 What definitions apply to this part?
470.2 Under the Executive Order, what employee notice clause must be 
          included in Government contracts?
470.3 What contracts are exempt from the employee notice clause 
          requirement?
470.4 What contractors or facilities are exempt from the posting 
          requirements?

    Subpart B_Compliance Evaluations, Complaint Investigations, and 
                         Enforcement Procedures

Sec.
470.10 How will the Department determine whether a contractor is in 
          compliance with the Executive Order and this part?
470.11 What are the procedures for filing and processing a complaint?
470.12 What are the procedures to be followed when a violation is found 
          during a complaint investigation or compliance evaluation?
470.13 Under what circumstances, and how, will enforcement proceedings 
          under the Executive Order be conducted?
470.14 What sanctions and penalties may be imposed for noncompliance, 
          and what procedures will the Department follow in imposing 
          such sanctions and penalties?
470.15 Under what circumstances must a contractor be provided the 
          opportunity for a hearing?
470.16 Under what circumstances may a contractor be reinstated?

                       Subpart C_Ancillary Matters

470.20 What authority under this Rule or the Executive Order may the 
          Secretary delegate, and under what circumstances?
470.21 Who will make rulings and interpretations under the Executive 
          Order and this part?
470.22 What actions may the Assistant Secretary take in the case of 
          intimidation and interference?
470.23 What other provisions apply to this part?

    Authority: E.O. 13201, 3 CFR, 2001 Comp., p.754, (66 FR 11221), 
issued pursuant to the Constitution and laws of the United States, 
including the Federal Property and Administrative Services Act, 40 
U.S.C. 471 et seq., now codified as amended at 40 U.S.C. 101 et seq.

    Source: 69 FR 16836, Mar. 29, 2004, unless otherwise noted.



                      Subpart A_Preliminary Matters



Sec. 470.1  What definitions apply to this part?

    (a) Assistant Secretary means the Assistant Secretary for Employment 
Standards, United States Department of Labor, or his or her designee.
    (b) Construction means the construction, rehabilitation, alteration, 
conversion, extension, demolition, or repair of buildings, highways, or 
other changes or improvements to real property, including facilities 
providing utility services. The term construction also includes the 
supervision, inspection, and other on-site functions incidental to the 
actual construction.
    (c) Construction work site means the general physical location of 
any building, highway, or other change or improvement to real property 
which is undergoing construction, rehabilitation, alteration, 
conversion, extension, demolition, or repair, and any temporary location 
or facility at which a contractor or subcontractor meets a demand or 
performs a function relating to the contract or subcontract.
    (d) Contract means, unless otherwise indicated, any Government 
contract or subcontract.
    (e) Contracting agency means any department, agency, establishment, 
or instrumentality in the executive branch of the Government, including 
any wholly owned Government corporation, which enters into contracts.
    (f) Contractor means, unless otherwise indicated, a prime contractor 
or subcontractor, at any tier.
    (g) Department means the U.S. Department of Labor.
    (h) Employee notice clause means the contract clause that Government 
contracting departments and agencies

[[Page 230]]

must include in all nonexempt Government contracts and subcontracts 
pursuant to Executive Order 13201.
    (i) Government means the Government of the United States of America.
    (j) Government contract means any agreement or modification thereof 
between any contracting agency and any person for the purchase, sale, or 
use of personal property or nonpersonal services. The term ``personal 
property,'' as used in this section, includes supplies, and contracts 
for the use of real property (such as lease arrangements), unless the 
contract for the use of real property itself constitutes real property 
(such as easements). The term ``nonpersonal services'' as used in this 
section includes, but is not limited to, the following services: 
utilities, construction, transportation, research, insurance, and fund 
depository. The term Government contract does not include:
    (1) Agreements in which the parties stand in the relationship of 
employer and employee; and
    (2) Federally assisted contracts.
    (k) Labor organization means any organization of any kind in which 
employees participate and which exists for the purpose, in whole or in 
part, of dealing with employers concerning grievances, labor disputes, 
wages, rates of pay, hours, or other terms or conditions of employment.
    (l) Modification of a contract means any alteration in the terms and 
conditions of that contract, including amendments, renegotiations, and 
renewals.
    (m) Order or Executive Order means Executive Order 13201 (66 FR 
11221, February 22, 2001).
    (n) Person means any natural person, corporation, partnership, 
unincorporated association, State or local government, and any agency, 
instrumentality, or subdivision of such a government.
    (o) Prime contractor means any person holding a contract with a 
contracting agency, and, for the purposes of subparts B and C of this 
part, includes any person who has held a contract subject to the 
Executive Order.
    (p) Related rules, regulations, and orders of the Secretary of 
Labor, as used in section 470.2 of this part, means rules, regulations, 
and relevant orders of the Assistant Secretary for Employment Standards, 
or his or her designee, issued pursuant to the Executive Order or this 
part.
    (q) Secretary means the Secretary of Labor, U.S. Department of 
Labor, or his or her designee.
    (r) Subcontract means any agreement or arrangement between a 
contractor and any person (in which the parties do not stand in the 
relationship of an employer and an employee):
    (1) For the purchase, sale or use of personal property or 
nonpersonal services which, in whole or in part, is necessary to the 
performance of any one or more contracts; or
    (2) Under which any portion of the contractor's obligation under any 
one or more contracts is performed, undertaken or assumed.
    (s) Subcontractor means any person holding a subcontract and, for 
the purposes of subparts B and C of this part, any person who has held a 
subcontract subject to the Executive Order.
    (t) Union means a labor organization as defined in paragraph (k) of 
this section.
    (u) Union-security agreement means an agreement entered into between 
a contractor and a labor organization which requires certain employees 
of the contractor to pay uniform periodic dues and/or fees, initiation 
fees, or other payments to that labor organization as a condition of 
employment.
    (v) United States, as used herein, shall include the several States, 
the District of Columbia, the Virgin Islands, the Commonwealth of Puerto 
Rico, Guam, American Samoa, the Commonwealth of the Northern Mariana 
Islands, and Wake Island.



Sec. 470.2  Under the Executive Order, what employee notice clause must 
be included in Government contracts?

    (a) Government contracts. Except in contracts exempted in accordance 
with Section 470.3 and collective bargaining agreements as defined in 5 
U.S.C. 7103(a)(8), all Government contracting agencies must, to the 
extent consistent with law, include the following provisions in 
Government contracts entered

[[Page 231]]

into on or after April 28, 2004, that resulted from solicitations issued 
on or after April 18, 2001:
    ``1. During the term of this contract, the contractor agrees to post 
a notice, of such size and in such form as the Secretary of Labor will 
prescribe, in conspicuous places in and about its plants and offices, 
including all places where notices to employees are customarily posted. 
The notice must include the following information (except that the last 
two sentences must not be included in notices posted in the plants or 
offices of carriers subject to the Railway Labor Act, as amended (45 
U.S.C. 151-188)).


``NOTICE TO EMPLOYEES

    ``Under Federal law, employees cannot be required to join a union or 
maintain membership in a union in order to retain their jobs. Under 
certain conditions, the law permits a union and an employer to enter 
into a union-security agreement requiring employees to pay uniform 
periodic dues and initiation fees. However, employees who are not union 
members can object to the use of their payments for certain purposes and 
can only be required to pay their share of union costs relating to 
collective bargaining, contract administration, and grievance 
adjustment.
    ``If you do not want to pay that portion of dues or fees used to 
support activities not related to collective bargaining, contract 
administration, or grievance adjustment, you are entitled to an 
appropriate reduction in your payment. If you believe that you have been 
required to pay dues or fees used in part to support activities not 
related to collective bargaining, contract administration, or grievance 
adjustment, you may be entitled to a refund and to an appropriate 
reduction in future payments.
    ``For further information concerning your rights, you may wish to 
contact the National Labor Relations Board (NLRB) either at one of its 
Regional offices or at the following address or toll-free 
number:National Labor Relations Board, Division of Information, 1099 
14th Street, NW., Washington, D.C. 20570, 1-866-667-6572, 1-866-315-6572 
(TTY).
    ``To locate the nearest NLRB office, see NLRB's website at http://
www.nlrb.gov.''
    ``2. The contractor will comply with all provisions of Executive 
Order 13201 of February 17, 2001, and related rules, regulations, and 
orders of the Secretary of Labor.
    ``3. In the event that the contractor does not comply with any of 
the requirements set forth in paragraphs (1) or (2) above, this contract 
may be cancelled, terminated, or suspended in whole or in part, and the 
contractor may be declared ineligible for further Government contracts 
in accordance with procedures authorized in or adopted pursuant to 
Executive Order 13201 of February 17, 2001. Such other sanctions or 
remedies may be imposed as are provided in Executive Order 13201 of 
February 17, 2001, or by rule, regulation, or order of the Secretary of 
Labor, or as are otherwise provided by law.
    ``4. The contractor will include the provisions of paragraphs (1) 
through (4) herein in every subcontract or purchase order entered into 
in connection with this contract unless exempted by rules, regulations, 
or orders of the Secretary of Labor issued pursuant to section 3 of 
Executive Order 13201 of February 17, 2001, so that such provisions will 
be binding upon each subcontractor or vendor. The contractor will take 
such action with respect to any such subcontract or purchase order as 
may be directed by the Secretary of Labor as a means of enforcing such 
provisions, including the imposition of sanctions for noncompliance: 
However, if the contractor becomes involved in litigation with a 
subcontractor or vendor, or is threatened with such involvement, as a 
result of such direction, the contractor may request the United States 
to enter into such litigation to protect the interests of the United 
States.''
    (b) Inclusion by reference. The employee notice clause need not be 
quoted verbatim in a contract, subcontract, or purchase order. The 
clause may be made part of the contract, subcontract, or purchase order 
by citation to 29 CFR part 470.
    (c) Adaptation of language. The Assistant Secretary may make such 
changes in the contractual provisions

[[Page 232]]

of the Executive Order as may be necessary to reflect Acts of Congress, 
clarifications in the law by the courts, or otherwise to fully and 
accurately inform employees of their rights under the Executive Order.
    (d) Obtaining employee notice poster. The required employee notice 
poster, printed by the Department, will be provided by the Federal 
contracting agency or may be obtained from the Division of 
Interpretations and Standards, Office of Labor-Management Standards, 
U.S. Department of Labor, 200 Constitution Avenue, NW., Room N-5605, 
Washington, DC 20210, or from any field office of the Department's 
Office of Labor-Management Standards or Office of Federal Contract 
Compliance Programs. A copy of the poster may also be downloaded from 
the Office of Labor-Management Standards Web site at www.olms.dol.gov. 
Additionally, contractors may reproduce and use exact duplicate copies 
of the Department's official poster.



Sec. 470.3  What contracts are exempt from the employee notice clause 
requirement?

    (a) Transactions below the Simplified Acquisition Threshold. The 
requirements of this part do not apply to Government contracts for 
purchases that fall below the Simplified Acquisition Threshold, as that 
threshold is defined in the Office of Federal Procurement Policy Act, 41 
U.S.C. 403. Therefore, the employee notice clause need not be included 
in contracts for purchases below that threshold, provided that--
    (1) No agency, contractor, or subcontractor is permitted to procure 
supplies or services in a way designed to avoid the applicability of the 
Order and this part; and
    (2) The employee notice clause must be included in contracts and 
subcontracts for indefinite quantities, unless the contracting agency or 
contractor has reason to believe that the amount to be ordered in any 
year under such a contract or subcontract will be less than the 
Simplified Acquisition Threshold.
    (b) Government contracts resulting from solicitations issued before 
April 18, 2001. Pursuant to section 14 of the Order, the requirements of 
this part do not apply to Government contracts that result from 
solicitations issued before April 18, 2001, the effective date of the 
Order.
    (c) Specific contracts. The Deputy Assistant Secretary for Labor-
Management Programs may exempt a contracting agency or any person from 
requiring the inclusion of any or all of the employee notice clause in 
any specific contract, subcontract, or purchase order when the Deputy 
Assistant Secretary deems that special circumstances in the national 
interest so require. Requests for such exemptions must be in writing, 
and must be directed to the Deputy Assistant Secretary for Labor-
Management Programs, U.S. Department of Labor, 200 Constitution Avenue, 
NW., Room N-5605, Washington, DC, 20210.
    (d) Withdrawal of exemption. When any contract or subcontract is of 
a class exempted under this section, the Deputy Assistant Secretary for 
Labor-Management Programs may withdraw the exemption for a specific 
contract or subcontract or group of contracts or subcontracts when, in 
the Deputy Assistant Secretary's judgment, such action is necessary or 
appropriate to achieve the purposes of the Order.



Sec. 470.4  What contractors or facilities are exempt from the posting 
requirements?

    (a) Number of employees. The requirement to post the employee notice 
given in Sec. 470.2(a) (hereafter, posting requirement) does not apply 
to contractors and subcontractors that employ fewer than 15 persons.
    (b) Union representation. The posting requirement does not apply to 
contractor establishments or construction work sites where no union has 
been formally recognized by the prime contractor or certified as the 
exclusive bargaining representative of the prime contractor's employees.
    (c) State law. The posting requirement does not apply to contractor 
establishments or construction work sites in jurisdictions where state 
law forbids enforcement of union-security agreements. For purposes of 
this paragraph, the term ``state'' is intended to include any of the 
entities identified as comprising the United States, as defined in Sec. 
470.1(2).

[[Page 233]]

    (d) Work not performed under Government contracts. Upon the written 
request of the contractor, the Deputy Assistant Secretary for Labor-
Management Programs may waive the posting requirements with respect to 
any of a contractor's facilities if the Deputy Assistant Secretary finds 
that the contractor has demonstrated that:
    (1) The facility is in all respects separate and distinct from 
activities of the contractor related to the performance of a contract; 
and
    (2) Such a waiver will not interfere with or impede the effectuation 
of the Executive Order.
    (e) Work outside the United States. The posting requirement does not 
apply to work performed outside the United States that does not involve 
the recruitment or employment of workers within the United States.



     Subpart B_Compliance Evaluations, Complaint Investigations and 
                         Enforcement Procedures



Sec. 470.10  How will the Department determine whether a contractor is 
in compliance with the Executive Order and this part?

    (a) The Deputy Assistant Secretary for Federal Contract Compliance 
may conduct a compliance evaluation to determine whether a contractor 
holding a nonexempt contract is in compliance with the requirements of 
this part. Such an evaluation may be limited to compliance with this 
part or may be included in a compliance evaluation conducted under other 
laws, Executive Orders, and/or regulations enforced by the Department.
    (b) During such an evaluation, a determination will be made whether:
    (1) The employee notice required by Section 470.2(a) is posted in 
conspicuous places in and about each of the contractor's establishments 
and/or construction work sites not exempted under section 470.4 of this 
part, including all places where notices to employees are customarily 
posted; and
    (2) The provisions of the employee notice clause are included in 
nonexempt Government contracts entered into on or after April 28, 2004, 
that resulted from solicitations issued on or after April 18, 2001.
    (c) The results of the evaluation will be documented in the 
evaluation record, which will include findings regarding the 
contractor's compliance with the requirements of the Executive Order and 
this part and, as applicable, conciliation efforts made, corrective 
action taken and/or enforcement recommended under Section 470.13.



Sec. 470.11  What are the procedures for filing and processing a complaint?

    (a) Filing complaints. An employee of a covered contractor may file 
a complaint alleging that the contractor has failed to post the employee 
notice as required by the Executive Order and this part; and/or has 
failed to include the employee notice clause in nonexempt subcontracts 
or purchase orders. Complaints may be filed with the Office of Labor-
Management Standards (OLMS) or the Office of Federal Contract Compliance 
Programs (OFCCP) at 200 Constitution Avenue, NW., Washington, DC 20210, 
or with any OLMS or OFCCP field office.
    (b) Contents of complaints. The complaint must be in writing and 
must include the name, address, and telephone number of the employee who 
filed the complaint (the complainant), the name and address of the 
contractor alleged to have violated the Executive Order, an 
identification of the alleged violation and the establishment or 
construction work site where it is alleged to have occurred, and any 
other pertinent information that will assist in the investigation and 
resolution of the complaint. The complainant must sign the complaint.
    (c) Complaint investigations. In investigating complaints filed with 
the Department under paragraph (a) of this section, the Deputy Assistant 
Secretary for Federal Contract Compliance will evaluate the allegations 
of the complaint and develop a case record. The record will include 
findings regarding the contractor's compliance with the requirements of 
the Executive Order and this part, and, as applicable, a description of 
conciliation efforts made, corrective action taken, and/or enforcement 
recommended.

[[Page 234]]



Sec. 470.12  What are the procedures to be followed when a violation is 
found during a complaint investigation or compliance evaluation?

    (a) If any complaint investigation or compliance evaluation 
indicates a violation of the Executive Order or this part, the 
Department will make reasonable efforts to secure compliance through 
conciliation.
    (b) The contractor must correct the violation found by the 
Department (for example, by posting the required employee notice, and/or 
by amending its subcontracts or purchase orders with nonexempt 
subcontractors and vendors to include the employee notice clause), and 
must commit, in writing, not to repeat the violation, before the 
contractor may be found to be in compliance with the Executive Order or 
this part.
    (c) If a violation cannot be resolved through conciliation efforts, 
the Deputy Assistant Secretary for Labor-Management Programs may proceed 
in accordance with Section 470.13.
    (d) For reasonable cause shown, the Deputy Assistant Secretary for 
Labor-Management Programs may reconsider, or cause to be reconsidered, 
any matter on his or her own motion or pursuant to a request.



Sec. 470.13  Under what circumstances, and how, will enforcement 
proceedings under the Executive Order be conducted?

    (a) General. (1) Violations of the Executive Order may result in 
administrative proceedings to enforce the Order. The bases for a finding 
of a violation may include, but are not limited to:
    (i) The results of a compliance evaluation;
    (ii) The results of a complaint investigation;
    (iii) A contractor's refusal to allow a compliance evaluation or 
complaint investigation to be conducted; or
    (iv) A contractor's refusal to provide information as required by 
the Executive Order and the regulations in this part.
    (2) If a determination is made that the Executive Order or the 
regulations in this part have been violated, and the violation has not 
been corrected through conciliation, the Deputy Assistant Secretary for 
Labor-Management Programs may refer the matter to the Solicitor of Labor 
for institution of administrative enforcement proceedings.
    (b) Administrative enforcement proceedings. (1) Administrative 
enforcement proceedings will be conducted under the control and 
supervision of the Solicitor of Labor, under the hearing procedures set 
forth in 29 CFR part 18, Rules of Practice and Procedure for 
Administrative Hearings Before the Office of Administrative Law Judges.
    (2) The administrative law judge will certify his or her recommended 
decision issued pursuant to 29 CFR 18.57 to the Assistant Secretary. The 
decision will be served on all parties and amici.
    (3) Within 25 days (10 days in the event that the proceeding is 
expedited) after receipt of the administrative law judge's recommended 
decision, either party may file exceptions to the decision. Exceptions 
may be responded to by the other parties within 25 days (7 days if the 
proceeding is expedited) after receipt. All exceptions and responses 
must be filed with the Assistant Secretary.
    (4) After the expiration of time for filing exceptions, the 
Assistant Secretary may issue a final administrative order, or may make 
such other disposition of the matter as he or she finds appropriate. In 
an expedited proceeding, unless the Assistant Secretary issues a final 
administrative order within 30 days after the expiration of time for 
filing exceptions, the administrative law judge's recommended decision 
will become the final administrative order. If the Assistant Secretary 
determines that the contractor has violated the Executive Order or the 
regulations in this part, the final administrative order will order the 
contractor to cease and desist from the violations, require the 
contractor to provide appropriate remedies, or, subject to the 
procedures in Section 470.14, impose appropriate sanctions and 
penalties, or any combination thereof.

[[Page 235]]



Sec. 470.14  What sanctions and penalties may be imposed for noncompliance, 

and what procedures will the Department follow in imposing such sanctions 
and penalties?

    (a) After a final decision on the merits has issued and before 
imposing the sanctions and penalties described in paragraph (d) of this 
section, the Assistant Secretary will consult with the affected 
contracting agencies, and provide the heads of those agencies the 
opportunity to respond and provide written objections.
    (b) If the contracting agency provides written objections, those 
objections must include a complete statement of reasons for the 
objections, among which reasons must be a finding that, as applicable, 
the completion of the contract, or further contracts or extensions or 
modifications of existing contracts, is essential to the agency's 
mission.
    (c) The sanctions and penalties described in this section, however, 
will not be imposed if:
    (1) The head of the contracting agency continues personally to 
object to the imposition of such sanctions and penalties, or
    (2) The contractor has not been afforded an opportunity for a 
hearing.
    (d) In enforcing the Order and this part, the Assistant Secretary 
may:
    (1) Direct a contracting agency to cancel, terminate, suspend, or 
cause to be canceled, terminated or suspended, any contract or any 
portions thereof, for failure of the contractor to comply with its 
contractual provisions as required by section 2 of the Executive Order 
and the regulations in this part. Contracts may be canceled, terminated, 
or suspended absolutely, or continuance of contracts may be conditioned 
upon compliance.
    (2) Issue an order of debarment under section 6(b) of the Order 
providing that one or more contracting agencies must refrain from 
entering into further contracts, or extensions or other modification of 
existing contracts, with any noncomplying contractor.
    (e) Whenever the Assistant Secretary has exercised his or her 
authority pursuant to paragraph (d) of this section, the contracting 
agency must report the actions it has taken to the Assistant Secretary 
within such time as the Assistant Secretary will specify.
    (f) Periodically, the Assistant Secretary will publish and 
distribute, or cause to be published and distributed, to all executive 
agencies a list of the names of contractors that have, in the judgment 
of the Assistant Secretary under section 470.13(b)(4) of this part, 
failed to comply with the provisions of the Executive Order and this 
part, or of related rules, regulations, and orders of the Secretary of 
Labor, and as a result have been declared ineligible for future 
contracts or subcontracts under the Executive Order and the regulations 
in this part.



Sec. 470.15  Under what circumstances must a contractor be provided 
the opportunity for a hearing?

    Before the Assistant Secretary takes the following action, a 
contractor must be given the opportunity for a hearing before the 
Assistant Secretary:
    (a) Issues an order debarring the contractor from further Government 
contracts under section 6(b) of the Executive Order and Sec. 
470.14(d)(2) of this part; or
    (b) Includes the contractor on a published list of noncomplying 
contractors under section 6(c) of the Executive Order and Sec. 
470.14(f) of this part.



Sec. 470.16  Under what circumstances may a contractor be reinstated?

    Any contractor or subcontractor debarred from or declared ineligible 
for further contracts or subcontracts under the Executive Order may 
request reinstatement in a letter to the Assistant Secretary. If the 
Assistant Secretary finds that the contractor or subcontractor has come 
into compliance with the Order and this part and has shown that it will 
carry out the Order and this part, the contractor or subcontractor may 
be reinstated.



                       Subpart C_Ancillary Matters



Sec. 470.20  What authority under this part or the Executive Order may 
the Secretary delegate, and under what circumstances?

    Section 9 of the Executive Order grants the Secretary the right to 
delegate any of his/her functions or duties

[[Page 236]]

under the Order to any officer in the Department of Labor or to any 
other officer in the executive branch of the Government, with the 
consent of the head of the department or agency in which that officer 
serves.



Sec. 470.21  Who will make rulings and interpretations under the Executive 
Order and this part?

    Rulings under or interpretations of the Executive Order or the 
regulations contained in this part will be made by the Assistant 
Secretary or his or her designee.



Sec. 470.22  What actions may the Assistant Secretary take in the case of 
intimidation and interference?

    The sanctions and penalties contained in Section 470.14 of this part 
may be exercised by the Assistant Secretary against any contractor or 
subcontractor who fails to take all necessary steps to ensure that no 
person intimidates, threatens, or coerces any individual for the purpose 
of interfering with the filing of a complaint, furnishing information, 
or assisting or participating in any manner in a compliance evaluation, 
complaint investigation, hearing, or any other activity related to the 
administration of the Executive Order or the regulations in this part.



Sec. 470.23  What other provisions apply to this part?

    (a) The regulations in this part implement Executive Order 13201 
only, and do not modify or affect the interpretation of any other 
Department of Labor regulations or policy.
    (b) Consistent with section 8 of the Executive Order, each 
contracting department and agency must cooperate with the Assistant 
Secretary, the Deputy Assistant Secretary for Labor-Management Programs, 
and/or the Deputy Assistant Secretary for Federal Contract Compliance, 
and must provide such information and assistance as the Assistant 
Secretary or Deputy Assistant Secretary may require, in the performance 
of his or her functions under the Executive Order and the regulations in 
this part.
    (c) Consistent with section 13 of the Executive Order, nothing 
contained in the Executive Order or this part, or promulgated pursuant 
to the Executive Order or this part, is intended to confer any 
substantive or procedural right, benefit, or privilege enforceable at 
law by any party against the United States, its agencies or 
instrumentalities, its officers or employees, or any other person.


[[Page 237]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 239]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2004)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  [Reserved]
        II  Office of Management and Budget Circulars and Guidance 
                [Reserved]
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 240]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)

[[Page 241]]

     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)

[[Page 242]]

      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)

[[Page 243]]

       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)

[[Page 244]]

       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

[[Page 245]]

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)

[[Page 246]]

        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]

[[Page 247]]

       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

[[Page 248]]

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)

[[Page 249]]

        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)

[[Page 250]]

        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

[[Page 251]]

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)

[[Page 252]]

       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 253]]

        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)

[[Page 254]]

       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)

[[Page 255]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1599)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)

[[Page 256]]

         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 257]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2004)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 258]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 259]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 260]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 261]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General

[[Page 262]]

  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A

[[Page 263]]

  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
   Commission
[[Page 264]]

Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV

[[Page 265]]

Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 267]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

29 CFR
                                                                   66 FR
                                                                    Page
Chapter I
102.117 (a) through (d) revised....................................50311

                                  2002

29 CFR
                                                                   67 FR
                                                                    Page
Chapter I
102.11 Revised.......................................................658
102.35 Heading and (a)(9) revised....................................656
102.60 (a) revised...................................................658
102.83 Revised.......................................................658
102.111 (c) revised................................................70696
102.114 Heading revised; (i) added.................................70695

                                  2003

29 CFR
                                                                   68 FR
                                                                    Page
Chapter I
102.19 (a) revised.................................................39837
Chapter IV
403 Authority citation revised.....................................58447
403.2 (a) amended; (d) added.......................................58447
403.5 (a) and (b) amended; (d) added...............................58447
403.8 Existing text designated as (a); (b) and (c) added...........58447
408 Authority citation revised.....................................58448
408.5 Amended......................................................58448

                                  2004

    (Regulations published from January 1, 2004 through July 1, 2004)

29 CFR
                                                                   69 FR
                                                                    Page
Title 29 Nomenclature change.......................................18803
Subtitle A
35 Added...........................................................17571
Chapter I
102.24 Revised......................................................1676
102.35 (a)(8) revised...............................................1677
102.114 (g) revised.................................................1677
Chapter IV
470 (Subchapter C) Added...........................................16386


                                  [all]