[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2023 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 29

Labor


________________________

Parts 100 to 499

                         Revised as of July 1, 2023

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2023
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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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                                      137
          Chapter III--National Railroad Adjustment Board          145
          Chapter IV--Office of Labor-Management Standards, 
          Department of Labor                                      149
  Finding Aids:
      Table of CFR Titles and Chapters........................     255
      Alphabetical List of Agencies Appearing in the CFR......     275
      List of CFR Sections Affected...........................     285

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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, 2023), 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 
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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.

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not dropped in error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
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CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, 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.

[[Page vii]]

    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

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in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
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    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 2023







[[Page ix]]



                               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-Sec.  1910.999, part 
1910.1000-end of part 1910, parts 1911-1925, parts 1926-1999, and part 
2000 to end. The contents of these volumes represent all current 
regulations codified under this title as of July 1, 2023.

    The OMB control numbers for title 29 CFR part 1910 appear in Sec.  
1910.8. For the convenience of the user, Sec.  1910.8 appears in the 
Finding Aids section of the volume containing Sec.  1910.1000 to the 
end.

    For this volume, [Insert Name] was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of John Hyrum 
Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                             TITLE 29--LABOR




                  (This book contains parts 100 to 499)

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

                SUBTITLE B--Regulations Relating to Labor

                                                                    Part

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

[[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....................          21
102             Rules and regulations, Series 8.............          34
103             Other rules.................................         131
104-199

[Reserved]

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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]

                  Subpart F_Debt Collection Procedures

100.601 Purpose and scope.
100.602 Definitions.
100.603 Debts that are covered.
100.604 Monetary limitations on NLRB's authority.
100.605 Information Collection Requirements: OMB Approval.
100.606 No private rights created.
100.607 Form of payment.
100.608 Subdivision of claims or debts.
100.609 Administrative collection of claims.
100.610 Written demand for payment.
100.611 Reporting claims or debts.
100.612 Disputed claims or debts.
100.613 Contracting for collection services.
100.614 Collection by administrative offset.
100.615 Authorities other than offset.
100.616 Payment collection.
100.617 Interest, penalties, and administrative costs.
100.618 Bankruptcy claims.
100.619 When a debt may be compromised.
100.620 Finality of a compromise.
100.621 When collection action may be terminated or suspended.
100.622 Termination of collection action.
100.623 Exception to termination.
100.624 Discharge of indebtedness; reporting requirements.
100.625 Referral of a claim to the Department of Justice.

    Authority: Section 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 1976, as 
amended by the Inspector General Act Amendments of 1988, 5 U.S.C. ap3; 
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 F is also issued under 31 U.S.C. 3711 and 3716-3719, as 
amended, 31 CFR part 285, 31 CFR chapter IX parts 900-904.



             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]

[[Page 8]]



           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 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) Scope of regulations. These regulations apply to administrative 
claims filed under the Federal Tort Claims Act (28 U.S.C. 2672), as 
amended, for money damages against the United States for damage to or 
loss of 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 acting within the scope of his or her office or 
employment, under circumstances where the United States, if a private 
person, would be liable to the claimant in accordance with the law of 
the place where the act or omission occurred. The regulations in this 
part supplement the Department of Justice's regulations in 28 CFR part 
14.
    (b) Filing a claim. Claims may be submitted to the Associate General 
Counsel, Division of Legal Counsel, Headquarters, National Labor 
Relations Board, Washington, DC 20570 at any time within 2 years after 
such claim has accrued. The current address for Headquarters can be 
found at www.nlrb.gov. Such claim may be presented by a person specified 
in 28 CFR 14.3. An executed Standard Form 95, Claim for Damage, Injury, 
or Death, or written notification must be submitted and accompanied by 
as much of the appropriate information specified in 28 CFR 14.4 as may 
reasonably be obtained.
    (c) Amendment of claim. A claim submitted in compliance with this 
subpart may be amended by the claimant at any time prior to final action 
by the National Labor Relations Board or prior to the exercise of the 
claimant's option under 28 U.S.C. 2675(a). Amendments shall be submitted 
in writing and signed by the claimant or his or her duly authorized 
agent or legal representative. Upon the timely filing of an amendment to 
a pending claim, the National Labor Relations Board shall have six 
months to make a final disposition of the claim as amended and the 
claimant's option under 28 U.S.C. 2675(a) shall not accrue until six 
months after filing of an amendment.
    (d) Action on claims. The Associate General Counsel, Division of 
Legal Counsel, shall have the power to consider, ascertain, adjust, 
determine, compromise, or settle any claim submitted in accordance with 
paragraph (a) of this section. Any exercise of such power shall be in 
accordance with 28 U.S.C. 2672 and 28 CFR part 1.

[[Page 9]]

    (e) Legal review of claims. In accordance with 28 CFR 14.5, legal 
review is required if the amount of a proposed settlement, compromise, 
or award exceeds $5,000. Any exercise of such power shall be in 
accordance with 28 U.S.C. 2672 and 28 CFR part 14.
    (f) 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 Chief Financial Officer out of appropriations available to the 
National Labor Relations Board. Payment of any award, compromise, or 
settlement in an amount greater than $2,500 will be paid in accordance 
with 28 CFR 14.10.
    (g) Acceptance of payment constitutes release. Acceptance by a 
claimant, his or her agent or legal representative of any award, 
compromise, or settlement made pursuant to this part shall be final and 
conclusive on the claimant, his or her agent or legal representative and 
any other person on whose behalf or for whose benefit the claim has been 
submitted, and shall constitute a complete release of any claims against 
the United States, the National Labor Relations Board, and any employee 
of the government whose act or omission gave rise to the claim.

[81 FR 19487, Apr. 5, 2016]



 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, 25885, July 8, 1988, unless otherwise noted. 
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, 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.
    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

[[Page 10]]

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 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

[[Page 11]]

materials, design quality, or special character resulting from a 
permanent alteration.

[53 FR 25884, 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, 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

[[Page 12]]

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

[53 FR 25884, 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

[[Page 13]]

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.
    (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, 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

[[Page 14]]

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 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, 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

[[Page 15]]

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



Sec. Sec.  100.571-100.599  [Reserved]



                  Subpart F_Debt Collection Procedures

    Source: 72 FR 40070, July 23, 2007, unless otherwise noted.



Sec.  100.601  Purpose and scope.

    This part prescribes standards and procedures for officers and 
employees of the National Labor Relations Board (NLRB) who are 
responsible for the collection and disposition of certain debts owed to 
the United States, as further defined below. The authority for this part 
is the Federal Claims Collection Act of 1966; the Debt Collection 
Improvement Act of 1996; 31 U.S.C. 3711 and 3716 through 3719, as 
amended; The Federal Claims Collection Standards, 31 CFR chapter IX 
parts 900-904; and Office of Management and Budget Circular A-129. The 
activities covered include: the collection of claims of any amount; 
compromising claims; suspending or terminating the collection of claims; 
referring debts that are more than 180 days delinquent to the Department 
of the Treasury for collection action; and the referral of debts of more 
than $100,000 (exclusive of any interest and charges) to the Department 
of Justice for litigation.



Sec.  100.602  Definitions.

    For the purpose of this subpart, the following definitions will 
apply:
    Administrative Offset means withholding money payable by the United 
States Government (including money payable by the United States 
Government on behalf of a State Government) to, or held by the 
Government for, a person to satisfy a debt the person owes the United 
States Government.
    Centralized offset means the offset of Federal payments through the 
Treasury Offset Program to collect debts which creditor agencies have 
certified pursuant to 31 U.S.C. 3716(c), 3720A(a) and applicable 
regulations. The term

[[Page 16]]

``centralized offset'' includes the Treasury Offset Program's processing 
of offsets of Federal payments disbursed by disbursing officials other 
than the Department of the Treasury.
    Claim or debt means an amount of money, funds, or property that has 
been determined by an agency official to be owed to the United States by 
a person, organization, or entity, except another Federal agency. For 
the purposes of administrative offset under 31 U.S.C. 3716, the terms 
claim and debt include an amount of money, funds, or property owed by a 
person to a State (including past-due support being enforced by a 
State), the District of Columbia, American Samoa, Guam, the United 
States Virgin Islands, the Commonwealth of the Northern Mariana Islands, 
or the Commonwealth of Puerto Rico.
    Cross-servicing means that the Department of the Treasury or another 
debt collection center is taking appropriate debt collection action on 
behalf of one or more Federal agencies or a unit or sub-agency thereof.
    Debtor means an individual, organization, group, association, 
partnership, or corporation indebted to the United States, or the person 
or entity with legal responsibility for assuming the debtor's 
obligation.
    Delinquent refers to the status of a debt and means a debt has not 
been paid by the date specified in the initial written demand for 
payment or applicable contractual agreement with the NLRB, unless other 
satisfactory payment arrangements have been made by that date. If the 
debtor fails to satisfy obligations under a payment agreement with the 
NLRB after other payment arrangements have been made, the debt becomes a 
delinquent debt.
    Payment in full means payment of the total debt due the United 
States, including any interest, penalty, and administrative costs of 
collection assessed against the debtor.
    Recoupment is a special method for adjusting debts arising under the 
same transaction or occurrence. For example, obligations arising under 
the same contract generally are subject to recoupment.



Sec.  100.603  Debts that are covered.

    (a) The procedures covered by this part generally apply to claims 
for payment or debts which
    (1) Result from certain internal management activities of the NLRB; 
or
    (2) Are referred to the NLRB for collection.
    (b) The procedures covered by this part do not apply to
    (1) A debt arising from, or ancillary to, any action undertaken by 
or on behalf of the NLRB or its General Counsel in furtherance of 
efforts to ensure compliance with the National Labor Relations Board 
Act, 29 U.S.C. 151, et seq., including but not limited to actions 
involving the collection of monies owed for back pay and/or other 
monetary remedies provided for in Board orders or ancillary court 
proceedings. (Regulations concerning the collection of these types of 
debts are found in 29 CFR part 102, subparts U and V.);
    (2) A debt involving criminal actions of fraud, the presentation of 
a false claim, or misrepresentation on the part of the debtor or any 
other person having an interest in the claim;
    (3) A debt based in whole or in part on conduct in violation of the 
antitrust laws;
    (4) A debt under the Internal Revenue Code of 1986;
    (5) A debt between Federal agencies. Federal agencies should attempt 
to resolve interagency claims by negotiation in accordance with 
Executive Order 12146 (3 CFR, 1980 Comp., pp. 409-412);
    (6) A debt once it becomes subject to salary offset under 5 U.S.C. 
5514; or
    (7) A debt involving bankruptcy which is covered by Title 11 of the 
United States Code.
    (c) Debts involving criminal actions of fraud, false claims, 
misrepresentation, or which violate antitrust laws will be promptly 
referred to the Department of Justice. Only the Department of Justice 
has the authority to compromise, suspend, or terminate collection 
activity on such debts. However, at its discretion, the Department of 
Justice may return a debt to the NLRB for further handling.

[[Page 17]]



Sec.  100.604  Monetary limitations on NLRB's authority.

    The NLRB's authority to compromise a debt or to suspend or terminate 
collection action on a debt covered by these procedures is limited by 31 
U.S.C. 3711(a) to claims that:
    (a) Have not been referred to another Federal Agency for further 
collection actions; and
    (b) Do not exceed $100,000 (exclusive of any interest) or such 
higher amount as the Attorney General shall from time to time prescribe 
for purposes of compromise or suspension or termination of collection 
activity.



Sec.  100.605  Information collection requirements: OMB approval.

    This part contains no information collection requirements, and, 
therefore, is not subject to the requirements of the Paperwork Reduction 
Act (44 U.S.C. 3501 et seq.)



Sec.  100.606  No private rights created.

    (a) The failure of the NLRB to include in this part any provision of 
the Federal Collections Claim Standards (FCCS), 31 CFR chapter IX parts 
900-904, does not prevent the NLRB from applying these provisions.
    (b) A debtor may not use the failure of the NLRB to comply with any 
provision of this part or of the FCCS as a defense.



Sec.  100.607  Form of payment.

    These procedures are directed primarily at the recovery of money or, 
when a contractual basis exists, the NLRB may demand the return of 
specific property or the performance of specific services.



Sec.  100.608  Subdivision of claims or debts.

    A debt may not be subdivided to avoid the monetary ceiling 
established by 31 U.S.C. 3711(a)(2) and 29 CFR 100.604.



Sec.  100.609  Administrative collection of claims.

    The NLRB shall aggressively collect all claims or debts. These 
collection activities will be undertaken promptly and follow up action 
will be taken as appropriate in accordance with 31 CFR chapter IX Sec.  
901.1.



Sec.  100.610  Written demand for payment.

    (a) The NLRB will promptly make written demand upon the debtor for 
payment of money or the return of specific property. The written demand 
for payment will be consistent with the requirements of 31 CFR chapter 
IX Sec.  901.2. The date by which payment is due to avoid any late 
charges will be 60 days from the date that the demand letter is mailed 
or hand-delivered.
    (b) The failure to state in a letter of demand a matter described in 
31 CFR chapter IX Sec.  901.2 is not a defense for a debtor and does not 
prevent the NLRB from proceeding with respect to that matter.
    (c) When necessary, to protect the Government's interest, written 
demand may be preceded by other appropriate action, including immediate 
referral for litigation. It may be appropriate to contact a debtor or 
his representative or guarantor by other means (telephone, in person, 
etc.) to discuss prompt payment, the debtor's ability to repay the debt, 
and to inform the debtor of his rights and the affect of nonpayment or 
delayed payment.
    (d) When the NLRB learns that a bankruptcy petition has been filed 
with respect to a debtor, the NLRB will cease collection action 
immediately unless it has been determined that the automatic stay 
imposed at the time of filing pursuant to 11 U.S.C. 362 has been lifted 
or is no longer in effect.



Sec.  100.611  Reporting claims or debts.

    (a) In addition to assessing interest, penalties, and administrative 
costs pursuant to 31 CFR chapter IX Sec.  901.9, the NLRB may report a 
debt that has been delinquent for 90 days to a consumer reporting agency 
in accordance with the requirements of 31 U.S.C. 3711(e).
    (b) The information the NLRB discloses to a consumer reporting 
agency is limited to--
    (1) Information necessary to establish the identity of the 
individual debtor, including name, address, and taxpayer identification 
number;
    (2) The amount, status, and history of the debt; and

[[Page 18]]

    (3) The NLRB activity under which the debt arose.



Sec.  100.612  Disputed claims or debts.

    (a) A debtor who disputes a debt should provide the NLRB with an 
explanation as to why the debt is incorrect within 60 days from the date 
the initial demand letter was mailed or hand-delivered. The debtor may 
support the explanation by affidavits, cancelled checks, or other 
relevant evidence.
    (b) If the debtor's arguments appear to have merit, the NLRB may 
waive the interest period pursuant to 29 CFR 100.617(c) pending a final 
determination of the existence or the amount of the debt.
    (c) The NLRB may investigate the facts concerning the dispute and, 
if it considers it necessary, arrange for a conference at which the 
debtor may present evidence and any arguments in support of the debtor's 
position.



Sec.  100.613  Contracting for collection services.

    The NLRB may contract for collection services in order to recover 
delinquent debts only if the debts are not subject to the DCIA 
requirement to transfer claims or debts to Treasury for debt collection 
services, e.g., claims or debts of less than 180 days delinquent. 
However, the NLRB retains the authority to resolve disputes, compromise 
claims, suspend or terminate collection action, and initiate enforced 
collection through litigation. When appropriate, the NLRB shall contract 
for collection services in accordance with guidance and standards 
contained in 31 CFR chapter IX parts 900-904.



Sec.  100.614  Collection by administrative offset.

    (a) Application. (1) The NLRB may administratively undertake 
collection by centralized offset on each claim which is liquidated or 
certain in amount in accordance with the guidance and standards in 31 
CFR parts 900-904 and 5 U.S.C. 5514.
    (2) This section does not apply to those debts described in 31 CFR 
901.3(a)(2).
    (3) Unless otherwise provided for by contract or law, debts or 
payments that are not subject to administrative offset under 31 U.S.C. 
3716 may be collected by administrative offset under the common law or 
other applicable statutory authority.
    (4) Generally, administrative offset of payments under the authority 
of 31 U.S.C. 3716 may not be conducted more than 10 years after the 
Government's right to collect the claim or debt first accrued.
    (b) Mandatory centralized offset. (1) The NLRB is required to refer 
past due legally enforceable, nontax debts that are over 180 days 
delinquent to the Department of the Treasury for collection by 
centralized administrative offset. A debt is legally enforceable if 
there has been a final determination by the NLRB that the debt, in the 
amount stated, is due and there are no legal bars to collection action. 
Debts under this section will be referred and collected pursuant to 
procedures in 31 CFR 901.3(b).
    (c) NLRB administrative offset. The NLRB, in order to refer a 
delinquent debt to the Department of the Treasury for administrative 
offset, adopts the administrative offset procedures as prescribed by 31 
CFR 901.3.
    (d) Non-centralized administrative offset. Generally, non-
centralized administrative offsets are ad hoc case-by-case offsets that 
the NLRB would conduct at its own discretion, internally or in 
cooperation with the agency certifying or authorizing payments to the 
debtor. Non-centralized administrative offset is used when centralized 
administrative offset is not available or appropriate to collect past 
due legally enforceable, nontax delinquent debts. In these cases, the 
NLRB may make a request directly to a payment-authorizing agency to 
offset a payment due a debtor to collect a delinquent debt. The NLRB 
adopts the procedures in 31 CFR 901.3(c) so that it may request that the 
Department of the Treasury or any other payment authorizing agency to 
conduct a non-centralized administrative offset.
    (e) Requests to OPM to offset a debtor's anticipated or future 
benefit payments under the Civil Service Retirement and Disability Fund 
and the Federal Employees Retirement System. Upon providing

[[Page 19]]

OPM written certification that a debtor has been afforded the procedures 
provided for in this section, the NLRB will request that OPM offset a 
debtor's anticipated or future benefit payments under the Civil Service 
Retirement and Disability Fund (Fund) in accordance with regulations 
codified at 5 CFR 831.1801-831.1808 and the Federal Employees Retirement 
System (System) in accordance with regulations codified at 5 CFR 
845.401-845.408. Upon receipt of a request, OPM will identify and 
``flag'' a debtor's account in anticipation of the time when the debtor 
requests or becomes eligible for payments from the Fund or System. This 
will satisfy any requirement that offset be initiated prior to the 
expiration of the time limitations referenced in 29 CFR 100.614(a)(4).
    (f) Review requirements. For purposes of this section, whenever the 
NLRB is required to afford a debtor a review within the Agency, the NLRB 
shall provide the debtor with a reasonable opportunity for a review of 
the record in accordance with 31 CFR 901.3(e). The NLRB will provide the 
debtor with the reasonable opportunity for an oral hearing in accordance 
with 31 CFR 285.11(f), when the debtor requests reconsideration of the 
debt, and the NLRB determines that the question of the indebtedness 
cannot be resolved by review of the written record, for example, when 
the validity of the debt turns on an issue of credibility or veracity.



Sec.  100.615  Authorities other than offset.

    (a) Administrative Wage Garnishment. The NLRB is authorized to 
collect debts from a debtor's wages by means of administrative wage 
garnishment in accordance with the requirements of 31 U.S.C. 3720D and 
31 CFR 285.11. This section adopts and incorporates all of the 
provisions of 31 CFR 285.11 concerning administrative wage garnishment, 
including the hearing procedures described in 31 CFR 285.11(f). The NLRB 
may use administrative wage garnishment to collect a delinquent debt 
unless the debtor is making timely payments under an agreement to pay 
the debt in installments.
    (b) This section does not apply to Federal salary offset, the 
process by which the NLRB collects debts from the salaries of Federal 
employees.



Sec.  100.616  Payment collection.

    (a) The NLRB shall make every effort to collect a claim in full 
before it becomes delinquent, but will consider arranging for payment in 
regular installments consistent with 31 CFR 901.8, if the debtor 
furnishes satisfactory evidence that he is unable to pay the debt in one 
lump sum. Except for a claim described in 5 U.S.C. 5514, all installment 
payment arrangements must be in writing and require the payment of 
interest, penalties, and other administrative costs. If possible, the 
installment payments should be sufficient in size and frequency to 
liquidate the debt in three years or less.
    (b) If a debt is paid in one lump sum after it becomes delinquent, 
the NLRB shall impose charges for interest, penalties, and 
administrative costs as specified in 31 CFR 901.9.
    (c) Payment of a debt is made by check, electronic funds transfer, 
draft, or money order payable to the National Labor Relations Board. 
Payment should be made to the National Labor Relations Board, Finance 
Branch, 1099 14th Street NW., Washington, DC 20570, unless payment is--
    (1) Made pursuant to arrangements with the Department of Justice;
    (2) Ordered by a Court of the United States; or
    (3) Otherwise directed in any other part of this chapter.



Sec.  100.617  Interest, penalties, and administrative costs.

    (a) Pursuant to 31 U.S.C. 3717, the NLRB shall assess interest, 
penalties, and administrative costs on debts owed to the United States 
Government. Interest, penalties, and administrative costs will be 
assessed in accordance with the provisions contained in 31 CFR 901.9.
    (b) The NLRB shall waive collection of interest on a debt or any 
portion of the debt which is paid in full within 30 days after the date 
on which the interest began to accrue.
    (c) The NLRB may waive interest during a period a disputed debt is 
under investigation or review by the NLRB. However, this additional 
waiver is not

[[Page 20]]

automatic and must be requested before the expiration of the initial 30-
day waiver period. The NLRB may grant the additional waiver only if it 
finds merit in the explanation the debtor has submitted.
    (d) The NLRB may waive collection of interest, penalties, and 
administrative costs if it finds that one or more of the following 
conditions exist:
    (1) The debtor is unable to pay any significant sum toward the debt 
within a reasonable period of time;
    (2) Collection of interest, penalties, and administrative costs will 
jeopardize collection of the principal of the debt;
    (3) The NLRB is unable to enforce collection in full within a 
reasonable period of time by enforced collection proceedings; or
    (4) Collection is not in the best interest of the United States, 
including when an administrative offset or installment agreement is in 
effect.
    (e) The NLRB is authorized to impose interest and related charges on 
debts not subject to 31 U.S.C. 3717, in accordance with common law.



Sec.  100.618  Bankruptcy claims.

    When the NLRB learns that a bankruptcy petition has been filed by a 
debtor, before proceeding with further collection action, the NLRB will 
immediately seek legal advice from the NLRB's Office of Special Counsel 
concerning the impact of the Bankruptcy Code on any pending or 
contemplated collection activities. After seeking legal advice from the 
NLRB's Office of Special Counsel, the NLRB will take any necessary 
action in accordance with the provisions of 31 CFR 901.2(h).



Sec.  100.619  When a debt may be compromised.

    The NLRB may compromise a debt not in excess of the monetary 
limitation in accordance with 31 CFR part 902 if it has not been 
referred to the Department of Justice for litigation.



Sec.  100.620  Finality of a compromise.

    An offer of compromise must be in writing and signed by the debtor. 
An offer of compromise which is accepted by the NLRB is final and 
conclusive on the debtor and on all officials, agencies, and courts of 
the United States, unless obtained by fraud, misrepresentation, the 
presentation of a false claim, or mutual mistake of fact.



Sec.  100.621  When collection action may be terminated or suspended.

    The NLRB may suspend or terminate collection action on a claim not 
in excess of the monetary limitation of $100,000 or such other amount as 
the Attorney General may direct, exclusive of interest, penalties, and 
administrative costs, after deducting the amount of partial payments or 
collections, if any, in accordance with the standards and reasons set 
forth in 31 CFR part 903.



Sec.  100.622  Termination of collection action.

    Before terminating collection activity, the NLRB will have pursued 
all appropriate means of collection and determined, based upon results 
of the collection activity, that the debt is uncollectible. Termination 
of collection activity ceases active collection of the debt. The 
termination of collection activity does not preclude the NLRB from 
retaining a record of the account for the purposes stated in 31 CFR 
903.3(b) and (c).



Sec.  100.623  Exception to termination.

    If a debt meets the exceptions described in 31 CFR 903.4, the NLRB 
may refer it for litigation even though termination of collection 
activity may otherwise be appropriate.



Sec.  100.624  Discharge of indebtedness; reporting requirements.

    (a) Before discharging a delinquent debt (also referred to as close-
out of a debt), the NLRB shall take all appropriate steps to collect the 
debt in accordance with 31 U.S.C. 3711(g), including, as applicable, 
administrative offset, tax refund offset, Federal salary offset, 
referral to Treasury or Treasury-designated collection centers or 
private collection contractors, credit bureau reporting, wage 
garnishment, litigation, and foreclosure. Discharge of indebtedness is 
distinct from termination or suspension of collection activity and is 
governed by the Internal

[[Page 21]]

Revenue Code. When the NLRB determines that it will discharge a debt, it 
will do so in accordance with the provisions of 31 CFR 903.5.
    (b) [Reserved]



Sec.  100.625  Referral of a claim to the Department of Justice.

    The NLRB shall promptly refer debts that are subject to aggressive 
collection activity and that cannot be compromised, or debts on which 
collection activity cannot be suspended or terminated, to the Department 
of Justice for litigation. Debts shall be referred as early as possible, 
consistent with the standards contained if 31 CFR parts 900-904 and, in 
any event, well within the period for initiating timely lawsuits against 
the debtors. The NLRB will make every effort to refer delinquent debts 
to the Department of Justice within one year of the date such debts 
became delinquent.



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 [Reserved]

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.

[[Page 22]]

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 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

[[Page 23]]

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 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

[[Page 24]]

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 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.  102.19 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

[[Page 25]]

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 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.

[[Page 26]]



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 
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

[[Page 27]]

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 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 [Reserved]



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 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 29 CFR 102.60 and 102.61 and the statement 
of the general course of proceedings under Section 9(c) of the Act 
published in the Federal Register, insofar as they are applicable, 
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

[[Page 28]]

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 29 CFR 102.69 and the statement of the general course of 
proceedings under Section 9(c) of the Act published in the Federal 
Register, 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 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 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 29 CFR 102.63, 102.64, 102.65, 102.66, 102.67, 102.68, and 
102.69, and the statement of the general course.
    (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 29 CFR 102.62(a) and the statement of the general 
course.
    (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 of 
29 CFR part 102 and the statement of the general course.

[79 FR 74476, Dec. 15, 2014]



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.

[[Page 29]]



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 of 29 
CFR part 102 and the statement of the general course. 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.

[79 FR 74476, Dec. 15, 2014]



  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 or is available online, provides, among 
other things, for a description of the bargaining unit covered by the 
agreement, the approximate number of employees involved, the names of 
any other labor organizations which claim to represent the employees, 
the petitioner's position on the type, date(s), time(s), and location(s) 
of the election sought, and the name of, and contact information for, 
the individual who will serve as the petitioner's representative. The 
petition may be filed by facsimile or electronically. The petitioner 
must supply with the petition evidence of authorization from the 
employees.

[79 FR 74476, Dec. 15, 2014]



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.

[[Page 30]]

    (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.

    (a) The Board makes available to the parties three types of informal 
consent procedures through which authorization issues can be resolved 
without resort to formal procedures. These informal agreements are the 
consent election agreement with final regional director determinations 
of post-election disputes, the stipulated election agreement with 
discretionary Board review, and the full consent election agreement with 
final regional director determinations of pre- and post-election 
disputes. Forms for use in these informal procedures are available in 
the Regional Offices.
    (b) The procedures to be used in connection with a consent-election 
agreement with final regional director determinations of post-election 
disputes, a stipulated election agreement with discretionary Board 
review, and a full consent-election agreement with final regional 
director determinations of pre- and post-election disputes are the same 
as those described in subpart C of 29 CFR part 102 and the statement of 
the general course in connection with similar agreements in 
representation cases under Section 9(c) of the Act, except that no 
provision is made for runoff elections.

[79 FR 74477, Dec. 15, 2014]



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 is 
described in subpart C of 29 CFR part 102 and the statement of the 
general course in connection with the postelection procedures 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.

[79 FR 74477, Dec. 15, 2014]



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 
29 CFR part 102 and the statement of the general course respecting 
representation cases arising under Section 9(c) of the Act insofar as 
applicable. 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

[[Page 31]]

hearing on the issues which, after hearing, is followed by regional 
director 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 that are 
relevant to the issue of whether the Board should conduct an election to 
determine whether the employees in a bargaining unit covered by an 
agreement between their employer and a labor organization made pursuant 
to section 8(a)(3) of the Act, desire that such authority be rescinded. 
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, together with an informal 
analysis by the hearing officer of the issues and the evidence but 
without recommendations. Post-hearing briefs are filed only upon special 
permission of the regional director and within the time and addressing 
the subjects permitted by the regional director.
    (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 is described in connection with the postelection 
procedures in representation cases under Section 9(c) of the Act.

[79 FR 74477, Dec. 15, 2014]



  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 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

[[Page 32]]

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 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

[[Page 33]]

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 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.

[[Page 34]]



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.

                      Subpart B_Service and Filings

102.2 Time requirements for filings with the Agency.
102.3 Date of service.
102.4 Methods of service of process and papers by the Agency; proof of 
          service.
102.5 Filing and service of papers by parties: Form of papers; manner 
          and proof of filing or service.
102.6 Notice to the Administrative Law Judge or Board of supplemental 
          authority.
102.7 Signature on documents E-Filed with the Agency.
102.8 [Reserved]

   Subpart C_Procedure Under Section 10(A) to (I) of the Act for the 
                  Prevention of Unfair Labor Practices

102.9 Who may file; withdrawal and dismissal.
102.10 Where to file.
102.11 Signature; sworn; declaration.
102.12 Contents.
102.13 [Reserved]
102.14 Service of charge.
102.15 When and by whom issued; contents; service.
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.
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.
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.

[[Page 35]]

102.29 Intervention; requisites; rulings on motions to intervene.
102.30 Depositions; examination of witnesses.
102.31 Issuance of subpoenas; petitions to revoke subpoenas; rulings on 
          claim of privilege against self-incrimination; subpoena 
          enforcement proceedings; right to inspect or copy data.
102.32 Payment of witness fees and mileage; fees of officer who 
          transcribes deposition or video testimony.
102.33 Transfer of charge and proceeding from Region to Region; 
          consolidation of proceedings in same Region; severance.
102.34 Who will conduct hearing; 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 Disqualification and unavailability of Administrative Law Judges.
102.37 [Reserved]
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.
102.44 [Reserved]
102.45 Administrative Law Judge's decision; contents of record; 
          alternative dispute resolution program.
102.46 Exceptions and brief in support; answering briefs to exceptions; 
          cross-exceptions and brief in support; answering briefs to 
          cross-exceptions; reply briefs; failure to except; oral 
          argument; filing requirements; amicus curiae briefs.
102.47 Filing of motion after transfer of case to Board.
102.48 No exceptions filed; exceptions filed; motions for 
          reconsideration, rehearing, or reopening the record.
102.49 Modification or setting aside of Board order before record filed 
          in court; action thereafter.
102.50 Hearings before the Board or a Board Member.
102.51 Settlement or adjustment of issues.
102.52 Compliance with Board order; notification of compliance 
          determination.
102.53 Appeal of compliance determination to the General Counsel; 
          General Counsel's action; request for review by the Board; 
          Board action; opposition to appeal or request for review.
102.54 Issuance of compliance specification; consolidation of complaint 
          and compliance specification.
102.55 Contents of compliance specification.
102.56 Answer to compliance specification.
102.57 Extension of date of hearing.
102.58 Withdrawal of compliance specification.
102.59 Hearing and posthearing procedures.

Subpart D_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.
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 Election agreements; voter list; Notice of Election.
102.63 Investigation of petition by regional director; notice of 
          hearing; service of notice; Notice of Petition for Election; 
          Statement of Position; withdrawal of notice of hearing.
102.64 Conduct of hearing.
102.65 Motions; intervention; appeals of hearing officer's rulings.
102.66 Introduction of evidence: rights of parties at hearing; 
          preclusion; subpoenas; oral argument and briefs.
102.67 Proceedings before the regional director; further hearing; action 
          by the regional director; appeals from actions of the regional 
          director; statement in opposition; requests for extraordinary 
          relief; Notice of Election; voter list.
102.68 Record in pre-election proceeding; what constitutes; transmission 
          to Board.
102.69 Election procedure; tally of ballots; objections; certification 
          by the regional director; hearings; hearing officer reports on 
          objections and challenges; exceptions to hearing officer 
          reports; regional director decisions on objections and 
          challenges.
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

[[Page 36]]

          to another region; consolidation of proceedings in same 
          region; severance; procedure before general counsel in cases 
          over which he has assumed jurisdiction.

 Subpart E_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 F_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 G_Procedure to Hear and Determine Disputes Under Section 10(k) 
                               of the Act

102.89 Initiation of proceedings.
102.90 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 H_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 I_Advisory Opinions and Declaratory Orders Regarding Board 
                              Jurisdiction

102.98 Petition for advisory opinion; who may file; where to file.
102.99 Contents of petition for advisory opinion.
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.
102.108 Response to petition; service of response.
102.109 Intervention.
102.110 Proceedings before the Board; briefs; declaratory orders.
102.111-102.114 [Reserved]

           Subpart J_Certification and Signature of Documents

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

                    Subpart K_Records and Information

102.117 Freedom of Information Act Regulations: Agency materials 
          including formal documents available pursuant to the Freedom 
          of Information Act; requests for described records; time limit 
          for response; appeal from denial of request; fees for document 
          search, duplication, and review; files and records not subject 
          to inspection.
102.118 Present and former Board employees prohibited from producing 
          documents and testifying; production of witnesses' statements 
          after direct testimony.
102.119 Privacy Act Regulations: Notification as to whether a system of 
          records contains records pertaining to requesting individuals; 
          requests for access to records, amendment of such records, or 
          accounting of disclosures; time limits for

[[Page 37]]

          response; appeal from denial of requests; fees for document 
          duplication; files and records exempted from certain Privacy 
          Act requirements.

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

102.120 Post-employment restrictions on activities by former officers 
          and employees.

                     Subpart M_Construction of Rules

102.121 Rules to be liberally construed.
102.122 and 102.123 [Reserved]

Subpart N [Reserved]

                          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; 
          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.
102.134 [Reserved]

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

102.135 Postal Reorganization Act.

                      Subpart R_Advisory Committees

102.136 Establishment and use 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.
102.140 Action necessary to close meeting; 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.
102.154 Exceptions to Administrative Law Judge's decision; briefs; 
          action of the 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.

[[Page 38]]

102.176 [Reserved]

       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.

       Subpart X_Special Procedures When the Board Lacks a Quorum

102.178 Normal operations should continue.
102.179 Motions for default judgment, summary judgment, or dismissal 
          referred to Chief Administrative Law Judge.
102.180 Requests for special permission to appeal referred to Chief 
          Administrative Law Judge.
102.181 Administrative and procedural requests referred to Executive 
          Secretary.
102.182 Representation cases should be processed to certification.

    Authority: 29 U.S.C. 151, 156. Section 102.117 also issued under 5 
U.S.C. 552(a)(4)(A), and Sec.  102.119 also issued under 5 U.S.C. 
552a(j) and (k). Sections 102.143 through 102.155 also issued under 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.

    (a) Definition of terms. The terms person, employer, employee, 
representative, labor organization, commerce, affecting commerce, and 
unfair labor practice as used herein 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.
    (b) Act, Board, and Board agent. The term Act means the National 
Labor Relations Act, as amended. The term Board means the National Labor 
Relations Board and must include any group of three or more Members 
designated pursuant to Section 3(b) of the Act. The term Board agent 
means any Member, agent, or agency of the Board, including its General 
Counsel.
    (c) General Counsel. The term General Counsel means the General 
Counsel under Section 3(d) of the Act.
    (d) Region and Subregion. The term Region means that part of the 
United States or any territory thereof fixed by the Board as a 
particular Region. The term Subregion means that area within a Region 
fixed by the Board as a particular Subregion.
    (e) Regional Director, Officer-in-Charge, and Regional Attorney. The 
term Regional Director means the agent designated by the Board as the 
Regional Director for a particular Region, and also includes any agent 
designated by the Board as Officer-in-Charge of a Subregional office, 
but the Officer-in-Charge must have only such powers, duties, and 
functions appertaining to Regional Directors as have been duly delegated 
to such Officer-in-Charge. The term Regional Attorney means the attorney 
designated as Regional Attorney for a particular Region.
    (f) Administrative Law Judge and Hearing Officer. The term 
Administrative Law Judge means the agent of the Board conducting the 
hearing in an unfair labor practice proceeding. The term Hearing Officer 
means 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.
    (g) State. The term State includes the District of Columbia and all 
States, territories, and possessions of the United States.
    (h) Party. The term party means 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 should be construed to prevent the Board or its 
designated agent from limiting any party to participate in the 
proceedings to the extent of the party's interest only.
    (i) Business day. The term business day means days that Agency 
offices are open normal business operating hours, which is Monday 
through Friday, excluding Federal holidays. A list of Federal holidays 
can be found at

[[Page 39]]

www.opm.gov/policy-data-oversight/snow-dismissal-procedures/federal-
holidays/.

[82 FR 11751, Feb. 24, 2017, as amended at 84 FR 69588, Dec. 18, 2019]



                      Subpart B_Service and Filings

    Source: 82 FR 11751, Feb. 24, 2017, unless otherwise noted.



Sec.  102.2  Time requirements for filings with the Agency.

    (a) Time computation. 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 does 
not fall on a business day, in which event the period runs until the 
next Agency business day. When the period of time prescribed or allowed 
is less than 7 days, only business days are included in the computation. 
Except as otherwise provided, in computing the period of time for filing 
a responsive document, the designated period begins to run on the date 
the preceding document was required to be received by the Agency, even 
if the preceding document was filed prior to that date.
    (b) Timeliness of filings. If there is a time limit for the filing 
of a motion, brief, exception, request for extension of time, or other 
paper in any proceeding, such document must be received by the Board or 
the officer or agent designated to receive such matter on or before the 
last day of the time limit for such filing or the last day of any 
extension of time that may have been granted. Non E-Filed documents must 
be received before the official closing time of the receiving office 
(see www.nlrb.gov setting forth the official business hours of the 
Agency's several offices). E-Filed documents must be received by 11:59 
p.m. of the time zone of the receiving office. In construing this 
section of the Rules, the Board will accept as timely filed any document 
which is postmarked on the day before (or earlier than) the due date; 
documents which are postmarked on or after the due date are untimely. 
``Postmarking'' must include timely depositing the document with a 
delivery service that will provide a record showing that the document 
was given 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. 
However, the following documents must be received on or before 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) Extension of time to file. Except as otherwise provided, a 
request for an extension of time to file a document must be filed no 
later than the date on which the document is due. Requests for 
extensions of time filed within 3 days of the due date must be grounded 
upon circumstances not reasonably foreseeable in advance. Requests for 
extension of time must be in writing and must be served simultaneously 
on the other parties. Parties are encouraged to seek agreement from the 
other parties for the extension, and to indicate the other parties' 
position in the extension of time request. An opposition to a request 
for an extension of time should be filed as soon as possible following 
receipt of the request.
    (d) Late-filed documents. (1) 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:
    (i) In unfair labor practice proceedings, motions, exceptions, 
answers to a complaint or a backpay specification, and briefs; and
    (ii) In representation proceedings, exceptions, requests for review, 
motions, briefs, and any responses to any of these documents.
    (2) A party seeking to file such documents beyond the time 
prescribed by these Rules must 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 must be set 
forth in affidavit form and

[[Page 40]]

sworn to by individuals with personal knowledge of the facts. The time 
for filing any document responding to the untimely document will not 
commence until the date a ruling issues accepting the untimely document. 
In addition, cross-exceptions are due within 14 days, or such further 
period as the Board may allow, from the date a ruling issues accepting 
the untimely filed documents.

[82 FR 11751, Feb. 24, 2017, as amended at 84 FR 69588, Dec. 18, 2019]



Sec.  102.3  Date of service.

    Where service is made by mail, private delivery service, or email, 
the date of service is the day when the document served is deposited in 
the United States mail, 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 sent by email, as the case may be. Where 
service is made by personal delivery or facsimile, the date of service 
will be the date on which the document is received.



Sec.  102.4  Methods of service of process and papers by the Agency;
proof of service.

    (a) Method of service for certain Agency-issued documents. 
Complaints and compliance specifications (including accompanying notices 
of hearing, and amendments to either complaints or to compliance 
specifications), final orders of the Board in unfair labor practice 
cases and Administrative Law Judges' decisions must be served upon all 
parties personally, by registered or certified mail, by leaving a copy 
at the principal office or place of business of the person required to 
be served, by email as appropriate, or by any other method of service 
authorized by law.
    (b) Service of subpoenas. Subpoenas must be served upon the 
recipient personally, by registered or certified mail, by leaving a copy 
at the principal office or place of business of the person required to 
be served, by private delivery service, or by any other method of 
service authorized by law.
    (c) Service of other Agency-issued documents. Other documents may be 
served by the Agency by any of the foregoing methods as well as by 
regular mail, private delivery service, facsimile, or email.
    (d) Proof of service. In the case of personal service, or delivery 
to a principal office or place of business, the verified return by the 
serving individual, setting forth the manner of such service, is proof 
of service. In the case of service by registered or certified mail, the 
return post office receipt is proof of service. However, these methods 
of proof of service are not exclusive; any sufficient proof may be 
relied upon to establish service.
    (e) Service upon representatives of parties. Whenever these Rules 
require or permit the service of pleadings or other papers upon a party, 
a copy must 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 satisfies 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.



Sec.  102.5  Filing and service of papers by parties: Form of papers;
manner and proof of filing or service.

    (a) Form of papers to be filed. All papers filed with the Board, 
General Counsel, Regional Director, Administrative Law Judge, or Hearing 
Officer must be typewritten or otherwise legibly duplicated on 8\1/2\ by 
11-inch plain white paper, and must have margins no less than one inch 
on all four sides. Page numbers may be placed in the margins, but no 
text may appear there. Typeface that is single-spaced must not contain 
more than 10.5 characters per inch, and proportionally-spaced typeface 
must be 12 point or larger, for both text and footnotes. Condensed text 
is not permitted. The text must be double-spaced, but headings and 
footnotes may be single-spaced, and quotations more than two lines long 
may be indented and single-spaced. Case names must be italicized or 
underlined. Where any brief filed with the Board exceeds 20 pages, it 
must contain

[[Page 41]]

a subject index with page references and an alphabetical table of cases 
and other authorities cited.
    (b) Requests to exceed the page limits. Requests for permission to 
exceed the page limits for documents filed with the Board must state the 
reasons for the requests. Unless otherwise specified, such requests must 
be filed not less than 10 days prior to the date the document is due.
    (c) E-Filing with the Agency. Unless otherwise permitted under this 
section, all documents filed in cases before the Agency must be filed 
electronically (``E-Filed'') on the Agency's Web site (www.nlrb.gov) by 
following the instructions on the Web site. The Agency's Web site also 
contains certain forms that parties or other persons may use to prepare 
their documents for E-Filing. If the document being E-Filed is required 
to be served on another party to a proceeding, the other party must be 
served by email, if possible, or in accordance with paragraph (g) of 
this section. Unfair labor practice charges, petitions in representation 
proceedings, and showings of interest may be filed in paper format or E-
Filed. A party who files other documents in paper format must accompany 
the filing with a statement explaining why the party does not have 
access to the means for filing electronically or why filing 
electronically would impose an undue burden. Notwithstanding any other 
provision in these Rules, if a document is filed electronically the 
filer need not also file a hard copy of the document, and only one copy 
of a document filed in hard copy should be filed. Documents may not be 
filed with the Agency via email without the prior approval of the 
receiving office.
    (d) Filing with the Agency by Mail or Delivery. Documents to be 
filed with the Board are to be filed with the Office of the Executive 
Secretary in Washington, DC. Documents to be filed with the Regional 
Offices are to be filed with the Regional Office handling the case. 
Documents to be filed with the Division of Judges are to be filed with 
the Division office handling the matter.
    (e) Filing by fax with the Agency. Only 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 faxed to the appropriate office. Other 
documents may not be faxed. At the discretion of the receiving office, 
the person submitting a document by fax may be required simultaneously 
to file the original with the office by overnight delivery service. When 
filing a charge, a petition in a representation proceeding, or election 
objections by fax pursuant to this section, receipt of the faxed 
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 facsimile transmission could not be accomplished because the 
receiving machine was off-line or busy or unavailable for any other 
reason.
    (f) Service. Unless otherwise specified, documents filed with the 
Agency must be simultaneously served on the other parties to the case 
including, as appropriate, the Regional Office in charge of the case. 
Service of documents by a party on other parties may be made personally, 
or by registered mail, certified mail, regular mail, email (unless 
otherwise provided for by these Rules), private delivery service, or by 
fax for documents of or under 25 pages in length. Service of documents 
by a party on other parties by any other means, including by fax for 
documents over 25 pages in length, is permitted only with the consent of 
the party being served. When a party does not have the ability to 
receive service by email or fax, or chooses not to accept service of a 
document longer than 25 pages by fax, the other party must be notified 
personally or by telephone of the substance of the filed document and a 
copy of the document must be served by personal service no later than 
the next day, by overnight delivery service, or by fax or email as 
appropriate. Unless otherwise specified elsewhere in these Rules, 
service on all parties must be made in the same manner as that used in 
filing the document with the Board, or in a more expeditious manner. 
When filing with the Board is done by hand, however, the

[[Page 42]]

other parties must be immediately notified of such action, 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.  102.4(a) 
provide otherwise.
    (g) Proof of service. When service is made by registered or 
certified mail, the return post office receipt will be proof of service. 
When service is made by a private delivery service, the receipt from 
that service showing delivery will be proof of service. However, these 
methods of proof of service are not exclusive; any sufficient proof may 
be relied upon to establish service.
    (h) Statement of service. The person or party filing a document with 
the Agency must simultaneously file a statement of service. Such 
statement must include the names of the parties served, the date and 
manner of service, and the location of service such as mailing address, 
fax number, or email address as appropriate. The Agency requires proof 
of service as defined in paragraph (g) of this section 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.
    (i) Failure to properly serve. Failure to comply with the 
requirements of this section relating to timeliness of service on other 
parties will be a basis for either:
    (1) Rejecting 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.



Sec.  102.6  Notice to the Administrative Law Judge or Board of
supplemental authority.

    Pertinent and significant authorities that come to a party's 
attention after the party's submission to the Administrative Law Judge 
or the Board has been filed may be brought to the Judge's or the Board's 
attention by the party promptly filing a letter with the judge or the 
Board and simultaneously serving all other parties. The body of the 
letter may not exceed 350 words. A party may file and serve on all other 
parties a response that is similarly limited. In unfair labor practice 
cases, the response must be filed no later than 14 days after service of 
the letter. In representation cases, the response must be filed no later 
than 7 days after service of the letter. No extension of time will be 
granted to file the response.



Sec.  102.7  Signature on documents E-Filed with the Agency.

    Documents filed with the Agency by E-Filing may contain an 
electronic signature of the filer which will have the same legal effect, 
validity, and enforceability as if signed manually. The term 
``electronic signature'' means an electronic sound, symbol, or process, 
attached to or logically associated with a contract or other record and 
executed or adopted by a person with the intent to sign the document.



Sec.  102.8  [Reserved]



   Subpart C_Procedure Under Section 10(A) to (I) of the Act for the 
                  Prevention of Unfair Labor Practices

    Source: 82 FR 11754, Feb. 24, 2017, unless otherwise noted.



Sec.  102.9  Who may file; withdrawal and dismissal.

    Any person may file a charge alleging that any person has engaged in 
or is engaging in any unfair labor practice affecting commerce. The 
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 will be dismissed by the Regional Director

[[Page 43]]

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, a charge must 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 those Regions.



Sec.  102.11  Signature; sworn; declaration.

    Charges must be in writing and signed, and either must be sworn to 
before a notary public, Board agent, or other person duly authorized by 
law to administer oaths and take acknowledgments or must 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. 1746).



Sec.  102.12  Contents.

    (a) A charge must contain the following:
    (1) The full name and address of the person making the charge.
    (2) If the charge is filed by a labor organization, the full name 
and address of any national or international labor organization of which 
it is an affiliate or constituent unit.
    (3) The full name and address of the person against whom the charge 
is made (referred to as the Charged Party).
    (4) A brief statement of the conduct constituting the alleged unfair 
labor practices affecting commerce.
    (b) Attachments to charges are not permitted.



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 is responsible for the timely 
and proper service of a copy upon the person against whom such charge is 
made. Service may be made personally, or by registered mail, certified 
mail, regular mail, private delivery service, or facsimile. With the 
permission of the person receiving the charge, service may be made by 
email or by any other agreed-upon method.
    (b) Service as courtesy by Regional Director. The Regional Director 
will, as a matter of courtesy, serve a copy of the charge on the charged 
party in person, or send it to the charged party by regular mail, 
private delivery service, email or facsimile transmission, in any manner 
provided for in Rules 4 or 5 of the Federal Rules of Civil Procedure, or 
in any other agreed-upon method. The Region will not be responsible 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 delivery 
by email, the date of service is the date the email is sent. In the case 
of service by other methods, including hand delivery or facsimile 
transmission, the date of service is the date of receipt.



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 may be instituted, the Director will 
issue and serve on all parties a formal complaint in the Board's name 
stating the alleged unfair labor practices and containing a Notice of 
Hearing before an Administrative Law Judge at a fixed place and at a 
time not less than 14 days after the service of the complaint. The 
complaint will contain:
    (a) A clear and concise statement of the facts upon which the Board 
asserts jurisdiction, and
    (b) A clear and concise description of the acts which are claimed to 
constitute unfair labor practices, including, where known, the 
approximate dates and places of such acts and the names of Respondent's 
agents or other representatives who committed the acts.



Sec.  102.16  Hearing; change of date or place.

    (a) Upon the Regional Director's own motion or upon proper cause 
shown by any other party, the Regional Director issuing the complaint 
may extend the

[[Page 44]]

hearing date or change the hearing place, except that the Regional 
Director's authority to extend the hearing date is limited to the 
following circumstances:
    (1) Where all parties agree or no party objects to extension of the 
hearing date;
    (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 hearing 
date.
    (b) In circumstances other than those set forth in paragraph (a) of 
this section, motions to reschedule the hearing may 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 
retains the authority to order a new hearing date and the responsibility 
to make the necessary arrangements for conducting the hearing, including 
its location and the transcription of the proceedings.



Sec.  102.17  Amendment.

    A 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.

    A complaint may be withdrawn before the hearing by the Regional 
Director on the Director's 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, the Director will so advise the 
parties in writing, accompanied by a simple statement of the procedural 
or other grounds for that action. The Charging Party 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 where a 
shorter period is provided by Sec.  102.81. The Charging Party 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 must be in writing and be received by the General 
Counsel, and a copy of such request filed with the Regional Director, 
prior to the expiration of the filing period. Copies of the 
acknowledgment of the filing of an appeal and of any ruling on a request 
for an extension of time for filing of the appeal must 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 by a party on written request made within 4 days after service 
of acknowledgement of the filing of an appeal. In the event such request 
is granted, the other parties must 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 the affirmance, 
or may direct the Regional Director to take further action; the General 
Counsel's decision must 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 must state with 
particularity the error requiring reconsideration. A motion for 
reconsideration based upon newly discovered evidence which has become 
available only

[[Page 45]]

since the decision on appeal must 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.



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

    The Respondent must, within 14 days from the service of the 
complaint, file an answer. The Respondent must specifically admit, deny, 
or explain each of the facts alleged in the complaint, unless the 
Respondent is without knowledge, in which case the Respondent must 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 states in the answer that the Respondent is without 
knowledge, will be deemed to be admitted to be true and will be so found 
by the Board, unless good cause to the contrary is shown.



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 
the 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.

[82 FR 11754, Feb. 24, 2017, as amended at 82 FR 43697, Sept. 19, 2017]



Sec.  102.22  Extension of time for filing.

    Upon the Regional Director's 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 must be filed.



Sec.  102.23  Amendment.

    The Respondent may amend its answer at any time prior to the 
hearing. During the hearing or subsequently, the Respondent may amend 
the 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.



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 must 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 must 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), must be 
filed in

[[Page 46]]

writing with the Chief Administrative Law Judge in Washington, DC, with 
the Associate Chief Judge in San Francisco, California, or with the 
Associate Chief Judge in New York, New York, as the case may be. All 
motions made at the hearing must 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, must be filed with the 
Administrative Law Judge, care of the Chief Administrative Law Judge in 
Washington, DC, the Associate Chief Judge in San Francisco, or the 
Associate Chief Judge in New York, as the case may be. Motions must 
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 (a) must be filed together with an 
affidavit of service on the parties. All motions filed with the Board, 
including motions for default judgment, summary judgment, or dismissal, 
must be filed with the Executive Secretary of the Board in Washington, 
DC, together with an affidavit of service on the parties. Unless 
otherwise provided in these Rules, motions, oppositions, and replies 
must be filed promptly and within such time as not to delay the 
proceeding.
    (b) All motions for summary judgment or dismissal must 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 must be filed 
promptly. Upon receipt of the motion, the Board may deny the motion or 
issue a Notice to Show Cause why the motion may 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 to prevent 
postponement of the hearing, it may do so. However, any such opposition 
must 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 
notwithstanding any opposition it may have filed prior to issuance of 
the notice. The time for filing the response must be fixed in the Notice 
to Show Cause. Neither the opposition nor the response must 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, will be entered.
    (c) A party that has filed a motion may file a reply to an 
opposition to its motion within 7 days of receipt of the opposition, but 
in the interest of administrative finality, further responses are not 
permitted except where there are special circumstances warranting leave 
to file such a response.



Sec.  102.25  Ruling on motions.

    An Administrative Law Judge designated by the Chief Administrative 
Law Judge, the Deputy Chief Administrative Law Judge, or an Associate 
Chief Administrative Law Judge as the case may be, will 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 will be issued in 
writing and a copy served on each of the parties. The Administrative Law 
Judge designated to conduct the hearing will rule on all motions after 
opening of the hearing (except as provided in Sec.  102.47), and any 
related orders, if announced at the hearing, will be stated orally on 
the record; in all other cases, the Administrative Law Judge will issue 
such rulings and orders in writing and must cause a copy to be served on 
each of the parties, or will make the ruling in the decision. Whenever 
the Administrative Law Judge has reserved ruling on any motion, and the 
proceeding is thereafter transferred to and continued before the Board 
pursuant to Sec.  102.50, the Board must rule on such motion.

[[Page 47]]



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 will become a part of the record, 
except that rulings on motions to revoke subpoenas will 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 related orders, may not be appealed directly to the 
Board except by special permission of the Board, but will 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, must be filed in 
writing promptly and within such time as not to delay the proceeding, 
and must briefly state the reasons special permission may be granted and 
the grounds relied on for the appeal. The moving party must 
simultaneously 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 must be filed within 7 days of receipt of the appeal, in writing, 
and must be served simultaneously 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 immediately to rule on the 
appeal.



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 the 
filing of the Judge's decision, any party may obtain a review of such 
action by filing a request with the Board in Washington, DC, stating the 
grounds for review, and, immediately on such filing must serve a copy 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 will be closed.



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 will 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.



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

    Any person desiring to intervene in any proceeding must 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 must be filed with the Regional 
Director issuing the complaint; during the hearing, such motion must be 
made to the Administrative Law Judge. Immediately upon filing a written 
motion, the moving party must serve a copy on the other parties. The 
Regional Director will rule upon all such motions filed prior to the 
hearing, and will serve a copy of the rulings on the other parties, or 
may refer the motion to the Administrative Law Judge for ruling. The 
Administrative Law Judge will rule upon all such motions made at the 
hearing or referred to the Judge 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 may be deemed proper.



Sec.  102.30  Depositions; examination of witnesses.

    Witnesses must be examined orally under oath at a hearing, except 
that for good cause shown after the issuance

[[Page 48]]

of a complaint, testimony may be taken by deposition.
    (a) Applications to take depositions, including deposition testimony 
contemporaneously transmitted by videoconference, must be in writing and 
set forth the reasons why the depositions may be taken, the name, 
mailing address and email address (if available) of the witness, the 
matters concerning which it is expected the witness will testify, and 
the time and place proposed for taking the deposition, together with the 
name and mailing and email addresses 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 must 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 must be served on the Regional Director or the 
Administrative Law Judge, as the case may be, and on 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 the Administrative Law Judge, as the 
case may be, will upon receipt of the application, if in the Regional 
Director's or Administrative Law Judge's discretion, good cause has been 
shown, make and serve on the parties an order specifying the name of the 
witness whose deposition is to be taken and the time, place, and 
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 will be served on all the other parties by the Regional 
Director or on all parties by the Administrative Law Judge.
    (b) The 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 Board agent 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 the order, the officer 
designated to take the deposition will permit the witness to be examined 
and cross-examined under oath by all the parties appearing in person or 
by contemporaneous transmission through videoconference, and testimony 
shall be transcribed by the officer or under the officer's direction. 
All objections to questions or evidence will be deemed waived unless 
made at the examination. The officer will not have power to rule upon 
any objections but the objections will be noted in the deposition. The 
testimony must be subscribed by the witness to the satisfaction of the 
officer who will attach a certificate stating that the witness was duly 
sworn by the officer, that the deposition is a true record of the 
testimony and exhibits given by the witness, and that the 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 the witness is ill, dead, cannot be found, or 
refuses to sign it, such fact will be included in the certificate of the 
officer and the deposition may then be used as fully as though signed. 
The officer will immediately deliver the transcript, together with the 
certificate, in person, by registered or certified mail, or by E-File to 
the Regional Director or Division of Judges' office handling the matter.
    (d) The Administrative Law Judge will rule upon the admissibility of 
the deposition or any part of the deposition. A party may object to the 
admissibility of deposition testimony by videoconference on grounds that 
the taking of the deposition did not comply with appropriate safeguards 
as set forth in Sec.  102.35(c), provided that the party opposing the 
admission of the deposition raised deficiencies in safeguards at the 
time of the deposition when corrections might have been made.
    (e) All errors or irregularities in compliance with the provisions 
of this section will be deemed waived unless a motion to suppress the 
deposition in whole or part is made with reasonable

[[Page 49]]

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.
    (g) The official record of the deposition testimony will be the 
official transcript prepared by the officer designated to transcribe the 
deposition testimony.

[82 FR 11754, Feb. 24, 2017, as amended at 82 FR 43696, 43967, Sept. 19, 
2017]



Sec.  102.31  Issuance of subpoenas; petitions to revoke subpoenas;
rulings on claim of privilege against self-incrimination; subpoena 
enforcement proceedings; right to inspect or copy data.

    (a) The Board or any Board Member will, on the written application 
of any party, issue subpoenas requiring the attendance and testimony of 
witnesses and the production of any evidence, including books, records, 
correspondence, electronic data, or documents, in their possession or 
under their control. The Executive Secretary has the authority to sign 
and issue any such subpoenas on behalf of the Board or any Board Member. 
Applications for subpoenas, if filed before the hearing opens, must be 
filed with the Regional Director. Applications for subpoenas filed 
during the hearing must be filed with the Administrative Law Judge. 
Either the Regional Director or the Administrative Law Judge, as the 
case may be, will grant the application on behalf of the Board or any 
Member. Applications for subpoenas may be made ex parte. The subpoena 
must 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 that person does not intend to comply with the subpoena, 
must, within 5 business 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 is the 
date the subpoena is received. All petitions to revoke subpoenas must be 
served on the party at whose request the subpoena was issued. A petition 
to revoke, if made prior to the hearing, must be filed with the Regional 
Director and the Regional Director will refer the petition to the 
Administrative Law Judge or the Board for ruling. Petitions to revoke 
subpoenas filed during the hearing must be filed with the Administrative 
Law Judge. Petitions to revoke subpoenas filed in response to a subpoena 
issued upon request of the Agency's Contempt, Compliance, and Special 
Litigation Branch must be filed with that Branch, which will refer the 
petition to the Board for ruling. Notice of the filing of petitions to 
revoke will be promptly given by the Regional Director, the 
Administrative Law Judge, or the Contempt, Compliance and Special 
Litigation Branch, 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, will revoke the subpoena if in their 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, will make a simple statement of procedural or other grounds 
for the ruling on the petition to revoke. The petition to revoke any 
opposition to the petition, response to the opposition, and ruling on 
the petition will not become part of the official record except upon the 
request of the party aggrieved by the ruling, at an appropriate time in 
a formal proceeding rather than at the investigative stage of the 
proceeding.
    (c) Upon refusal of a witness to testify, the Board may, with the 
approval of the Attorney General of the United States, 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 50]]

    (2) Such individual has refused or is likely to refuse to testify or 
provide other information on the basis of the privilege against self-
incrimination. 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 must be made to the Board in 
Washington, DC, and the Board will 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 must be made 
to the Administrative Law Judge. If the Administrative Law Judge denies 
the request, the ruling will 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 must be 
filed within 24 hours of the Administrative Law Judge's ruling. If no 
appeal is sought within such time, or if the appeal is denied, the 
ruling of the Administrative Law Judge becomes final and the denial 
becomes the ruling of the Board. If the Administrative Law Judge deems 
the request appropriate, the Judge will recommend that the Board seek 
the approval of the Attorney General for the issuance of the order, and 
the Board will 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 will 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 will, in the 
name of the Board but on relation of such private party, institute 
enforcement proceedings in the appropriate district court, unless in the 
judgment of the Board the enforcement of the subpoena would be 
inconsistent with law and with the policies of the Act. Neither the 
General Counsel nor the Board will 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 must be entitled to make copies of 
documentary evidence or exhibits which they have produced.



Sec.  102.32  Payment of witness fees and mileage; fees of officer who
transcribes deposition or video testimony.

    Witnesses summoned before the Administrative Law Judge must be paid 
the same fees and mileage that are paid witnesses in the courts of the 
United States, and witnesses whose depositions are taken or who testify 
by videoconference and the officer who transcribes the testimony shall 
severally be entitled to the same fees as are paid for like services in 
the courts of the United States, and those fees shall be paid by the 
party at whose instance the deposition is taken.

[82 FR 43696, Sept. 19, 2017]



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 to effectuate 
the purposes of the Act or to avoid unnecessary costs or delay, a charge 
may be filed with the General Counsel in Washington, DC, or, at any time 
after a charge has been filed with a Regional Director, the General 
Counsel may order that such charge and any proceeding regarding the 
charge be:
    (1) Transferred to and continued before the General Counsel for 
investigation or consolidation with any other proceeding which may have 
been instituted in a Regional Office or with the General Counsel; or

[[Page 51]]

    (2) Consolidated with any other proceeding which may have been 
instituted in the same region; or
    (3) 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) Severed from any other proceeding with which it may have been 
consolidated pursuant to this section.
    (b) The provisions of Sec. Sec.  102.9 through 102.32 will, insofar 
as applicable, govern proceedings before the General Counsel, pursuant 
to this section, and the powers granted to Regional Directors in such 
provisions will, 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 will, insofar as possible, 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 paragraphs (a)(2) and (4) of this section with respect to proceedings 
pending in the Director's Region.
    (d) Motions to consolidate or sever proceedings after issuance of 
complaint must 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 the Director's 
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.



Sec.  102.34  Who will conduct hearing; public unless otherwise ordered.

    The hearing for the purpose of taking evidence upon a complaint will 
be conducted by an Administrative Law Judge designated by the Chief 
Administrative Law Judge, Deputy Chief Administrative Law Judge, or any 
Associate Chief Judge, as the case may be, unless the Board or any Board 
Member 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. Hearings will be public unless 
otherwise ordered by the Board or the Administrative Law Judge.



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) The Administrative Law Judge will 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 has authority, with 
respect to cases assigned to the Judge, between the time the Judge is 
designated and transfer of the case to the Board, subject to the Rules 
and Regulations of the Board and within its powers, to:
    (1) Administer oaths and affirmations.
    (2) Grant applications for subpoenas.
    (3) Rule upon petitions to revoke subpoenas.
    (4) Rule upon offers of proof and receive relevant evidence.
    (5) Take or cause depositions to be taken whenever the ends of 
justice would be served.
    (6) 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.
    (7) Hold conferences for the settlement or simplification of the 
issues by consent of the parties, but not to adjust cases.
    (8) 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, to order proceedings 
consolidated or severed prior to issuance of Administrative Law Judge 
decisions.
    (9) Approve stipulations, including stipulations of facts that waive 
a hearing and provide for a decision by the

[[Page 52]]

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 may be set forth in the stipulation of facts, and each 
party may 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 Judge (or the Board) will set a 
time for the filing of briefs. In proceedings before an Administrative 
Law Judge, no further briefs may be filed except by special leave of the 
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 may 
be filed except by special leave of the Board. At the conclusion of the 
briefing schedule, the Administrative Law Judge (or the Board) will 
decide the case or otherwise dispose of it.
    (10) 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) Call, examine, and cross-examine witnesses and to introduce 
into the record documentary or other evidence.
    (12) Request the parties at any time during the hearing to state 
their respective positions concerning any issue in the case and/or 
supporting theory(ies).
    (13) Take any other necessary action authorized by the Board's 
published Rules and Regulations.
    (b) Upon the request of any party or of the Administrative Law Judge 
assigned to hear a case, or upon the Chief Judge, Deputy Chief Judge, or 
Associate Chief Judge's own motion, the Chief Judge, Deputy Chief Judge 
or an Associate Chief Judge may assign a Judge other than the trial 
judge to conduct settlement negotiations. In exercising this discretion, 
the Chief Judge, Deputy Chief Judge, 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. However, no such assignment will be 
made absent the agreement of all parties to the use of this procedure.
    (1) The settlement judge will convene and preside over conferences 
and settlement negotiations between the parties, assess the 
practicalities of a potential settlement, and report to the Chief Judge, 
Deputy Chief Judge, or Associate Chief Judge the status of settlement 
negotiations, recommending continuation or termination of the settlement 
negotiations. Where feasible, settlement conferences will 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 will terminate upon the 
order of the Chief Judge, Deputy Chief Judge, or Associate Chief Judges 
issued after consultation with the settlement judge. The conduct of 
settlement negotiations must not unduly delay the hearing.
    (4) All discussions between the parties and the settlement judge 
will be confidential. The settlement judge must 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 will 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 Judge, Deputy Chief Judge, or Associate 
Chief Judge concerning the assignment of a settlement judge or the 
termination of a settlement judge's assignment is appealable to the 
Board.
    (6) Any settlement reached under the auspices of a settlement judge 
is subject to approval in accordance with the

[[Page 53]]

provisions of Sec.  101.9 of the Board's Statements of Procedure.
    (c) Upon a showing of good cause based on compelling circumstances, 
and under appropriate safeguards, the taking of video testimony by 
contemporaneous transmission from a different location may be permitted.
    (1) Applications to obtain testimony by videoconference must be 
presented to the Administrative Law Judge in writing, and the requesting 
party must simultaneously serve notice of the application upon all 
parties to the hearing. The application must set forth the compelling 
circumstances for such testimony, the witness's name and address, the 
location where the video testimony will be held, the matter concerning 
which the witness is expected to testify, the conditions in place to 
protect the integrity of the testimony, the transmission safeguards, and 
the electronic address from which the video testimony will be 
transmitted. Such application and any opposition must be made promptly 
and within such time as not to delay the proceeding.
    (2) Appropriate safeguards must ensure that the Administrative Law 
Judge has the ability to assess the witness's credibility and that the 
parties have a meaningful opportunity to examine and cross-examine the 
witness, and must include at a minimum measures that ensure that 
representatives of the parties have the opportunity to be present at the 
remote location, the judge, participants, and the reporter are able to 
hear the testimony and observe the witness, the camera view is 
adjustable to provide a close-up view of counsel and the witness and a 
panoramic view of the room, exhibits used in the witness's examination 
are exchanged in advance of the examination, and video technology 
assistance is available to assist with technical difficulties that arise 
during the examination. The Administrative Law Judge may also impose 
additional safeguards.
    (3) The official record of the videoconference testimony will be the 
official transcript prepared by the officer designated to transcribe the 
testimony.

[82 FR 11754, Feb. 24, 2017, as amended at 82 FR 43696, Sept. 19, 2017]



Sec.  102.36  Disqualification and unavailability of Administrative
Law Judges.

    (a) An Administrative Law Judge may withdraw from a proceeding 
because of a personal bias or for other disqualifying reasons. Any party 
may request the Administrative Law Judge, at any time following the 
Judge's designation and before filing of the Judge's decision, to 
withdraw on grounds of personal bias or disqualification, by filing with 
the Judge promptly upon the discovery of the alleged facts a timely 
affidavit setting forth in detail the matters alleged to constitute 
grounds for disqualification. If, in the Administrative Law Judge's 
opinion, the affidavit is filed with due diligence and is sufficient on 
its face, the Judge will promptly disqualify himself/herself and 
withdraw from the proceeding. If the Administrative Law Judge does not 
disqualify himself/herself and withdraw from the proceeding, the Judge 
must rule upon the record, stating the grounds for that ruling, and 
proceed with the hearing, or, if the hearing has closed, the Judge will 
proceed with issuance of the decision, and the provisions of Sec.  
102.26, with respect to review of rulings of Administrative Law Judges, 
will apply.
    (b) If 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, Deputy Chief Administrative 
Law Judge, or an Associate Chief Administrative Law Judge, as the case 
may be, may designate another Administrative Law Judge for the purpose 
of further hearing or other appropriate action.



Sec.  102.37  [Reserved]



Sec.  102.38  Rights of parties.

    Any party has the right to appear at the 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 Administrative Law Judge may limit the 
participation of any party as appropriate. Documentary evidence must be 
submitted in duplicate for the record with a copy to each party.

[[Page 54]]



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

    The hearing will, 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 (U.S.C., title 28, Sections 723-B, 
723-C).



Sec.  102.40  Stipulations of fact admissible.

    Stipulations of fact may be introduced in evidence with respect to 
any issue.



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 will 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 is entitled, upon request, to oral argument, for a 
reasonable period at the close of the hearing. Oral argument and any 
presentation of proposed findings and conclusions will be included in 
the transcript 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 must be made to the Chief 
Administrative Law Judge, Deputy Chief Administrative Law Judge, or an 
Associate Chief Administrative Law Judge, as the case may be. Notice of 
the request for any extension must be immediately served on all other 
parties, and proof of service must be furnished. The brief or proposed 
findings and conclusions must be served on the other parties, and a 
statement of such service must 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, the Judge must 
notify the parties at the opening of the hearing or as soon thereafter 
as practicable that the Judge may wish to hear oral argument in lieu of 
briefs.



Sec.  102.43  Continuance and adjournment.

    In the Administrative Law Judge's discretion, the hearing may be 
continued from day to day, or adjourned to a later date or to a 
different place, by announcement at the hearing by the Administrative 
Law Judge, or by other appropriate notice.



Sec.  102.44  [Reserved]



Sec.  102.45  Administrative Law Judge's decision; contents of record;
alternative dispute resolution program.

    (a) Administrative Law Judge's decision. After a hearing for the 
purpose of taking evidence upon a complaint, the Administrative Law 
Judge will prepare a decision. The decision will contain findings of 
fact, conclusions of law, and the reasons or grounds for the findings 
and conclusions, and recommendations for the proper disposition of the 
case. If the Respondent is found to have engaged in the alleged unfair 
labor practices, the decision will also contain a recommendation for 
such affirmative action by the Respondent as will effectuate the 
policies of the Act. The Administrative Law Judge will file the decision 
with the Board. If the Judge delivers a bench decision, promptly upon 
receiving the transcript the Judge will 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 serve a copy 
on each of the parties. Upon the filing of the decision, the Board will 
enter an order transferring the case to the Board, setting forth the 
date of the transfer and will serve on all the parties copies of the 
decision and the order. Service of the

[[Page 55]]

Administrative Law Judge's decision and of the order transferring the 
case to the Board is complete upon mailing.
    (b) Contents of record. The charge upon which the complaint was 
issued and any amendments, the complaint and any amendments, notice of 
hearing, answer and any amendments, motions, rulings, orders, the 
transcript 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, constitutes the record in the case.
    (c) Alternative dispute resolution program. The Alternative Dispute 
Resolution (ADR) Program is available to parties with unfair labor 
practice or compliance cases pending before the Board at any stage 
subsequent to the initial issuance of an Administrative Law Judge's 
decision or any other process involving the transfer to the Board of 
such cases. Participation in the ADR Program is voluntary, and a party 
that enters the ADR Program may withdraw any time after the first 
meeting with the neutral. No party will be charged fees or expenses for 
using the ADR Program.
    (1) The parties may request participation in the ADR Program by 
contacting the program director. Deadlines for filing pleadings with the 
Board will be stayed effective the date that the case enters the ADR 
Program. If the case is removed from the ADR Program, the time period 
for filing will begin to run and will consist of the time period that 
remained when the case entered the ADR Program. Notice will be provided 
to the parties of the date the case enters the ADR Program and the date 
it is removed from the ADR Program.
    (2) A case may remain in the ADR Program for 28 days from the first 
settlement meeting or until the parties reach a settlement, whichever 
occurs first. A request for extension of the stay beyond the 28 days 
will be granted only with the approval and in the discretion of both the 
neutral and the program director upon a showing that such an extension 
is supported by good cause.
    (3) Once the case enters the ADR Program, the program director will 
arrange for the appointment of a neutral to assist the parties in 
settling the case.
    (4) The preferred method of conducting settlement conferences is to 
have the parties or their representatives attend in person, and 
therefore the neutral will make every reasonable effort to meet with the 
participants face-to-face at the parties' location. Settlement 
conferences by telephone or through videoconference may be held if the 
parties so desire.
    (5) Parties may be represented by counsel at the conferences, but 
representation by counsel is not required. However, each party must have 
in attendance a representative who has the authority to bind the party 
to the terms of a settlement agreement.
    (6) The neutral may ask the parties to submit pre-conference memos 
setting forth the issues in dispute, prior settlement efforts, and 
anything else that the parties would like to bring to the neutral's 
attention. A party's memo will be treated as a confidential submission 
unless the party that prepared the memo authorizes its release to the 
other parties.
    (7) Settlement discussions held under the ADR Program will be 
confidential. All documents submitted to the neutral and statements made 
during the ADR proceedings, including proposed settlement terms, are for 
settlement purposes only and are confidential. However, evidence 
otherwise admissible or discoverable will not be rendered inadmissible 
or undiscoverable because of its use in the ADR proceedings. No evidence 
as to what transpired during the ADR proceedings will be admissible in 
any administrative or court proceeding except to the extent it is 
relevant to determining the existence or meaning of a settlement 
agreement. The parties and their representatives will not discuss with 
the press any matters concerning settlement positions communicated 
during the ADR proceedings except by express written permission of the 
other parties. There will be no communication between the

[[Page 56]]

ADR Program and the Board on specific cases submitted to the ADR 
Program, except for procedural information such as case name, number, 
timing of the process, and status.
    (8) The neutral has no authority to impose a settlement. Settlement 
agreements are subject to approval by the Board in accordance with its 
existing procedures for approving settlements.
    (9) No party will at any time or in any proceeding take the position 
that participation in the ADR Program resulted in the waiver of any 
legal rights related to the underlying claims in the case, except as set 
forth in any settlement agreement.
    (10) Nothing in the ADR Program is intended to discourage or 
interfere with settlement negotiations that the parties wish to conduct 
outside the ADR Program.



Sec.  102.46  Exceptions and brief in support; answering briefs to exceptions;
cross-exceptions and brief in support; answering briefs to cross-exceptions; 
reply briefs; failure to except; oral argument; filing requirements; 
amicus curiae briefs.

    (a) Exceptions and brief in support. 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.  102.2 through 102.5 and 102.7) 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 the 
exceptions. The filing of exceptions and briefs is subject to the filing 
requirements of paragraph (h) of this section
    (1) Exceptions. (i) Each exception must:
    (A) Specify the questions of procedure, fact, law, or policy to 
which exception is taken;
    (B) Identify that part of the Administrative Law Judge's decision to 
which exception is taken;
    (C) Provide precise citations of the portions of the record relied 
on; and
    (D) Concisely state the grounds for the exception. If a supporting 
brief is filed, the exceptions document must not contain any argument or 
citation of authorities in support of the exceptions; any argument and 
citation of authorities must be set forth only in the brief. If no 
supporting brief is filed, the exceptions document must also include the 
citation of authorities and argument in support of the exceptions, in 
which event the exceptions document is subject to the 50-page limit for 
briefs set forth in paragraph (h) of this section.
    (ii) Any exception to a ruling, finding, conclusion, or 
recommendation which is not specifically urged will be deemed to have 
been waived. Any exception which fails to comply with the foregoing 
requirements may be disregarded.
    (2) Brief in support of exceptions. Any brief in support of 
exceptions must contain only matter that is included within the scope of 
the exceptions and must contain, in the order indicated, the following:
    (i) A clear and concise statement of the case containing all that is 
material to the consideration of the questions presented.
    (ii) A specification of the questions involved and to be argued, 
together with a reference to the specific exceptions to which they 
relate.
    (iii) The argument, presenting clearly the points of fact and law 
relied on in support of the position taken on each question, with 
specific page citations to the record and the legal or other material 
relied on.
    (b) Answering briefs to exceptions. (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 filing requirements of paragraph (h) of this section.
    (2) The answering brief to the exceptions must be limited to the 
questions raised in the exceptions and in the brief in support. It must 
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 the party filing the 
answering brief proposes to support the Judge's finding,

[[Page 57]]

the answering brief must specify those pages of the record which the 
party contends support the Judge's finding.
    (c) Cross-exceptions and brief in support. 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 (a) and (h) of 
this section.
    (d) Answering briefs to cross-exceptions. 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 (b) and (h) of this section. Such answering 
brief must be limited to the questions raised in the cross-exceptions.
    (e) Reply briefs. Within 14 days from the last date on which an 
answering brief may be filed pursuant to paragraphs (b) or (d) of this 
section, any party may file a reply brief to any such answering brief. 
Any reply brief filed pursuant to this paragraph (e) must be limited to 
matters raised in the brief to which it is replying, and must not exceed 
10 pages. No extensions of time will be granted for the filing of reply 
briefs, nor will permission be granted to exceed the 10-page limit. The 
reply brief must be filed with the Board and served on the other 
parties. No further briefs may be filed except by special leave of the 
Board. Requests for such leave must be in writing and copies must be 
served simultaneously on the other parties.
    (f) Failure to except. Matters not included in exceptions or cross-
exceptions may not thereafter be urged before the Board, or in any 
further proceeding.
    (g) Oral argument. A party desiring oral argument before the Board 
must request permission from the Board in writing simultaneously with 
the filing of exceptions or cross-exceptions. The Board will 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.
    (h) Filing requirements. Documents filed pursuant to this section 
must be filed with the Board in Washington, DC, and copies must also be 
served simultaneously on the other parties. Any brief filed pursuant to 
this section must not be combined with any other brief, and except for 
reply briefs whose length is governed by paragraph (e) of this section, 
must not exceed 50 pages in length, exclusive of subject index and table 
of cases and other authorities cited.
    (i) Amicus curiae briefs. Amicus curiae briefs will be accepted only 
by permission of the Board. Motions for permission to file an amicus 
brief must state the bases of the movant's interest in the case and why 
the brief will be of benefit to the Board in deciding the matters at 
issue. Unless the Board directs otherwise, the following procedures will 
apply.
    (1) The Board will consider motions to file an amicus brief only 
when: (a) A party files exceptions to an Administrative Law Judge's 
decision; or (b) a case is remanded by the court of appeals and the 
Board requests briefing from the parties.
    (2) In circumstances where a party files exceptions to an 
Administrative Law Judge's decision, the motion must be filed with the 
Office of the Executive Secretary of the Board no later than 42 days 
after the filing of exceptions, or in the event cross-exceptions are 
filed, no later than 42 days after the filing of cross-exceptions. Where 
a case has been remanded by the court of appeals, the motion must be 
filed no later than 21 days after the parties file statements of 
position on remand. A motion filed outside these time periods must be 
supported by a showing of good cause. The motion will not operate to 
stay the issuance of a Board decision upon completion of the briefing 
schedule for the parties.
    (3) The motion must be accompanied by the proposed amicus brief and 
must comply with the service and form prescribed by Sec.  102.5. The 
brief may be no more than 25 pages in length.

[[Page 58]]

    (4) A party may file a reply to the motion within 7 days of service 
of the motion. A party may file an answering brief to the amicus brief 
within 14 days of issuance of the Board's order granting permission to 
file the amicus brief. Replies to an answering brief will not be 
permitted.
    (5) The Board may direct the Executive Secretary to solicit amicus 
briefs. In such cases, the Executive Secretary will specify in the 
invitation the due date and page length for solicited amicus briefs, and 
the deadline for the parties to file answering briefs. Absent compelling 
reasons, no extensions of time will be granted for filing solicited 
amicus briefs or answering briefs.

[82 FR 11754, Feb. 24, 2017, as amended at 82 FR 43696, Sept. 19, 2017]



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 must be filed with the Board in Washington, DC, 
and served upon the other parties. Such motions must be printed or 
otherwise legibly duplicated.



Sec.  102.48  No exceptions filed; exceptions filed; motions for 
reconsideration, rehearing, or reopening the record.

    (a) No exceptions filed. If no timely or proper exceptions are 
filed, the findings, conclusions, and recommendations contained in the 
Administrative Law Judge's decision will, 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 must be deemed waived for all purposes.
    (b) Exceptions filed. (1) 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 upon the record, or after 
oral argument, or may reopen the record and receive further evidence 
before a Board Member or other Board agent or agency, or otherwise 
dispose of the case.
    (2) 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.
    (c) Motions for reconsideration, rehearing, or reopening the record. 
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.
    (1) A motion for reconsideration must state with particularity the 
material error claimed and with respect to any finding of material fact, 
must specify the page of the record relied on. A motion for rehearing 
must specify the error alleged to require a hearing de novo and the 
prejudice to the movant from the error. A motion to reopen the record 
must 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 may have been taken at the hearing 
will be taken at any further hearing.
    (2) Any motion pursuant to this section must 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 to reopen the 
record must be filed promptly on discovery of the evidence to be 
adduced.
    (3) The filing and pendency of a motion under this provision will 
not stay the effectiveness of the action of the Board unless so ordered. 
A motion for reconsideration or rehearing need not be filed to exhaust 
administrative remedies.



Sec.  102.49  Modification or setting aside of Board order 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 is 
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

[[Page 59]]

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 the Board or a Board Member.

    Whenever the Board deems it necessary to effectuate the purposes of 
the Act or to avoid unnecessary 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 Board Member. The provisions of this subpart, insofar as 
applicable, govern proceedings before the Board or any Board Member 
pursuant to this section, and the powers granted to Administrative Law 
Judges in such provisions will, for the purpose of this section, be 
reserved to and exercised by the Board or the Board Member who will 
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 have an opportunity to submit to the Regional Director, with 
whom the charge was filed, for consideration, facts, arguments, offers 
of settlement, or proposals of adjustment.



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 will 
seek compliance from all persons having obligations under the order. As 
appropriate, the Regional Director will make a compliance determination 
and notify the parties of that 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.



Sec.  102.53  Appeal of compliance determination to the General Counsel; 
General Counsel's action; request for review by the Board; Board action;
opposition to appeal or request for review.

    (a) Appeal of compliance determination to the General Counsel. The 
Charging Party may appeal a compliance determination to the General 
Counsel in Washington, DC, within 14 days of the written statement of 
compliance determination as set forth in Sec.  102.52. The appeal must 
contain a complete statement setting forth the facts and reasons upon 
which it is based and must identify with particularity the error claimed 
in the Regional Director's determination. The General Counsel may for 
good cause shown extend the time for filing an appeal.
    (b) General Counsel's action. The General Counsel may affirm or 
modify the Regional Director's determination or take such other action 
deemed appropriate, and must state the grounds for that decision.
    (c) Request for review by Board. 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 must contain a complete statement of the facts and reasons 
upon which it is based and must identify with particularity the error 
claimed in the General Counsel's decision. A copy of the request for 
review must be served simultaneously on all other parties and on the 
General Counsel and the Regional Director.
    (d) Board action. The Board may affirm or modify the General 
Counsel's decision, or otherwise dispose of the matter as it deems 
appropriate. The denial of the request for review will constitute an 
affirmance of the General Counsel's decision.
    (e) Opposition to appeal or request for review. Within 7 days of 
receipt of a compliance appeal or request for review, a party may file 
an opposition to the compliance appeal or request for review.

[[Page 60]]



Sec.  102.54  Issuance of compliance specification; consolidation of
complaint and compliance specification.

    (a) If it appears that controversy exists with respect to compliance 
with a Board order 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 will contain 
or be accompanied by a Notice of Hearing before an Administrative Law 
Judge at a specific place and at a time not less than 21 days after the 
service of the specification.
    (b) Whenever the Regional Director deems it necessary 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 to effectuate 
the purposes and policies of the Act or to avoid unnecessary costs or 
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, the Board or the 
Administrative Law Judge, as appropriate, must approve consolidation. 
Issuance of a compliance specification is not 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.



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 will 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 will 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 before the hearing opens, the Regional Director 
may amend the specification. After the hearing opens, the specification 
may be amended upon leave of the Administrative Law Judge or the Board, 
upon good cause shown.



Sec.  102.56  Answer to compliance specification.

    (a) Filing and service of answer to compliance specification. Each 
Respondent alleged in the specification to have compliance obligations 
must, within 21 days from the service of the specification, file an 
answer with the Regional Director issuing the specification, and must 
immediately serve a copy on the other parties.
    (b) Form and contents of answer. The answer to the specification 
must be in writing, signed and sworn to by the Respondent or by a duly 
authorized agent with appropriate power of attorney affixed, and contain 
the address of the Respondent. The answer must specifically admit, deny, 
or explain each allegation of the specification, unless the Respondent 
is without knowledge, in which case the Respondent must so state, such 
statement operating as a denial. Denials must 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 must 
specify so much of it as is true and 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

[[Page 61]]

denial will 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 must specifically state the basis 
for such disagreement, setting forth in detail the Respondent's position 
and furnishing the appropriate supporting figures.
    (c) 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 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 
to deny is not adequately explained, such allegation will be deemed 
admitted as true, and may be so found by the Board without the taking of 
evidence supporting such allegation, and the Respondent will 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 
may, by written order, extend the time within which the answer to the 
specification must 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.



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 hearing date.



Sec.  102.58  Withdrawal of compliance specification.

    Any compliance specification and Notice of Hearing may be withdrawn 
before the hearing by the Regional Director upon the Director's own 
motion.



Sec.  102.59  Hearing and posthearing procedures.

    After the issuance of a compliance specification and Notice of 
Hearing, the procedures provided in Sec. Sec.  102.24 through 102.51 
will be followed insofar as applicable.



Subpart D_Procedure Under Section 9(c) of the Act for the Determination 
    of Questions Concerning Representation of Employees \2\ and for 
 Clarification of Bargaining Units and for Amendment of Certifications 
                      Under Section 9(b) of the Act
---------------------------------------------------------------------------

    \2\ Procedure under the first proviso to sec. 8(b)(7)(C) of the Act 
is governed by subpart D of this part.

    Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted. 
Redesignated at 82 FR 11754, Feb. 24, 2017.



Sec.  102.60  Petitions.

    (a) Petition for certification or decertification. 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

[[Page 62]]

perjury, that its contents are true and correct (see 28 U.S.C. 1746). 
One original of the petition shall be filed, and a copy served on all 
parties named in the petition. A person filing a petition by facsimile 
pursuant to Sec.  102.5(e) 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. A person filing a petition 
electronically pursuant to Sec.  102.5(c) need not file an original. 
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 two or more Regions, with the 
Regional Director for any of such Regions. A certificate of service on 
all parties named in the petition shall also be filed with the Regional 
Director when the petition is filed. Along with the petition, the 
petitioner shall serve the Agency's description of the procedures in 
representation cases and the Agency's Statement of Position form on all 
parties named in the petition. Prior to the transfer of the record to 
the Board, the petition may be withdrawn only with the consent of the 
Regional Director with whom such petition was filed. After the transfer 
of the record 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. A petition for clarification of an existing 
bargaining unit or a petition for amendment of certification, in the 
absence of a question of 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.

[84 FR 69588, Dec. 18, 2019]



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) RC petitions. 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 a substantial number of employees in the 
described unit wish to be represented by the petitioner. Evidence 
supporting the statement shall be filed with the petition in accordance 
with paragraph (f) of this section, but shall not be served on any 
party.
    (8) 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.
    (9) The name, affiliation, if any, and address of the petitioner, 
and the name, title, address, telephone number, facsimile number, and 
email address of the individual who will serve as the representative of 
the petitioner and accept service of all papers for purposes of the 
representation proceeding.
    (10) 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.
    (11) Any other relevant facts.

[[Page 63]]

    (12) The type, date(s), time(s) and location(s) of the election 
sought.
    (b) RM petitions. A petition for certification, when filed by an 
employer, shall contain the following:
    (1) The name and address of the petitioner, and the name, title, 
address, telephone number, facsimile number, and email address of the 
individual who will serve as the representative of the petitioner and 
accept service of all papers for purposes of the representation 
proceeding.
    (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(s).
    (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.
    (8) Evidence supporting the statement that a labor organization has 
made a demand for recognition on the employer or that the employer has 
good faith uncertainty about majority support for an existing 
representative. Such evidence shall be filed together with the petition, 
but if the evidence reveals the names and/or number of employees who no 
longer wish to be represented, the evidence shall not be served on any 
party. However, no proof of representation on the part of the labor 
organization claiming a majority is required and the Regional Director 
shall proceed with the case if other factors require it unless the labor 
organization withdraws its claim to majority representation.
    (9) The type, date(s), time(s) and location(s) of the election 
sought.
    (c) RD petitions. 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) The name and address of the petitioner and affiliation, if any, 
and the name, title, address, telephone number, facsimile number, and 
email address of the individual who will serve as the representative of 
the petitioner and accept service of all papers for purposes of the 
representation proceeding.
    (5) The name or names and addresses of the individuals or labor 
organizations who have been certified or are being currently recognized 
by the employer and who claim 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) A statement that a substantial number of employees in the 
described unit no longer wish to be represented by the incumbent 
representative. Evidence supporting the statement shall be filed with 
the petition in accordance with paragraph (f) of this section, but shall 
not be served on any party.
    (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.
    (11) The type, date(s), time(s) and location(s) of the election 
sought.
    (d) UC petitions. 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

[[Page 64]]

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, and the name, title, address, telephone number, facsimile 
number, and email address of the individual who will serve as the 
representative of the petitioner and accept service of all papers for 
purposes of the representation proceeding.
    (11) Any other relevant facts.
    (e) AC petitions. 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, and the name, title, address, telephone number, facsimile 
number, and email address of the individual who will serve as the 
representative of the petitioner and accept service of all papers for 
purposes of the representation proceeding.
    (8) Any other relevant facts.
    (f) Provision of original signatures. Evidence filed pursuant to 
paragraph (a)(7), (b)(8), or (c)(8) of this section together with a 
petition that is filed by facsimile or electronically, which includes 
original signatures that cannot be transmitted in their original form by 
the method of filing of the petition, may be filed by facsimile or in 
electronic form provided that the original documents are received by the 
Regional Director no later than 2 business days after the facsimile or 
electronic filing.

[84 FR 69588, Dec. 18, 2019]



Sec.  102.62  Election agreements; voter list; Notice of Election.

    (a) Consent-election agreements with final Regional Director 
determinations of post-election disputes. Where a petition has been duly 
filed, the employer and any individual or labor organizations 
representing a substantial number of employees involved may, with the 
approval of the Regional Director, enter into an agreement providing for 
the waiver of a hearing and for an election and further providing that 
post-election disputes will be resolved by the Regional Director. Such 
agreement, referred to as a consent election 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 
election shall be conducted under the direction and supervision of the 
Regional Director. The method of conducting such 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 
certifications of representative where appropriate, with the same force 
and effect, in that case, as if issued by the Board, and except that 
rulings or determinations by the Regional Director in respect to any 
amendment of such certification shall also be final.

[[Page 65]]

    (b) Stipulated election agreements with discretionary Board review. 
Where a petition has been duly filed, the employer and any individuals 
or labor organizations representing a substantial number of the 
employees involved may, with the approval of the Regional Director, 
enter into an agreement providing for the waiver of a hearing and for an 
election as described in paragraph (a) of this section and further 
providing that the parties may request Board review of the Regional 
Director's resolution of post-election disputes. Such agreement, 
referred to as a stipulated election 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 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.
    (c) Full consent election agreements with final Regional Director 
determinations of pre- and post-election disputes. Where a petition has 
been duly filed, the employer and any individual or labor organizations 
representing a substantial number of the employees involved may, with 
the approval of the Regional Director, enter into an agreement, referred 
to as a full consent election agreement, providing that pre- and post-
election disputes will be resolved by the Regional Director. Such 
agreement provides for a hearing pursuant to Sec. Sec.  102.63, 102.64, 
102.65, 102.66, and 102.67 to determine if a question of representation 
exists. Upon the conclusion of such a hearing, the Regional Director 
shall issue a decision. The rulings and determinations by the Regional 
Director thereunder shall be final, with the same force and effect, in 
that case, as if issued by the Board. Any election ordered by the 
Regional Director shall be conducted under the direction and supervision 
of the Regional Director. The method of conducting such 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 
certifications of representative where appropriate, with the same force 
and effect, in that case, as if issued by the Board, and except that 
rulings or determinations by the Regional Director in respect to any 
amendment of such certification shall also be final.
    (d) Voter list. Absent agreement of the parties to the contrary 
specified in the election agreement or extraordinary circumstances 
specified in the direction of election, within 2 business days after the 
approval of an election agreement pursuant to paragraph (a) or (b) of 
this section, or issuance of a direction of election pursuant to 
paragraph (c) of this section, the employer shall provide to the 
Regional Director and the parties named in the agreement or direction a 
list of the full names, work locations, shifts, job classifications, and 
contact information (including home addresses, available personal email 
addresses, and available home and personal cellular ``cell'' telephone 
numbers) of all eligible voters. The employer shall also include in 
separate sections of that list the same information for those 
individuals who will be permitted to vote subject to challenge. In order 
to be timely filed and served, the list must be received by the Regional 
Director and the parties named in the agreement or direction 
respectively within 2 business days after the approval of the agreement 
or issuance of the direction unless a longer time is specified in the 
agreement or direction. The list of names shall be alphabetized (overall 
or by department) and be in an electronic format approved by the General 
Counsel unless the employer certifies that it does not possess the 
capacity to produce the list in the required form. When feasible, the 
list shall be filed electronically with the Regional Director and served 
electronically on the other parties named in the agreement or direction. 
A certificate of service on all parties shall be filed with the Regional 
Director when the voter

[[Page 66]]

list is filed. The employer's failure to file or serve the list within 
the specified time or in proper format shall be grounds for setting 
aside the election whenever proper and timely objections are filed under 
the provisions of Sec.  102.69(a)(8). The employer shall be estopped 
from objecting to the failure to file or serve the list within the 
specified time or in the proper format if it is responsible for the 
failure. The parties shall not use the list for purposes other than the 
representation proceeding, Board proceedings arising from it, and 
related matters.
    (e) Notice of Election. Upon approval of the election agreement 
pursuant to paragraph (a) or (b) of this section or with the direction 
of election pursuant to paragraph (c) of this section, the Regional 
Director shall promptly transmit the Board's Notice of Election to the 
parties and their designated representatives by email, facsimile, or by 
overnight mail (if neither an email address nor facsimile number was 
provided). The employer shall post and distribute the Notice of Election 
in accordance with Sec.  102.67(k). The employer's failure properly to 
post or distribute 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)(8). A party 
shall be estopped from objecting to the nonposting of notices if it is 
responsible for the nonposting, and likewise shall be estopped from 
objecting to the nondistribution of notices if it is responsible for the 
nondistribution.

[84 FR 69588, Dec. 18, 2019, as amended at 88 FR 14911, Mar. 10, 2023]



Sec.  102.63  Investigation of petition by Regional Director;
Notice of Hearing; service of notice; Notice of Petition for Election;
Statement of Position; withdrawal of Notice of Hearing.

    (a) Investigation; Notice of Hearing; notice of petition for 
election. (1) 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 an 
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. Except in cases 
presenting unusually complex issues, the Regional Director shall set the 
hearing for a date 14 business days from the date of service of the 
notice. The Regional Director may postpone the hearing upon request of a 
party showing good cause. A copy of the petition, a description of 
procedures in representation cases, a ``Notice of Petition for 
Election,'' and a Statement of Position form as described in paragraphs 
(b)(1) through (3) of this section, 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 the director's own 
motion.
    (2) Within 5 business days after service of the Notice of Hearing, 
the employer shall post the Notice of Petition for Election in 
conspicuous places, including all places where notices to employees are 
customarily posted, and shall also distribute it electronically to 
employees in the petitioned-for unit if the employer customarily 
communicates with its employees electronically. The Notice of Petition 
for Election shall indicate that no final decisions have been made yet 
regarding the appropriateness of the petitioned-for bargaining unit and 
whether an election shall be conducted. The employer shall maintain the 
posting until the petition is dismissed or withdrawn or the Notice of 
Petition for Election is replaced by the Notice of Election. The 
employer's failure properly to post or distribute the Notice of Petition 
for Election may be grounds for setting aside the election whenever 
proper and timely objections are filed under the provisions of Sec.  
102.69(a)(8). A party shall be estopped from objecting to the nonposting 
of notices if it is responsible for the nonposting, and likewise shall

[[Page 67]]

be estopped from objecting to the nondistribution of notices if it is 
responsible for the nondistribution.
    (b) Statements of Position--(1) Statement of Position in RC cases. 
If a petition has been filed under Sec.  102.61(a) and the Regional 
Director has issued a Notice of Hearing, the employer shall file with 
the Regional Director and serve on the parties named in the petition its 
Statement of Position such that it is received by the Regional Director 
and the parties named in the petition by the date and time specified in 
the Notice of Hearing, which shall be at noon 8 business days following 
the issuance and service of the Notice of Hearing. The Regional Director 
may postpone the time for filing and serving the Statement of Position 
upon request of a party showing good cause. The Regional Director may 
permit the employer to amend its Statement of Position in a timely 
manner for good cause.
    (i) Employer's Statement of Position. (A) The employer's Statement 
of Position shall state whether the employer agrees that the Board has 
jurisdiction over it and provide the requested information concerning 
the employer's relation to interstate commerce; state whether the 
employer agrees that the proposed unit is appropriate, and, if the 
employer does not so agree, state the basis for its contention that the 
proposed unit is inappropriate, and state the classifications, 
locations, or other employee groupings that must be added to or excluded 
from the proposed unit to make it an appropriate unit; identify any 
individuals whose eligibility to vote the employer intends to contest at 
the pre-election hearing and the basis of each such contention; raise 
any election bar; state the length of the payroll period for employees 
in the proposed unit and the most recent payroll period ending date; 
state the employer's position concerning the type, date(s), time(s), and 
location(s) of the election and the eligibility period; and describe all 
other issues the employer intends to raise at the hearing.
    (B) The Statement of Position shall also state the name, title, 
address, telephone number, facsimile number, and email address of the 
individual who will serve as the representative of the employer and 
accept service of all papers for purposes of the representation 
proceeding and be signed by a representative of the employer.
    (C) The Statement of Position shall include a list of the full 
names, work locations, shifts, and job classifications of all 
individuals in the proposed unit as of the payroll period preceding the 
filing of the petition who remain employed at the time of filing, and if 
the employer contends that the proposed unit is inappropriate, the 
employer shall separately list the full names, work locations, shifts, 
and job classifications of all individuals that the employer contends 
must be added to the proposed unit to make it an appropriate unit. The 
employer shall also indicate those individuals, if any, whom it believes 
must be excluded from the proposed unit to make it an appropriate unit. 
The list(s) of names shall be alphabetized (overall or by department) 
and be in an electronic format approved by the General Counsel unless 
the employer certifies that it does not possess the capacity to produce 
the list in the required form.
    (ii) Petitioner's Statement of Position. Following timely filing and 
service of an employer's Statement of Position, the petitioner shall 
file with the Regional Director and serve on the parties named in the 
petition its Statement of Position responding to the issues raised in 
the employer's Statement of Position, such that it is received no later 
than noon 3 business days before the hearing. The Regional Director may 
permit the petitioner to amend its Statement of Position in a timely 
manner for good cause.
    (2) Statement of Position in RM cases. If a petition has been filed 
under Sec.  102.61(b) and the Regional Director has issued a Notice of 
Hearing, each individual or labor organization named in the petition 
shall file with the Regional Director and serve on the other parties 
named in the petition its Statement of Position such that it is received 
by the Regional Director and the parties named in the petition by the 
date and time specified in the Notice of Hearing, which shall be at noon 
8 business days following the issuance and service of the Notice of 
Hearing. The Regional Director may postpone the time for filing and 
serving the

[[Page 68]]

Statement of Position upon request of a party showing good cause. The 
Regional Director may permit each individual or labor organization named 
in the petition to amend its Statement of Position in a timely manner 
for good cause.
    (i) Individual or labor organization's Statement of Position. Each 
individual or labor organization's Statement of Position shall state 
whether it agrees that the Board has jurisdiction over the employer; 
state whether it agrees that the proposed unit is appropriate, and, if 
it does not so agree, state the basis for its contention that the 
proposed unit is inappropriate, and state the classifications, 
locations, or other employee groupings that must be added to or excluded 
from the proposed unit to make it an appropriate unit; identify any 
individuals whose eligibility to vote the individual or labor 
organization intends to contest at the pre-election hearing and the 
basis of each such contention; raise any election bar; state its 
position concerning the type, date(s), time(s), and location(s) of the 
election and the eligibility period; and describe all other issues it 
intends to raise at the hearing.
    (ii) Identification of representative for service of papers. Each 
individual or labor organization's Statement of Position shall also 
state the name, title, address, telephone number, facsimile number, and 
email address of the individual who will serve as its representative and 
accept service of all papers for purposes of the representation 
proceeding and be signed by the individual or a representative of the 
individual or labor organization.
    (iii) Employer's Statement of Position. The employer shall file with 
the Regional Director and serve on the parties named in the petition its 
Statement of Position such that it is received no later than noon 3 
business days before the hearing. The Employer's Statement of Position 
shall include a list of the full names, work locations, shifts, and job 
classifications of all individuals in the proposed unit as of the 
payroll period preceding the filing of the petition who remain employed 
at the time of filing. The list(s) of names shall be alphabetized 
(overall or by department) and be in an electronic format approved by 
the General Counsel unless the employer certifies that it does not 
possess the capacity to produce the list in the required form. The 
employer's Statement of Position shall also state whether the employer 
agrees that the Board has jurisdiction over it and provide the requested 
information concerning the employer's relation to interstate commerce; 
identify any individuals whose eligibility to vote the employer intends 
to contest at the pre-election hearing and the basis of each such 
contention; state the length of the payroll period for employees in the 
proposed unit and the most recent payroll period ending date; and 
respond to the issues raised in any Statement of Position timely filed 
and served pursuant to paragraph (b)(2)(i) of this section. The Regional 
Director may permit the employer to amend its Statement of Position in a 
timely manner for good cause.
    (3) Statement of Position in RD cases--(i) Employer's and 
Representative's Statements of Position. (A) If a petition has been 
filed under Sec.  102.61(c) and the Regional Director has issued a 
Notice of Hearing, the employer and the certified or recognized 
representative of employees shall file with the Regional Director and 
serve on the parties named in the petition their respective Statements 
of Position such that they are received by the Regional Director and the 
parties named in the petition by the date and time specified in the 
Notice of Hearing, which shall be no later than noon 8 business days 
following the issuance and service of the Notice of Hearing. The 
Regional Director may postpone the time for filing and serving the 
Statement of Position upon request of a party showing good cause. The 
Regional Director may permit the employer and the certified or 
recognized representative of employees to amend their respective 
Statements of Position in a timely manner for good cause.
    (B) The Statements of Position of the employer and the certified or 
recognized representative shall state each party's position concerning 
the Board's jurisdiction over the employer; state whether each agrees 
that the proposed unit is appropriate, and, if not, state the basis for 
the contention that the proposed unit is inappropriate, and

[[Page 69]]

state the classifications, locations, or other employee groupings that 
must be added to or excluded from the proposed unit to make it an 
appropriate unit; identify any individuals whose eligibility to vote 
each party intends to contest at the pre-election hearing and the basis 
of each such contention; raise any election bar; and state each party's 
respective positions concerning the type, date(s), time(s), and 
location(s) of the election and the eligibility period; and describe all 
other issues each party intends to raise at the hearing.
    (C) The Statements of Position shall also state the name, title, 
address, telephone number, facsimile number, and email address of the 
individual who will serve as the representative of the employer or the 
certified or recognized representative of the employees and accept 
service of all papers for purposes of the representation proceeding and 
be signed by a representative of the employer or the certified or 
recognized representative, respectively.
    (D) The employer's Statement of Position shall also include a list 
of the full names, work locations, shifts, and job classifications of 
all individuals in the proposed unit as of the payroll period preceding 
the filing of the petition who remain employed at the time of filing, 
and if the employer contends that the proposed unit is inappropriate, 
the employer shall separately list the full names, work locations, 
shifts, and job classifications of all individuals that the employer 
contends must be added to the proposed unit to make it an appropriate 
unit. The employer shall also indicate those individuals, if any, whom 
it believes must be excluded from the proposed unit to make it an 
appropriate unit. The list(s) of names shall be alphabetized (overall or 
by department) and be in an electronic format approved by the General 
Counsel unless the employer certifies that it does not possess the 
capacity to produce the list in the required form. The employer's 
Statement of Position shall also provide the requested information 
concerning the employer's relation to interstate commerce and state the 
length of the payroll period for employees in the proposed unit and the 
most recent payroll period ending date.
    (ii) Petitioner's Statement of Position. Following timely filing and 
service of any Statement(s) of Position filed pursuant to paragraph 
(b)(3)(i) of this section, the petitioner shall file with the Regional 
Director and serve on the parties named in the petition its Statement of 
Position responding to the issues raised in the other Statement(s) of 
Position, such that it is received no later than noon 3 business days 
before the hearing. The Regional Director may permit the petitioner to 
amend its Statement of Position in a timely manner for good cause.
    (c) UC or AC cases. After a petition has been filed under Sec.  
102.61(d) or (e), the Regional Director shall conduct an investigation 
and, as appropriate, 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 the director's own motion. All hearing and post-hearing 
procedure under this paragraph (c) shall be in conformance with 
Sec. Sec.  102.64 through 102.69 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.

[84 FR 69590, Dec. 18, 2019]



Sec.  102.64  Conduct of hearing.

    (a) The primary purpose of a hearing conducted under Section 9(c) of 
the Act is to determine if a question of representation exists. A 
question of representation exists if a proper petition

[[Page 70]]

has been filed concerning a unit appropriate for the purpose of 
collective bargaining or concerning a unit in which an individual or 
labor organization has been certified or is being currently recognized 
by the employer as the bargaining representative. Disputes concerning 
unit scope, voter eligibility and supervisory status will normally be 
litigated and resolved by the Regional Director before an election is 
directed. However, the parties may agree to permit disputed employees to 
vote subject to challenge, thereby deferring litigation concerning such 
disputes until after the election. If, upon the record of the hearing, 
the Regional Director finds that a question of representation exists, 
the director shall direct an election to resolve the question.
    (b) 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. Subject to the provisions of Sec.  102.66, 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.
    (c) The hearing shall continue from day to day until completed 
unless the Regional Director concludes that extraordinary circumstances 
warrant otherwise. The Regional Director may, in the director's 
discretion, adjourn the hearing to a different place by announcement 
thereof at the hearing or by other appropriate notice.

[84 FR 69593, Dec. 18, 2019]

    Editorial Note: As of March 10, 2023, 29 CFR 102.64(a) is stayed 
from May 31, 2020, until September 10, 2023.



Sec.  102.65  Motions; intervention; appeals of Hearing Officer's rulings.

    (a) All motions, including motions for intervention pursuant to 
paragraphs (b) and (e) of this section, shall 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. The 
Motion shall immediately be served on the other parties to the 
proceeding. Motions made prior to the transfer of the record 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 record to the Board, all motions shall be filed with 
the Board. Such motions shall be printed or otherwise legibly 
duplicated. Eight copies of such motions shall be filed with the Board. 
Extra copies of electronically-filed papers need not be filed. The 
Regional Director may rule upon all motions filed with him/her, causing 
a copy of the ruling to be served on the parties, or may refer the 
motion to the Hearing Officer, except 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 the Hearing Officer as hereinabove provided, 
except that the Hearing Officer shall rule on motions to intervene and 
to amend the petition only as directed by the Regional Director, and 
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. 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(f).
    (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, at the specific direction of the Regional Director, 
may by order permit intervention in person or by counsel or other 
representative to such extent and upon such terms as the Regional 
Director may deem proper, and such intervenor shall thereupon become a 
party to the proceeding.
    (c) Rulings by the Hearing Officer shall not be appealed directly to 
the

[[Page 71]]

Regional Director, except by special permission of the Regional 
Director, but shall be considered by the Regional Director when the 
director reviews the entire record. Requests to the Regional Director 
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 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 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. No party 
shall be precluded from raising an issue at a later time because it did 
not seek special permission to appeal. If the Regional Director grants 
the request for special permission to appeal, the Regional Director may 
proceed forthwith to rule on the appeal. Neither the filing nor the 
grant of such a request shall stay the proceedings unless otherwise 
ordered by the Regional Director. As stated in Sec.  102.67, the parties 
may request Board review of Regional Director actions.
    (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 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 or 
Hearing Officer with respect to any matter which could have been but was 
not raised pursuant to any other section of these Rules except 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 
paragraph (e)(1) of this section shall be filed within 10 business 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 nor will a Regional Director or the Board 
delay any decision or action during the period specified in paragraph 
(e)(2) of this section, except that, if a motion for reconsideration 
based on changed circumstances or to reopen the record based on newly 
discovered evidence states with particularity that the granting thereof 
will affect the eligibility to vote of specific employees, the Board 
agent shall have discretion to allow such employees to vote subject to 
challenge even if they are specifically excluded in the direction of 
election and to challenge or permit the moving party to challenge the 
ballots of such employees even if they are specifically included in the 
direction of election in any election conducted while such motion is 
pending. A motion for reconsideration, for rehearing, or to reopen the 
record need not be

[[Page 72]]

filed to exhaust administrative remedies.

[84 FR 69593, Dec. 18, 2019]



Sec.  102.66  Introduction of evidence: rights of parties at hearing;
preclusion; subpoenas; oral argument and briefs.

    (a) Rights of parties at hearing. Any party shall have the right to 
appear at any hearing in person, by counsel, or by other representative, 
to call, examine, and cross-examine witnesses, and to introduce into the 
record evidence of the significant facts that support the party's 
contentions and are relevant to the existence of a question of 
representation and the other issues in the case that have been properly 
raised. The Hearing Officer shall also 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) Statements of Position. Issues in dispute shall be identified as 
follows: After a Statement of Position is received in evidence and prior 
to the introduction of further evidence, all other parties shall respond 
on the record to each issue raised in the Statement. The Regional 
Director may permit any Statement of Position to be amended in a timely 
manner for good cause, in which event the other parties shall respond to 
each amended position. The Regional Director may also permit responses 
to be amended in a timely manner for good cause. The Hearing Officer 
shall not receive evidence concerning any issue as to which parties have 
not taken adverse positions, except that this provision shall not 
preclude the receipt of evidence regarding the Board's jurisdiction over 
the employer or limit the Regional Director's discretion to direct the 
receipt of evidence concerning any issue, such as the appropriateness of 
the proposed unit, as to which the Regional Director determines that 
record evidence is necessary.
    (c) Offers of proof. The Regional Director shall direct the Hearing 
Officer concerning the issues to be litigated at the hearing. The 
Hearing Officer may solicit offers of proof from the parties or their 
counsel as to any or all such issues. Offers of proof shall take the 
form of a written statement or an oral statement on the record 
identifying each witness the party would call to testify concerning the 
issue and summarizing each witness's testimony. If the Regional Director 
determines that the evidence described in an offer of proof is 
insufficient to sustain the proponent's position, the evidence shall not 
be received. But in no event shall a party be precluded from introducing 
relevant evidence otherwise consistent with this subpart.
    (d) Preclusion. A party shall be precluded from raising any issue, 
presenting any evidence relating to any issue, cross-examining any 
witness concerning any issue, and presenting argument concerning any 
issue that the party failed to raise in its timely Statement of Position 
or to place in dispute in response to another party's Statement of 
Position or response, except that no party shall be precluded from 
contesting or presenting evidence relevant to the Board's statutory 
jurisdiction to process the petition. Nor shall any party be precluded, 
on the grounds that a voter's eligibility or inclusion was not contested 
at the pre-election hearing, from challenging the eligibility of any 
voter during the election. If a party contends that the proposed unit is 
not appropriate in its Statement of Position but fails to specify the 
classifications, locations, or other employee groupings that must be 
added to or excluded from the proposed unit to make it an appropriate 
unit, the party shall also be precluded from raising any issue as to the 
appropriateness of the unit, presenting any evidence relating to the 
appropriateness of the unit, cross-examining any witness concerning the 
appropriateness of the unit, and presenting argument concerning the 
appropriateness of the unit. If the employer fails to timely furnish the 
lists of employees described in Sec.  102.63(b)(1)(iii), (b)(2)(iii), or 
(b)(3)(iii), the employer shall be precluded from contesting the 
appropriateness of the proposed unit at any

[[Page 73]]

time and from contesting the eligibility or inclusion of any individuals 
at the pre-election hearing, including by presenting evidence or 
argument, or by cross-examination of witnesses.
    (e) Objections. 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.
    (f) Subpoenas. 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 business 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. Such petition 
shall be filed with the Regional Director who may either rule upon it or 
refer it for ruling to the Hearing Officer except 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/her 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/her 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.
    (g) Election details. Prior to the close of the hearing, the Hearing 
Officer will:
    (1) Solicit the parties' positions on the type, date(s), time(s), 
and location(s) of the election and the eligibility period, but shall 
not permit litigation of those issues;
    (2) Solicit the name, address, email address, facsimile number, and 
phone number of the employer's on-site representative to whom the 
Regional Director should transmit the Notice of Election in the event 
the Regional Director directs an election;
    (3) Inform the parties that the Regional Director will issue a 
decision as soon as practicable and that the director will immediately 
transmit the document to the parties and their designated 
representatives by email, facsimile, or by overnight mail (if neither an 
email address nor facsimile number was provided); and
    (4) Inform the parties what their obligations will be under these 
Rules if the director directs an election and of the time for complying 
with such obligations.
    (h) Oral argument and briefs. 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. Any party desiring to submit a brief to the Regional

[[Page 74]]

Director shall be entitled to do so within 5 business days after the 
close of the hearing. Prior to the close of the hearing and for good 
cause the Hearing Officer may grant an extension of time to file a brief 
not to exceed an additional 10 business 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 permission of the 
Regional Director.
    (i) Hearing Officer analysis. The Hearing Officer may submit an 
analysis of the record to the Regional Director but shall make no 
recommendations.
    (j) Witness fees. Witness fees and mileage shall be paid by the 
party at whose instance the witness appears.

[84 FR 69594, Dec. 18, 2019]



Sec.  102.67  Proceedings before the Regional Director; further hearing;
action by the Regional Director; appeals from actions of the Regional
Director; statement in opposition; requests for extraordinary relief; 
Notice of Election; voter list.

    (a) Proceedings before Regional Director. The Regional Director may 
proceed, either forthwith upon the record or after oral argument, the 
submission of briefs, or further hearing, as the director may deem 
proper, to determine whether a question of representation exists in a 
unit appropriate for purposes of collective bargaining as provided in 
Sec.  102.64(a), and to direct an election, dismiss the petition, or 
make other disposition of the matter. A decision by the Regional 
Director upon the record shall set forth the director's findings, 
conclusions, and order or direction.
    (b) Directions of elections. If the Regional Director directs an 
election, the direction may specify the type, date(s), time(s), and 
location(s) of the election and the eligibility period, but the Regional 
Director retains discretion to continue investigating these details 
after directing an election and to specify them in a subsequently-issued 
Notice of Election. The Regional Director shall schedule the election 
for the earliest date practicable, but unless a waiver is filed, the 
Regional Director will normally not schedule an election before the 20th 
business day after the date of the direction of election, to permit the 
Board to rule on any request for review which may be filed pursuant to 
paragraph (c) of this section. The Regional Director shall transmit the 
direction of election to the parties and their designated 
representatives by email, facsimile, or by overnight mail (if neither an 
email address nor facsimile number was provided). The Regional Director 
shall also transmit the Board's Notice of Election to the parties and 
their designated representatives by email, facsimile, or by overnight 
mail (if neither an email address nor facsimile number was provided), 
whether transmitted simultaneously with the direction of election or 
separately thereafter. If the direction of election provides for 
individuals to vote subject to challenge, the Notice of Election shall 
so state, and shall advise employees that the individuals are neither 
included in, nor excluded from, the bargaining unit, inasmuch as they 
have been permitted to vote subject to challenge. The election notice 
shall further advise employees that the eligibility or inclusion of the 
individuals will be resolved, if necessary, following the election.
    (c) Requests for Board review of Regional Director actions. Upon the 
filing of a request therefor with the Board by any interested person, 
the Board may review any action of a Regional Director delegated to him/
her under Section 3(b) of the Act except as the Board's Rules provide 
otherwise, but such a review shall not, unless specifically ordered by 
the Board, operate as a stay of any action by the Regional Director. The 
request for review may be filed at any time following the action until 
10 business days after a final disposition of the proceeding by the 
Regional Director. No party shall be precluded from filing a request for 
review of the direction of election within the time provided in this 
paragraph because it did not file a request for review of the direction 
of election prior to the election.
    (d) Grounds for review. The Board will grant a request for review 
only where compelling reasons exist therefor. Accordingly, a request for 
review may be

[[Page 75]]

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 any 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.
    (e) Contents of request. A request for review must be a self-
contained document enabling the Board to rule on the basis of its 
contents without the necessity of recourse to the record; however, the 
Board may, in its discretion, examine the record in evaluating the 
request. With respect to the ground listed in paragraph (d)(2) of this 
section, and other grounds where appropriate, the 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. Such 
request may not raise any issue or allege any facts not timely presented 
to the Regional Director.
    (f) Opposition to request. Any party may, within 5 business days 
after the last day on which the request for review must be filed, file 
with the Board a statement in opposition which shall be served in 
accordance with the requirements of paragraph (i) of this section. The 
Board may grant or deny the request for review without awaiting a 
statement in opposition. No reply to the opposition may be filed except 
upon special leave of the Board.
    (g) Finality; waiver; denial of request. The Regional Director's 
actions are final unless a request for review is granted. 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.
    (h) Grant of review; briefs. The grant of a request for review shall 
not stay the Regional Director's action 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 10 
business 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. No reply briefs 
may be filed except upon special leave of the Board. Where review has 
been granted, the Board may provide for oral argument or further 
hearing. The Board will consider the entire record in the light of the 
grounds relied on for review and shall make such disposition of the 
matter as it deems appropriate. 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.
    (i) Format, Service, and Extensions--(1) Format of request. All 
documents filed with the Board under the provisions of this section 
shall be double spaced, on 8 1/2- by 11-inch paper, and shall be printed 
or otherwise legibly duplicated. Extra copies of electronically-filed 
papers need not be filed. Requests for review, including briefs in 
support thereof and any motions under paragraph (j) of this section; 
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 pursuant to the procedures set forth in Sec.  102.2(c). 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. A

[[Page 76]]

party may combine a request for review of the Regional Director's 
decision and direction of election with a request for review of a 
Regional Director's post-election decision, if the party has not 
previously filed a request for review of the pre-election decision. A 
party may not, however, file more than one request for review of a 
particular action or decision by the Regional Director. Repetitive 
requests will not be considered.
    (2) Service. 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 certificate of service shall be filed with 
the Board together with the document.
    (3) Extensions. 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 pursuant to Sec.  102.2(c) 
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.
    (j) Requests for extraordinary relief. (1) A party requesting review 
may also move in writing to the Board for one or more of the following 
forms of relief:
    (i) Expedited consideration of the request;
    (ii) A stay of some or all of the proceedings, including the 
election; or
    (iii) Impoundment and/or segregation of some or all of the ballots.
    (2) Relief will be granted only upon a clear showing that it is 
necessary under the particular circumstances of the case. The pendency 
of a motion does not entitle a party to interim relief, and an 
affirmative ruling by the Board granting relief is required before the 
action of the Regional Director will be altered in any fashion.
    (k) Notice of Election. The employer shall post copies of the 
Board's Notice of Election in conspicuous places, including all places 
where notices to employees in the unit are customarily posted, at least 
3 full working days prior to 12:01 a.m. of the day of the election and 
shall also distribute it electronically to all eligible voters 
(including individuals permitted to vote subject to challenge) if the 
employer customarily communicates with employees in the unit 
electronically. 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. For the purposes of this subpart, 
the term working day shall mean an entire 24-hour period excluding 
Saturdays, Sundays, and holidays. The employer's failure properly to 
post or distribute 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)(8). A party 
shall be estopped from objecting to the nonposting of notices if it is 
responsible for the nonposting, and likewise shall be estopped from 
objecting to the nondistribution of notices if it is responsible for the 
nondistribution.
    (l) Voter list. Absent extraordinary circumstances specified in the 
direction of election, the employer shall, within 2 business days after 
issuance of the direction, provide to the Regional Director and the 
parties named in such direction a list of the full names, work 
locations, shifts, job classifications, and contact information 
(including home addresses, available personal email addresses, and 
available home and personal cellular ``cell'' telephone numbers) of all 
eligible voters. The employer shall also include in separate sections of 
that list the same information for those individuals who will be 
permitted to vote subject to challenge. In order to be timely filed and 
served, the list must be received by the Regional Director and the 
parties named in the direction respectively within 2 business days after 
issuance of the direction of election unless a longer time is specified 
therein. The list of names shall be alphabetized (overall or by 
department) and be in an electronic format approved by the General 
Counsel unless the employer certifies that it does not possess the 
capacity to produce the list in the required form.

[[Page 77]]

When feasible, the list shall be filed electronically with the Regional 
Director and served electronically on the other parties named in the 
direction. A certificate of service on all parties shall be filed with 
the Regional Director when the voter list is filed. The employer's 
failure to file or serve the list within the specified time or in proper 
format shall be grounds for setting aside the election whenever proper 
and timely objections are filed under the provisions of Sec.  
102.69(a)(8). The employer shall be estopped from objecting to the 
failure to file or serve the list within the specified time or in the 
proper format if it is responsible for the failure. The parties shall 
not use the list for purposes other than the representation proceeding, 
Board proceedings arising from it, and related matters.

[84 FR 69595, Dec. 18, 2019, as amended at 88 FR 14912, Mar. 10, 2023]

    Editorial Note: As of March 10, 2023, 29 CFR 102.67(b) is stayed 
from May 31, 2020, until September 10, 2023.



Sec.  102.68  Record in pre-election proceeding; 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, statements of position, responses to statements of 
position, offers of proof made at the pre-election hearing, 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 of 
an order granting a request for review by the Board, the Regional 
Director shall transmit the record to the Board.

[84 FR 69597, Dec. 18, 2019]



Sec.  102.69  Election procedure; tally of ballots; objections; 
certification by the Regional Director; hearings; Hearing Officer
reports on objections and challenges; exceptions to Hearing Officer
reports; Regional Director decisions on objections and challenges.

    (a) Election procedure; tally; objections. (1) 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.
    (2) All elections shall be by secret ballot.
    (3) 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, except 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 representation interest among the 
employees in the unit.
    (4) A pre-election conference may be held at which the parties may 
check the list of voters and attempt to resolve any questions of 
eligibility or inclusions in the unit.
    (5) When the election is conducted manually, any party may be 
represented by observers of its own selection, subject to such 
limitations as the Regional Director may prescribe.
    (6) 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.
    (7) Upon the conclusion of the election the ballots will be counted 
and a tally of ballots prepared and immediately made available to the 
parties.
    (8) Within 5 business days after the tally of ballots has been 
prepared, any party may file with the Regional Director 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

[[Page 78]]

therefor and a written offer of proof in the form described in Sec.  
102.66(c) insofar as applicable, except that the Regional Director may 
extend the time for filing the written offer of proof in support of the 
election objections upon request of a party showing good cause. Such 
filing(s) must be timely whether or not the challenged ballots are 
sufficient in number to affect the results of the election. The party 
filing the objections shall serve a copy of the objections, including 
the short statement of reasons therefor, but not the written offer of 
proof, on each of the other parties to the case, and include a 
certificate of such service with the objections. A person filing 
objections by facsimile pursuant to Sec.  102.5(e) shall also file an 
original for the Agency's records, but failure to do so shall not affect 
the validity of the filing if otherwise proper. In addition, extra 
copies need not be filed if the filing is by facsimile or electronically 
pursuant to Sec.  102.5(e) or (c). The Regional Director will transmit a 
copy of the objections to be served on each of the other parties to the 
proceeding, but shall not transmit the offer of proof.
    (b) Certification in the absence of objections, determinative 
challenges and runoff elections. If no objections are filed within the 
time set forth in paragraph (a)(8) of this section, 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.
    (c) Regional director's resolution of objections and challenges--(1) 
Regional director's determination to hold a hearing--(i) Decisions 
resolving objections and challenges without a hearing. If timely 
objections are filed to the conduct of an election or to conduct 
affecting the results of the election, and the Regional Director 
determines that the evidence described in the accompanying offer of 
proof would not constitute grounds for setting aside the election if 
introduced at a hearing, and the Regional Director determines that any 
determinative challenges do not raise substantial and material factual 
issues, the Regional Director shall issue a decision disposing of the 
objections and determinative challenges, and a certification of the 
results of the election, including certification of representative where 
appropriate.
    (ii) Notices of hearing on objections and challenges. If timely 
objections are filed to the conduct of the election or to conduct 
affecting the results of the election, and the Regional Director 
determines that the evidence described in the accompanying offer of 
proof could be grounds for setting aside the election if introduced at a 
hearing, or if the challenged ballots are sufficient in number to affect 
the results of the election, and raise substantial and material factual 
issues, the Regional Director shall transmit to the parties and their 
designated representatives by email, facsimile, or by overnight mail (if 
neither an email address nor facsimile number was provided) a Notice of 
Hearing before a Hearing Officer at a place and time fixed therein. The 
Regional Director shall set the hearing for a date 15 business days 
after the preparation of the tally of ballots or as soon as practicable 
thereafter, unless the parties agree to an earlier date, except that the 
Regional Director may consolidate the hearing concerning objections and 
challenges with an unfair labor practice proceeding before an 
Administrative Law Judge. In any proceeding wherein the election has 
been held pursuant to Sec.  102.62(a) or (c) and the representation case 
has been consolidated with an unfair labor practice proceeding for 
purposes of hearing, the Administrative Law Judge shall, after issuing a 
decision, sever the representation case and transfer it to the Regional 
Director for further processing.
    (iii) Hearings; Hearing Officer reports; exceptions to Regional 
Director. The hearing on objections and challenges shall continue from 
day to day until completed unless the Regional Director concludes that 
extraordinary circumstances warrant otherwise. 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. Any party 
shall have the right to appear at the hearing

[[Page 79]]

in person, by counsel, or by other representative, to call, examine, and 
cross-examine witnesses, and to introduce into the record evidence of 
the significant facts that support the party's contentions and are 
relevant to the objections and determinative challenges that are the 
subject of the hearing. The Hearing Officer may rule on offers of proof. 
Any party desiring to submit a brief to the Hearing Officer shall be 
entitled to do so within 5 business days after the close of the hearing. 
Prior to the close of the hearing and for good cause the Hearing Officer 
may grant an extension of time to file a brief not to exceed an 
additional 10 business days. Upon the close of such hearing, the Hearing 
Officer shall 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. Any party may, 
within 10 business days from the date of issuance of such report, file 
with the Regional Director an original and one 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 5 business 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 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. Extra copies of electronically-filed 
papers need not be filed. The Regional Director shall thereupon decide 
the matter upon the record or make other disposition of the case. 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.
    (2) Regional Director decisions and Board review. The decision of 
the Regional Director disposing of challenges and/or objections may 
include a certification of the results of the election, including 
certification of representative where appropriate, and shall be final 
unless a request for review is granted. If a consent election has been 
held pursuant to Sec. Sec.  102.62(a) or (c), the decision of the 
Regional Director is not subject to Board review. If the election has 
been conducted pursuant to Sec.  102.62(b), or by a direction of 
election issued following any proceeding under Sec.  102.67, the parties 
shall have the right to Board review set forth in Sec.  102.67, except 
that in any proceeding wherein a representation case has been 
consolidated with an unfair labor practice proceeding for purposes of 
hearing and the election was conducted pursuant to Sec. Sec.  102.62(b) 
or 102.67, the provisions of Sec.  102.46 shall govern with respect to 
the filing of exceptions or an answering brief to the exceptions to the 
Administrative Law Judge's decision, and a request for review of the 
Regional Director's decision and direction of election shall be due at 
the same time as the exceptions to the Administrative Law Judge's 
decision are due.
    (d) Record for objections and challenges. (1)(i) Record in case with 
hearing. 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, offers 
of proof made at the post-election hearing, any briefs or other legal 
memoranda submitted by the parties, any report on such objections and/or 
on challenged ballots, exceptions, the decision of the Regional 
Director, any requests for review, 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) Record in case with no hearing. 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,

[[Page 80]]

any decision on objections or on 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, 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 (d)(3) of this section.
    (2) Immediately 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 (d)(1) of this 
section.
    (3) In a proceeding pursuant to this section in which no hearing is 
held, a party filing a request for review of a Regional Director's 
decision on challenged ballots or on objections or on both, or any 
opposition thereto, may support its submission to the Board by appending 
thereto copies of any offer of proof, including copies of any affidavits 
or other documentary evidence, it has timely submitted to the Regional 
Director and which were not included in the decision. Documentary 
evidence so appended shall thereupon become part of the record in the 
proceeding. Failure to append that evidence to its submission to the 
Board in the representation proceeding as provided above, shall preclude 
a party from relying on such evidence in any subsequent unfair labor 
proceeding.
    (e) Revised tally of ballots. In any case under this section 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 5 business 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.
    (f) Format of filings with Regional Director. All documents filed 
with the Regional Director under the provisions of this section shall be 
filed double spaced, on 8\1/2\- by 11-inch paper, and shall be printed 
or otherwise legibly duplicated. Extra copies of electronically-filed 
papers need not be filed. 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 Regional Director by motion, 
setting forth the reasons therefor, filed pursuant to the procedures set 
forth in Sec.  102.2(c). 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.
    (g) Extensions of time. Requests for extensions of time to file 
exceptions, requests for review, supporting briefs, or answering briefs, 
as permitted by this section, shall be filed pursuant to Sec.  102.2(c) 
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.
    (h) Final disposition. For the purposes of filing a request for 
review pursuant to Sec.  102.67(c) or paragraph (c)(2) of this section, 
a case is considered to have reached final disposition when the Regional 
Director dismisses the petition or issues a post-election decision that 
will result in the issuance of a certification of results (including, 
where appropriate, a certification of representative) absent the filing 
of a request for review.

[84 FR 69597, Dec. 18, 2019, as amended at 88 FR 14912, Mar. 10, 2023]



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.

[[Page 81]]

    (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 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 the 
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.

[[Page 82]]

    (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 10 business days of service of the notice of 
dismissal or notification that the petition is to be held in abeyance. 
The request shall contain a complete statement setting forth facts and 
reasons upon which the request is based. The request shall be printed or 
otherwise legibly duplicated. Extra copies of electronically-filed 
papers need not be filed. The request must comply with the formatting 
requirements set forth in Sec.  102.67(i)(1). Requests for an extension 
of time within which to file the request for review shall be filed 
pursuant to Sec.  102.2(c) with the Board in Washington, DC, and a 
certificate of service shall accompany the requests.
    (d) Any party may, within 5 business days after the last day on 
which the request for review must be filed, file with the Board a 
statement in opposition to the request for review. An opposition must be 
filed with the Board in Washington, DC, and a copy filed with the 
Regional Direction and copies served on all the other parties. The 
opposition must comply with the formatting requirements set forth in 
Sec.  102.67(i)(1). Requests for an extension of time within which to 
file the opposition shall be filed pursuant to Sec.  102.2(c) with the 
Board in Washington, DC, and a certificate of service shall accompany 
the requests. The Board may grant or deny the request for review without 
awaiting a statement in opposition. No reply to the opposition may be 
filed except upon special leave of the Board.

[84 FR 69599, Dec. 18, 2019]



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 the general counsel has assumed jurisdiction.

    (a) Whenever it appears necessary in order to effectuate the 
purposes of the Act, or to avoid unnecessary costs or delay, the General 
Counsel may permit a petition to be filed with him/her 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/her, for the purpose 
of investigation or consolidation with any other proceeding which may 
have been instituted in a Regional Office or with him/her; 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 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 paragraphs 
(a)(2) and (4) of this section with respect to proceedings pending in 
his/her Region.

[32 FR 9550, July 1, 1967, as amended at 82 FR 43698, Sept. 19, 2017]



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

    Source: 24 FR 9102, Nov. 7, 1959. Redesignated at 82 FR 11754, Feb. 
24, 2017.

[[Page 83]]



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 will investigate such charge, giving it the priority 
specified in subpart H of this part.

[82 FR 11764, Feb. 24, 2017]



Sec.  102.74  Complaint and formal proceedings.

    If it appears to the Regional Director that the charge has merit, 
formal proceedings will be instituted in accordance with the procedures 
described in Sec. Sec.  102.15 through 102.51, 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, the Director will decline to issue a 
complaint, and the provisions of Sec.  102.19, including the provisions 
for appeal to the General Counsel, are applicable unless an election has 
been directed under Sec. Sec.  102.77 and 102.78, in which event the 
provisions of Sec.  102.81 are applicable.

[82 FR 11764, Feb. 24, 2017]



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 will suspend proceedings on the charge and will 
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.

[82 FR 11764, Feb. 24, 2017]



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, except that if a 
charge under Sec.  102.73 has been filed against the labor organization 
on whose behalf picketing has been conducted, the petition will 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 union represents a substantial number of 
employees; 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.

[82 FR 11764, Feb. 24, 2017]



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 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 D of this part, 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) of the Act 
is warranted, and that the policies of the Act would be effectuated 
thereby, the Regional Director shall forthwith proceed to conduct an 
election by secret ballot of the employees in an appropriate unit, or 
make other disposition of the matter, except that in any case

[[Page 84]]

in which it appears to the Regional Director that the proceeding raises 
questions which cannot be decided without a hearing, the Director 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, shall be governed insofar as 
applicable by Sec. Sec.  102.63 through 102.68.

[24 FR 9102, Nov. 7, 1959, as amended at 26 FR 3892, May 4, 1961; 76 FR 
80188, Dec. 22, 2011; 79 FR 3494, Jan. 22, 2014; 79 FR 74488, Dec. 15, 
2014; 82 FR 11765, Feb. 24, 2017]



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/she shall so notify the parties in writing with a 
simple statement of the grounds for his/her decision.
    (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; 82 FR 
43699, Sept. 19, 2017]



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

[[Page 85]]

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/she shall so advise the parties in writing, accompanied by a 
simple statement of the procedural or other grounds for his/her 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/she shall so advise the parties in writing, 
accompanied by a simple statement of the procedural or other grounds for 
his/her 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; 82 
FR 43699, Sept. 19, 2017]



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 F_Procedure for Referendum Under Section 9(e) of the Act

    Source: 24 FR 9102, Nov. 7, 1959. Redesignated at 82 FR 11754, Feb. 
24, 2017.



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 must be sworn to before a notary public, Board agent, 
or other person duly authorized by law to administer oaths and take 
acknowledgments 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/her knowledge and belief. One original of the 
petition must 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 must also file an original for the Agency's records, but 
failure to do so must not affect the validity of the filing by 
facsimile, if otherwise proper. A person filing a petition 
electronically need not file an original. The petition may be withdrawn 
only with the approval of the Regional Director with whom such petition 
was filed. Upon approval of the withdrawal of any petition the case will 
be closed.

[82 FR 11765, Feb. 24, 2017, as amended at 82 FR 43699, Sept. 19, 2017]



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.

[[Page 86]]

    (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 petitioner, and the name, title, 
address, telephone number, facsimile number, and email address of the 
individual who will serve as the representative of the petitioner and 
accept service of all papers for purposes of the proceeding.
    (j) A statement that 30 percent or more of the bargaining unit 
employees covered by an agreement between their employer and a labor 
organization made pursuant to Section 8(a)(3) of the Act, desire that 
the authority to make such an agreement be rescinded.
    (k) Any other relevant facts.
    (l) Evidence supporting the statement that 30 percent or more of the 
bargaining unit employees desire to rescind the authority of their 
employer and labor organization to enter into an agreement made pursuant 
to Section 8(a)(3) of the Act. Such evidence must be filed together with 
the petition, but must not be served on any other party.
    (m) Evidence filed pursuant to paragraph (l) of this section 
together with a petition that is filed by facsimile or electronically, 
which includes original signatures that cannot be transmitted in their 
original form by the method of filing of the petition, may be filed by 
facsimile or in electronic form provided that the original documents are 
received by the regional director no later than 2 days after the 
facsimile or electronic filing.
    (n) The type, date(s), time(s) and location(s) of the election 
sought.

[24 FR 9102, Nov. 7, 1959, as amended at 79 FR 74489, Dec. 15, 2014; 82 
FR 11765, Feb. 24, 2017]



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, the 
Regional Director will 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, except that, in any case in which it appears to the Regional 
Director that the proceeding raises questions which cannot be decided 
without a hearing, the Director 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 will 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 upon grant of a request for review, by the Board.

[82 FR 11765, Feb. 24, 2017]



Sec.  102.86  Hearing; posthearing procedure.

    The method of conducting the hearing and the procedure following the 
hearing will be governed, insofar as applicable, by Sec. Sec.  102.63 
through 102.68.

[82 FR 11765, Feb. 24, 2017]



Sec.  102.87  Method of conducting balloting; postballoting procedure.

    The method of conducting the balloting and the postballoting 
procedure

[[Page 87]]

will be governed by the provisions of Sec.  102.69, insofar as 
applicable.

[82 FR 11765, Feb. 24, 2017]



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 appears to the Regional Director that no referendum should 
be conducted, the Regional Director will dismiss the petition by 
administrative action. Such dismissal will be in writing and accompanied 
by 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 must contain a complete 
statement setting forth the facts and reasons upon which the request is 
based.

[82 FR 11765, Feb. 24, 2017]



 Subpart G_Procedure to Hear and Determine Disputes Under Section 10(k) 
                               of the Act

    Source: 82 FR 11766, Feb. 24, 2017, unless otherwise noted.



Sec.  102.89  Initiation of proceedings.

    Whenever it is charged that any person has engaged in an unfair 
labor practice within the meaning of Section 8(b)(4)(D) of the Act, the 
Regional Director of the office in which such charge is filed or to 
which it is referred will, as soon as possible after the charge has been 
filed, serve on the parties a copy of the charge and will investigate 
such charge and if it is deemed appropriate to seek injunctive relief of 
a district court pursuant to Section 10(l) of the Act, the Regional 
Director will give it priority over all other cases in the office except 
other cases under Section 10(l) and cases of like character.



Sec.  102.90  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 has arisen, the Regional Director will serve 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 stated in the 
Notice. The hearing date will not be less than 10 days after service of 
the notice of the filing of the charge. The Notice of Hearing must 
contain a simple statement of the issues involved in such dispute. Such 
Notice will be issued promptly, and, in cases in which it is deemed 
appropriate to seek injunctive relief pursuant to Section 10(l) of the 
Act, will normally be issued within 5 days of the date upon which 
injunctive relief is first sought. Hearings will be conducted by a 
Hearing Officer, and the procedure will conform, insofar as applicable, 
to the procedure set forth in Sec. Sec.  102.64 through 102.68. Upon the 
close of the hearing, the proceeding will be transferred to the Board, 
and the Board will proceed either promptly upon the record, or after 
oral argument, or the submission of briefs, or further hearing, to 
determine the dispute or otherwise dispose of the matter. Parties who 
desire to file a brief with the Board must do so within 7 days after the 
close of the hearing. However, no briefs will be filed in cases 
designated in the Notice of Hearing as involving the national defense, 
and the parties, after the close of the evidence, may argue orally upon 
the record their respective contentions and positions; except that, 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 leave to file briefs and set a time for filing. 
Simultaneously upon such filing, a copy must be served on the other 
parties. No reply brief may be filed except upon special leave of the 
Board.

[[Page 88]]



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 will dismiss the 
charge. If no satisfactory evidence of compliance is submitted, the 
Regional Director will proceed with the charge under Section 8(b)(4)(D) 
and Section 10 of the Act and the procedure prescribed in Sec. Sec.  
102.9 through 102.51 will, insofar as applicable, govern. However, if 
the Board determination is that employees represented by a Charged Union 
are entitled to perform the work in dispute, the Regional Director will 
dismiss the charge as to that union irrespective of whether the employer 
has complied with that determination.



Sec.  102.92  Review of determination.

    The record of the proceeding under Section 10(k) and the 
determination of the Board will become a part of the record in such 
unfair labor practice proceeding and may be subject to judicial review 
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 will dismiss the charge 
and will withdraw the Notice of Hearing if Notice has issued. If, either 
before or after issuance of the 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 will defer action upon the charge and will 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, the Regional 
Director may issue a complaint under Sec.  102.15, and the procedure 
prescribed in Sec. Sec.  102.9 through 102.51 will, insofar as 
applicable, govern; and Sec. Sec.  102.90 through 102.92 are 
inapplicable, except 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 will dismiss the charge as to that union irrespective of 
whether the employer has complied with that determination.



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

    Source: 82 FR 11766, Feb. 24, 2017, unless otherwise noted.



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 
will be heard expeditiously and the case will 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 Administrative Law Judge 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 will promptly 
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 Administrative Law Judge.



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 practice within the meaning of Section 8(b)(4)(A), (B), (C), 
8(b)(7), or 8(e) of the Act, the Regional Office in which such charge is 
filed or to which it is referred

[[Page 89]]

will give it priority over all other cases in the office except cases of 
like character and cases under Section 8(b)(4)(D) 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 Section 8(a)(3) or 8(b)(2), the 
Regional Office in which such charge is filed or to which it is referred 
will 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 injunctive relief pursuant to Section 10(l) of the Act is 
sought in district court, a complaint against the party or parties 
sought to be enjoined, covering the same subject matter as the 
application for injunctive relief, will be issued promptly, normally 
within 5 days of the date when injunctive relief is first sought, except 
in cases in which a Notice of Hearing under Section 10(k) of the Act has 
issued.



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 will be heard expeditiously and the case will 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) will be heard 
expeditiously and the case will 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 I_Advisory Opinions and Declaratory Orders Regarding Board 
                              Jurisdiction

    Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted. 
Redesignated at 82 FR 11754, Feb. 24, 2017.



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.

    (a) A petition for an advisory opinion, when filed by an agency or 
court of a State or territory, must 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) The petition or request must be submitted to the Board in 
Washington, DC.

[82 FR 11767, Feb. 24, 2017]



Sec.  102.100  Notice of petition; service of petition.

    Upon the filing of a petition, the petitioner must simultaneously 
serve, in

[[Page 90]]

the manner provided by Sec.  102.5(g), 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 must be filed with 
the petition as provided by Sec.  102.5(h).

[82 FR 11767, Feb. 24, 2017]



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. The response must be filed with the Board in Washington, 
DC. The response must simultaneously be served on all other parties to 
the proceeding, and a statement of service must be filed in accordance 
with the provisions of Sec.  102.5(h).

[82 FR 11767, Feb. 24, 2017]



Sec.  102.102  Intervention.

    Any person desiring to intervene must file a motion for 
intervention, stating the grounds upon which such person claims to have 
an interest in the petition. The motion must be filed with the Board in 
Washington, DC.

[82 FR 11767, Feb. 24, 2017]



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

    The Board will 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 the Board 
would or would not assert jurisdiction. Such determination will be in 
the form of an advisory opinion and will be served on the parties. No 
briefs may be filed except upon special permission of the Board.

[82 FR 11767, Feb. 24, 2017]



Sec.  102.104  Withdrawal of petition.

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

[82 FR 11767, Feb. 24, 2017]



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, 
the General Counsel may file a petition with the Board for a declaratory 
order disposing of the jurisdictional issue in the case. Such petition 
may be withdrawn at any time prior to the issuance of the Board's order.

[82 FR 11767, Feb. 24, 2017]



Sec.  102.106  Contents of petition for declaratory order.

    (a) A petition for a declaratory order must allege the following:
    (1) The name of the employer.
    (2) The general nature of the employer's business.
    (3) The case numbers of the unfair labor practice and representation 
cases.
    (4) The commerce data relating to the operations of such business.
    (5) Whether any proceeding involving the same subject matter is 
pending before an agency or court of a State or territory.
    (b) The petition must be filed with the Board in Washington, DC.

[82 FR 11767, Feb. 24, 2017]



Sec.  102.107  Notice of petition; service of petition.

    Upon filing a petition, the General Counsel will simultaneously 
serve a copy thereof on all parties and must file a statement of service 
as provided by Sec.  102.5(h).

[82 FR 11767, Feb. 24, 2017]



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, respond to the petition, admitting or 
denying its allegations. The response must be filed with the Board in 
Washington, DC. The response must be served on the General Counsel and 
all other parties, and a

[[Page 91]]

statement of service must be filed as provided by Sec.  102.5(h).

[82 FR 11767, Feb. 24, 2017]



Sec.  102.109  Intervention.

    Any person desiring to intervene must file a motion for 
intervention, stating the grounds upon which such person claims to have 
an interest in the petition. The motion must be filed with the Board in 
Washington, DC.

[82 FR 11767, Feb. 24, 2017]



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

    The Board will 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 the Board would or 
would not assert jurisdiction over the employer. Such determination will 
be made by a declaratory order, with like effect as in the case of other 
orders of the Board, and will be served on the parties. Any party 
desiring to file a brief must file the brief with the Board in 
Washington, DC, with a statement that copies are being served 
simultaneously on the other parties.

[82 FR 11767, Feb. 24, 2017]



Sec. Sec.  102.111-102.114  [Reserved]



           Subpart J_Certification and Signature of Documents

    Source: 82 FR 11768, Feb. 24, 11768, Feb. 24, 2017, unless otherwise 
noted.



Sec.  102.115  Certification of Board papers and documents.

    The Executive Secretary of the Board, or, in the event of the 
Executive Secretary's absence or disability, whomever may be designated 
by the Board in the Executive Secretary's place, will certify copies of 
all papers and documents which are a part of any of the files or records 
of the Board as necessary or desirable from time to time.



Sec.  102.116  Signature on Board orders.

    The Executive Secretary, Deputy Executive Secretary, or an Associate 
Executive Secretary, or, in the event of their absence or disability, 
whomever may be designated by the Board in their place, is hereby 
authorized to sign all orders of the Board.



                    Subpart K_Records and Information

    Source: 82 FR 11768, Feb. 24, 2017, unless otherwise noted.



Sec.  102.117  Freedom of Information Act Regulations: Agency materials
including formal documents available pursuant to the Freedom of
Information Act; 
          requests for described records; time limit for response; 
          appeal from denial of request; fees for document search, 
          duplication, and review; files and records not subject to 
          inspection.

    (a)(1) Introduction. This subpart contains the Rules that the 
National Labor Relations Board (Agency) follows in processing requests 
for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. 
The Rules in this subpart may be read in conjunction with the text of 
the FOIA and the Uniform Freedom of Information Fee Schedule and 
Guidelines published by the Office of Management and Budget (OMB 
Guidelines). Some records will be made available on the Agency's Web 
site at www.nlrb.gov to facilitate public access. Requests made by 
individuals for records about themselves under the Privacy Act of 1974, 
5 U.S.C. 552(a), are processed under Sec.  102.119.
    (2) FOIA Officials. The following are designated as the Agency's 
FOIA officials with responsibilities for complying with the FOIA:
    (i) FOIA Officer. The Assistant General Counsel for the FOIA Branch 
is the Agency's designated FOIA Officer.
    (ii) Chief FOIA Officer. The Associate General Counsel for the 
Division of Legal Counsel is the Agency's designated Chief FOIA Officer.
    (iii) FOIA Public Liaison. The official(s) designated by the Chief 
FOIA Officer is the Agency's FOIA Public Liaison, with overall 
responsibilities for assisting in reducing delays, increasing 
transparency, understanding the status of requests, and assisting in the 
resolution of disputes. The designated FOIA

[[Page 92]]

Public Liaison is available on the Agency's Web site.
    (3) Authority to respond to requests and administrative appeals. The 
FOIA Officer has the authority to act upon and respond on behalf of the 
Board and the General Counsel to all requests for Agency records, except 
for records maintained by the Agency's Office of the Inspector General. 
The Office of the Inspector General has the authority to respond to all 
requests for records maintained by that Office. The Chief FOIA Officer 
has the authority to respond on behalf of the Chairman of the Board and 
the General Counsel to all administrative appeals of adverse 
determinations. The Chief FOIA Officer's authority includes responding, 
on behalf of the Chairman of the Board, to appeals of initial 
determinations made by the Office of the Inspector General.
    (4) Records made available. Records that are required by the FOIA 
under 5 U.S.C. 552(a)(2) may be accessed through the Agency's Web site 
at www.nlrb.gov.
    (b)(1) Formal documents. 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 pursuant to the procedures in this section.
    (2) Certification of records. The Executive Secretary will certify 
copies of all formal documents maintained by the Board upon request made 
a reasonable time in advance of need and payment of lawfully prescribed 
costs. The Deputy General Counsel will certify copies of any record 
maintained by, or originating from, the Office of General Counsel and 
any division, branch, or office organizationally overseen by the Office 
of the General Counsel, including any Regional, Subregional, or Resident 
Office.
    (c)(1) Making FOIA requests to the Agency--(i) Content of requests--
(A) Description of records sought. Requests for records must be in 
writing and must reasonably describe the record so as to permit its 
identification and location. To the extent possible, requesters may 
include specific information, such as the NLRB case number, case name, 
date(s) of record(s) requested, and/or full name of the party, author, 
or recipient of the record(s) in question. Requesters should include as 
much detail as practicable about the records sought. Requesters may 
contact the FOIA Public Liaison to discuss the records sought and to 
receive assistance in describing the records.
    (B) Assumption of fees. Requests must contain a specific statement 
assuming financial responsibility for the direct costs of responding to 
the request in accordance with paragraph (d)(2) of this section.
    (C) Specificity requirement. Requests that do not reasonably 
describe the records sought or assume sufficient financial 
responsibility for responding to the request, or that otherwise fail to 
comply with this section, may delay the Agency's response to the 
request.
    (ii) Transmission of requests. Requests for records maintained by 
the Agency should be made to the FOIA Branch, which is located in the 
Agency's Washington, DC headquarters. The FOIA Branch is responsible for 
responding to requests for records originating from, or maintained by, 
the Board and the Office of the General Counsel, including Regional, 
Subregional, and resident offices. Requests for records maintained by 
the Agency's Office of the Inspector General may be made directly to 
that office.
    (A) Requesters may file FOIA requests electronically through the 
Agency's Web site (https://www.nlrb.gov), which is the preferred method 
of submission to allow for prompt receipt, including for requests for 
records maintained by the Agency's Office of the Inspector General. FOIA 
requests may also be made by mail to the Agency's Washington, DC 
headquarters address, by email to the Agency's designated mailbox, or by 
facsimile. The mailing address, email address, and facsimile number are 
available on the Agency's Web site.
    (B) Requests not made through the Agency's Web site should be 
clearly marked to indicate that they contain a request for records under 
the Freedom of Information Act.
    (C) Requests made to an Agency division, branch, or any office other 
than the FOIA Branch will be forwarded to

[[Page 93]]

the FOIA Branch by the receiving office, but in that event, the 
applicable time limit for response set forth in paragraph (i) of this 
section will be calculated from the date of receipt by the FOIA Branch. 
The receiving office will normally forward the request to the FOIA 
Branch within 10 days of the initial receipt.
    (D) Requests made to the Agency for records that originated with 
another governmental agency may be referred to that agency.
    (2) Processing of FOIA requests--(i) Timing of response. The Agency 
ordinarily responds to FOIA requests according to their order of 
receipt. An initial determination will be issued within 20 working days 
(i.e., exempting Saturdays, Sundays, and legal public holidays) after 
the receipt of a request. Responsive records are released at the time of 
the determination or, if necessary, at a time thereafter on a rolling 
basis.
    (ii) Expedited treatment. A request for expedited processing may be 
made at any time during the pendency of a FOIA request or appeal. 
Requests and appeals will be taken out of order and given expedited 
treatment when warranted. A requester must provide sufficient 
justification to grant such processing by showing that any one of the 
following circumstances exists:
    (A) The lack of expedited treatment could reasonably be expected to 
pose an imminent threat to the life or physical safety of an individual; 
or
    (B) There is an urgency to inform the public about an actual or 
alleged federal government activity, if made by a person primarily 
engaged in disseminating information; or
    (C) The loss of substantial due process rights; or
    (D)(1) There is widespread and exceptional media interest and 
possible questions exist about the government's integrity which may 
affect public confidence.
    (2) Within 10 calendar days of receipt of a request for expedited 
processing, the Agency will decide whether to grant it and will notify 
the requester of the decision. Once the determination has been made to 
grant expedited processing, the request will be given priority and 
processed as soon as practicable. If a request for expedited processing 
is denied, the Agency will act expeditiously on any appeal of that 
decision.
    (iii) Initial determination of requests. Within 20 working days 
after receipt of a request by the FOIA Branch, a determination will be 
made whether to comply with such request, and the requester will be 
notified in writing of that determination. In the case of requests made 
for records maintained by the Agency's Office of the Inspector General, 
that determination will be made by the Office of the Inspector General. 
Requesters will be made aware of their right to seek assistance from the 
Agency's FOIA Public Liaison.
    (A) Grants of requests. If the determination is to comply with the 
request, the records will 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 fee schedule provisions of paragraph (d)(2) of 
this section will be provided.
    (B) Denials of requests. If the determination is to deny the request 
in any respect, the requester will be notified in writing of that 
determination. The determination will set forth: The reason(s) for the 
denial; the name and title or position of each person responsible for 
the denial; and an estimate of the volume of records or information 
withheld, in number of pages or in some other reasonable form of 
estimation: However, 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. The determination will also inform the requester 
of the right to seek dispute resolution services from the Agency's FOIA 
Public Liaison or the Office of Government Information Services, as well 
as the right to appeal the adverse determination under the 
administrative appeal provisions of paragraph (c)(2)(v) of this section.
    (C) Adverse determinations may consist of: A determination to 
withhold any requested record in whole or in part; a determination that 
a requested

[[Page 94]]

record does not exist or cannot be located; a determination that what 
has been requested is not a record subject to the FOIA; 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. An adverse determination to 
an administrative appeal by the Chief FOIA Officer will be the final 
action of the Agency. An adverse determination will inform the requester 
of the right to seek dispute resolution services from the Agency's FOIA 
Public Liaison or the Office of Government Information Services, as well 
as the right to appeal the adverse determination under the 
administrative appeal provisions of paragraph (c)(2)(v) of this section.
    (iv) Records containing business information. 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 10 years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period. The Agency will 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 (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 will 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 will be given to a submitter whenever: 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 will 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 will give the 
submitter written notice, which will 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 will be a reasonable time 
subsequent to the notice.

[[Page 95]]

    (F) The notice requirements of paragraphs (c)(2)(iv)(B) and (E) of 
this section will not apply if: The Agency determines that the 
information may 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 
will, 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 will 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 will 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 
will also notify the requester(s). Whenever a submitter files a lawsuit 
seeking to prevent the disclosure of business information, the Agency 
will notify the requester(s).
    (v) Administrative appeals. (A) An appeal from an adverse 
determination made pursuant to paragraph (c)(2)(iii) of this section 
must be filed within 90 calendar days of the service of the notification 
of the adverse determination, in whole or in part. Appeals of adverse 
determinations made by the FOIA Officer or the Office of the Inspector 
General may be filed with the Division of Legal Counsel in Washington, 
DC.
    (B) As provided in paragraph (c)(2)(iii) of this section, an adverse 
determination will notify the requester of the right to appeal the 
adverse determination and will specify where such appeal may be filed. 
Within 20 working days after receipt of an appeal, the Chief FOIA 
Officer will make a determination with respect to such appeal and will 
notify the requester in writing. If the determination is to grant the 
appeal, the responsive records will be made promptly available to the 
requester upon receipt of payment of any charges due in accordance with 
the provisions of paragraph (d)(2) of this section. If the appeal is 
denied, in whole or in part, the requester will be notified of the 
reasons for the decision, the name and title or position of any person 
responsible for the denial, and the provisions for judicial review of 
that determination under the provisions of 5 U.S.C. Section 552(4)(B).
    (C) Before seeking judicial review of an adverse determination, a 
requester must first submit a timely administrative appeal.
    (D) Even if no FOIA appeal is filed, the Chief FOIA Officer may, 
without regard to the time limit for filing of an appeal, initiate 
reconsideration of an adverse determination by issuing written notice to 
the requester. In such event, the time limit for making the 
determination will commence with the issuance of such notification.
    (vi) Extension of time to respond to requests. In unusual 
circumstances as specified in this paragraph (c)(2)(vi), the Agency may 
extend the time limits prescribed in either paragraph (c)(2)(i) or (iv) 
of this section by written notice to the requester setting forth the 
reasons for such extension and the date on which a determination is 
expected, and notifying the requester of the right to seek dispute 
resolution services from the Office of Government Information Services. 
The extension of time will not exceed 10 working days. As used in this 
paragraph (c)(2)(vi), 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 
other offices in the Agency that are separate from the FOIA Branch;
    (B) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are sought in a 
single request;

[[Page 96]]

    (C)(1) The need for consultation, which will be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or with two or more offices in the 
Agency having a substantial subject matter interest in the request.
    (2) If the request cannot be processed within the time limits 
prescribed above, the Agency will provide the requester with an 
opportunity to limit the request so that it may be processed within the 
10-day extended time limit for response. The requester may also arrange 
an alternative time frame with the Agency for processing the request or 
a modified request. The Agency's FOIA Public Liaison is available to 
assist with any issues that may arise.
    (vii) Preservation of FOIA request files. The Agency will preserve 
files created in response to requests for information under the FOIA and 
files created in responding to administrative appeals under the FOIA 
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 4.2, item 020. Records will not be disposed of 
or destroyed while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.
    (d)(1) Fees. 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 form or format. The Agency will 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 will 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

[[Page 97]]

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 is the 
clearest proof, but the Agency will 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 will not be considered to be for 
a commercial use.
    (viii) Working days, as used in this section, means calendar days 
excepting Saturdays, Sundays, and legal holidays.
    (2) Fee schedule. Requesters will 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 will 
be charged to the requester in the same amount as incurred by the 
Agency. Such costs will include, but not be limited to: Certifying that 
records are true copies; sending records to requesters or receiving 
records from the Federal records storage centers by special methods such 
as express mail; and, where applicable, 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 will not be considered 
to be a request 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 
will be furnished without charge. Requesters must reasonably describe 
the records sought.
    (E) Absent a reasonably based factual showing that a requester may 
be placed in a particular user category, fees will be imposed as 
provided for in the commercial use requester category.
    (iii) Unusual fee circumstances. (A) In no event will 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

[[Page 98]]

may presume that multiple requests of this type made within a 30-day 
period have been made 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) Requests for fee waiver or reduction. 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 will 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 fee waiver, a waiver 
will be granted for those records.
    (v) Failure to pay fees. 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. Section 3717. Where appropriate, other steps permitted by federal 
debt collection statutes, including disclosure to consumer reporting 
agencies, use of collection agencies, and offset, will be used by the 
Agency to encourage payment of amounts overdue.
    (vi) Assumption of financial responsibility for processing requests. 
Each request for records must 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 requester will be notified and 
afforded an opportunity to assume financial liability. In either case, 
the request for records will 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 
will 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 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 determinations will begin to run only after the 
Agency has received the fee payments required in paragraph (d)(2) of 
this section.
    (vii) Fees may be charged even if no documents are provided. 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.

[[Page 99]]



Sec.  102.118  Present and former Board employees prohibited from 
producing documents and testifying; production of witnesses' statements
after direct testimony.

    (a) Prohibition on producing files and documents. Except as provided 
in Sec.  102.117 respecting requests cognizable under the Freedom of 
Information Act, no present or former employee or specially designated 
agent of the Agency will 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 Board or 
is in Washington, DC, and in the control of the General Counsel. A 
request that such consent be granted must be in writing and must 
identify the documents to be produced, the nature of the pending 
proceeding, and the purpose to be served by the production of the 
documents.
    (b) Prohibition on testifying. No present or former employee or 
specially designated agent of the Agency will testify on 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 that person's official 
capacity or with respect to the contents of any files, documents, 
reports, memoranda, or records of the Board or of 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 must be in writing and must identify the 
person whose testimony is desired, the nature of the pending proceeding, 
and the purpose to be served by the testimony of the official.
    (c) Motion to quash subpoena. 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 above, has been served on 
any present or former employee or specially designated agent of the 
Agency, that person will, unless 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 otherwise, to have such subpoena 
invalidated on the ground that the evidence sought is privileged against 
disclosure by this Rule.
    (d) Prohibition on disclosure of personal information. No present or 
former employee or specially designated agent of the Agency will, 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).
    (e) Production of statement for cross-examination. Notwithstanding 
the prohibitions of paragraphs (a) and (b) 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

[[Page 100]]

Act, the Administrative Law Judge must, upon motion of the Respondent, 
order the production of any statement, as defined paragraph (g) of this 
section, of such witness in the possession of the General Counsel which 
relates to the subject matter as to which the witness has testified.
    (1) If the entire contents of any such statement relate to the 
subject matter of the testimony of the witness, the Administrative Law 
Judge must order the statement to be delivered directly to the 
respondent for 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 will order the General Counsel to deliver the statement for the 
inspection of the Administrative Law Judge in camera. Upon delivery, the 
Administrative Law Judge will excise the portions of such statement 
which do not relate to the subject matter of the testimony of the 
witness except that the Administrative Law Judge has discretion to 
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 the material excised, the Administrative 
Law Judge will then direct delivery of the statement to the Respondent 
for use on cross-examination. If any portion of the statement is 
withheld and the Respondent objects to the withholding, the General 
Counsel will preserve the entire text of the statement, and, if the 
Respondent files exceptions with the Board based upon such withholding, 
make the entire text 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 
statement, or portion thereof as the Administrative Law Judge may 
direct, the Administrative Law Judge will strike from the record the 
testimony of the witness.
    (f) Production of statement in postelection hearings. The provisions 
of paragraph (e) of this section will 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 defined in 
paragraph (g) of this section, of the 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 (e) of this section will be exercised by the Hearing 
Officer presiding.
    (g) Definition of statement. The term statement as used in this 
section means:
    (1) A written statement made by the witness and signed or otherwise 
adopted or approved by the witness; 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 the witness to an agent of the party obligated to 
produce the statement and recorded contemporaneously with the making of 
the oral statement.

[82 FR 11768, Feb. 24, 2017, as amended at 82 FR 43699, Sept. 19, 2017]



Sec.  102.119  Privacy Act Regulations: Notification as to whether a
system of records contains records pertaining to requesting individuals;
requests for 
          access to records, amendment of such records, or accounting of 
          disclosures; time limits for response; appeal from denial of 
          requests; fees for document duplication; files and records 
          exempted from certain Privacy Act requirements.

    (a)(1) An individual will be informed whether a system of records 
maintained by the Agency contains a record pertaining to such 
individual. An inquiry may be made in writing or in person during normal 
business hours to the official of the 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 Government-wide 
Personnel Records published by the Office of Personnel Management, or in 
a Notice of Government-wide Systems of Records published by the 
Department of Labor. Copies of such notices, and

[[Page 101]]

assistance in preparing an inquiry, may be obtained from any Regional 
Office of the Board or at the Board offices in Washington, DC. The 
inquiry may contain sufficient information, as defined in the notice, to 
identify the record.
    (2) Reasonable verification of the identity of the inquirer, as 
described in paragraph (e) of this section, will be required to assure 
that information is disclosed to the proper person. The Agency will 
acknowledge the inquiry in writing within 10 days (excluding Saturdays, 
Sundays, and legal public holidays) and, wherever practicable, the 
acknowledgment will supply the information requested. If, for good cause 
shown, the Agency cannot supply the information within 10 days, the 
inquirer will 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 
an individual, the inquirer will 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 (f) of 
this section. The provisions of this paragraph (a)(2) do not apply to 
the extent that requested information from the relevant system of 
records has been exempted from this Privacy Act requirement.
    (b)(1) 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 the 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. 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 in Washington, DC. 
Reasonable verification of the identity of the requester, as described 
in paragraph (e) of this section, will 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 will be 
acknowledged in writing by the Agency within 10 days of receipt 
(excluding Saturdays, Sundays, and legal public holidays) and, wherever 
practicable, the acknowledgment will 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 of 
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.
    (2) 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 (b) is denied, the notice informing the individual of the 
denial will set forth the reasons therefor and advise the individual of 
the right to obtain a review of that determination under the provisions 
of paragraph (f) of this section. The provisions of this paragraph 
(b)(2) do not apply to the extent that requested information from the 
relevant system of records has been exempted from this Privacy Act 
requirement.
    (c) 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 (e) 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 will

[[Page 102]]

be assessed at the rate of 12 cents for each sheet of duplication.
    (d) An individual may request amendment of a record pertaining to 
such individual in a system of records maintained by the 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 in Washington, DC. The requester must provide verification of 
identity as described in paragraph (e) of this section, and the request 
must set forth the specific amendment requested and the reason for the 
requested amendment. The Agency will acknowledge in writing receipt of 
the request within 10 days of receipt (excluding Saturdays, Sundays, and 
legal public holidays) and, whenever practicable, the acknowledgement 
will 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 will 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 will be so notified in writing and the record will 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 must be advised of 
the amendment and its substance. If it is determined that the request 
may not be granted, the requester will 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 (f) of this section. The provisions of this paragraph (d) do 
not apply to the extent that requested information from the relevant 
system of records has been exempted from this Privacy Act requirement.
    (e) Verification of the identification of individuals required under 
paragraphs (a), (b), (c), and (d) of this section to assure that records 
are disclosed to the proper person will 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 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 must 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.
    (f)(1) Review may be obtained with respect to:
    (i) A refusal, under paragraph (a) or (g) of this section, to inform 
an individual if a system of records contains a record concerning that 
individual;
    (ii) A refusal, under paragraph (b) or (g) of this section, to grant 
access to a record or an accounting of disclosure from such a record; or
    (iii) A refusal, under paragraph (d) of this section, to amend a 
record.
    (iv) The request for review may 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 Office of Congressional and Public Affairs, or the 
Division of Administrative Law Judges. Consistent with the provisions of 
Section 3(d) of the Act, and the delegation of authority from the Board 
to the General Counsel, the request may be made to the General Counsel 
if the system of records is maintained by an office of the Agency other 
than those

[[Page 103]]

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 will 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, extends 
such 30-day period.
    (2) If, upon review of a refusal under paragraph (a) or (g) of this 
section, the reviewing officer determines that the individual may be 
informed of whether a system of records contains a record pertaining to 
that individual, such information will be promptly provided. If the 
reviewing officer determines that the information was properly denied, 
the individual will be so informed in writing with a brief statement of 
the reasons therefor.
    (3) If, upon review of a refusal under paragraph (b) or (g) of this 
section, the reviewing officer determines that access to a record or to 
an accounting of disclosures may be granted, the requester will be so 
notified and the record or accounting will be promptly made available to 
the requester. If the reviewing officer determines that the request for 
access was properly denied, the individual will be so informed in 
writing with a brief statement of the reasons 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) of this 
section, the reviewing official grants a request to amend, the requester 
will be so notified, the record will 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 will be advised of the amendment and its 
substance. If the reviewing officer determines that the denial of a 
request for amendment may be sustained, the Agency will 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.
    (g) To the extent that portions of systems of records described in 
notices of Government-wide 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 the 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 will be in accordance with the provisions of 5 CFR 297.101 
through 297.501, as promulgated by the Office of Personnel Management. 
To the extent that portions of systems of records described in notices 
of Government-wide systems of records published by the Department of 
Labor are identified by those notices as being subject to the management 
of an officer of the Agency, or an officer of the 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 will be 
in accordance with the provisions of this section. 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 (f) of this 
section.
    (h) 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

[[Page 104]]

contains Investigative Files will 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), from 29 CFR 102.117(c) 
and (d), and from 29 CFR 102.119(a), (b), (c), (d), (e), and (f), 
insofar as the system contains investigatory material compiled for 
criminal law enforcement purposes.
    (i) 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 must be exempted 
from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f), 
from 29 CFR 102.117(c) and (d), and from 29 CFR 102.119(a), (b), (c), 
(d), (e), and (f), insofar as the system contains investigatory material 
compiled for law enforcement purposes not within the scope of the 
exemption at 29 CFR 102.119(h).
    (j) Privacy Act exemptions contained in paragraphs (h) and (i) 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 that individual's 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 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 the individual, 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 the 
individual's 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

[[Page 105]]

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 scope of the 
investigator's jurisdiction. In the interest of effective law 
enforcement, OIG investigators may 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 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 the individual's request, if the system of records 
contains a record pertaining to the individual, 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 the individual's 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,

[[Page 106]]

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 that 
establish procedures whereby an individual can be notified in response 
to the individual's request if any system of records named by the 
individual contains a record pertaining to the individual. The 
application of this provision could impede or compromise an 
investigation or 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 the individual's 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.
    (k) Pursuant to 5 U.S.C. 552a(k)(2), the system of records 
maintained by the NLRB containing Agency Disciplinary Case Files 
(Nonemployees) are exempt 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).
    (l) The Privacy Act exemption set forth in paragraph (k) 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 (j)(1), (3), (4), (7), (8), and (11) of this section.
    (m) Pursuant to 5 U.S.C. 552a(k)(2), investigatory material compiled 
for law enforcement purposes that is contained in the Next Generation 
Case Management System (NxGen) (NLRB-33), are exempt from the provisions 
of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),

[[Page 107]]

(e)(4)(H), (e)(4)(I), and (f). This information was formerly contained 
within the following legacy systems, which remain accessible and which 
also are exempt pursuant to 5 U.S.C. 552a(k)(2), as follows:
    (1) The following three legacy systems of records are exempt in 
their entirety from provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), and (f), because the systems contain 
investigatory material compiled for law enforcement purposes, other than 
material within the scope of 5 U.S.C. 552a(j)(2): Case Activity Tracking 
System (CATS) and Associated Regional Office Files (NLRB-25), Regional 
Advice and Injunction Litigation System (RAILS) and Associated 
Headquarters Files (NLRB-28), and Appeals Case Tracking System (ACTS) 
and Associated Headquarters Files (NLRB-30).
    (2) Pursuant to 5 U.S.C. 552a(k)(2), limited categories of 
information from the following four systems of records are exempt from 
the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), (e)(4)(I), and (f), insofar as the systems contain 
investigatory material compiled for law enforcement purposes, other than 
material within the scope of 5 U.S.C. 552a(j)(2):
    (i) The legacy Judicial Case Management Systems-Pending Case List 
(JCMS-PCL) and Associated Headquarters Files (NLRB-21)--information 
relating to requests to file injunctions under 29 U.S.C. 160(j), 
requests to initiate federal court contempt proceedings, certain 
requests that the Board initiate litigation or intervene in non-Agency 
litigation, and any other investigatory material compiled for law 
enforcement purposes;
    (ii) The legacy Solicitor's System (SOL) and Associated Headquarters 
Files (NLRB-23)--information relating to requests to file injunctions 
under 29 U.S.C. 160(j), requests to initiate federal court contempt 
proceedings, certain requests that the Board initiate litigation or 
intervene in non-Agency litigation, and any other investigatory material 
compiled for law enforcement purposes;
    (iii) The legacy Special Litigation Case Tracking System (SPLIT) and 
Associated Headquarters Files (NLRB-27)--information relating to 
investigative subpoena enforcement cases, injunction and mandamus 
actions regarding Agency cases under investigation, bankruptcy case 
information in matters under investigation, Freedom of Information Act 
cases involving investigatory records, certain requests that the Board 
initiate litigation or intervene in non-Agency litigation, and any other 
investigatory material compiled for law enforcement purposes; and
    (iv) The Freedom of Information Act Tracking System (FTS) and 
Associated Agency Files (NLRB-32)--information requested under the 
Freedom of Information Act, 5 U.S.C. 552, that relates to the Agency's 
investigation of unfair labor practice and representation cases or other 
proceedings described in paragraphs (m)(1) and (2) of this section.
    (n) The reasons for exemption under 5 U.S.C. 552a(k)(2) are as 
follows:
    (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 such individual's request. These accountings must state the 
date, nature, and purpose of each disclosure of a record, and the name 
and address of the recipient. Providing such an accounting of 
investigatory information to a party in an unfair labor practice or 
representation matter under investigation could inform that individual 
of the precise scope of an Agency investigation, or the existence or 
scope of another law enforcement investigation. Accordingly, this 
Privacy Act requirement could seriously impede or compromise either the 
Agency's investigation, or another law enforcement investigation, by 
causing the improper influencing of witnesses, retaliation against 
witnesses, destruction of evidence, or fabrication of testimony.
    (2) 5 U.S.C. 552a(d) requires an agency to permit an individual to 
gain access to records pertaining to such individual, to request 
amendment to such records, to request review of an agency decision not 
to amend such records, and, where the Agency refuses to amend records, 
to submit a statement of disagreement to be included with the records. 
Such disclosure of investigatory information could seriously impede or 
compromise the Agency's investigation by revealing the identity of

[[Page 108]]

confidential sources or confidential business information, or causing 
the improper influencing of witnesses, retaliation against witnesses, 
destruction of evidence, fabrication of testimony, or unwarranted 
invasion of the privacy of others. Amendment of the records could 
interfere with ongoing law enforcement proceedings and impose an undue 
administrative burden by requiring investigations to be continuously 
reinvestigated.
    (3) 5 U.S.C. 552a(e)(1) requires an 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. This requirement could foreclose 
investigators from acquiring or receiving information the relevance and 
necessity of which is not readily apparent and could only be ascertained 
after a complete review and evaluation of all the evidence.
    (4) 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 the individual's request, if the system of records 
contains a record pertaining to the individual, for gaining access to 
such a record, and for contesting its content. Because certain 
information from these systems of records is exempt from subsection (d) 
of the Act concerning access to records, and consequently, from 
subsection (f) of the Act concerning Agency rules governing access, 
these requirements are inapplicable to that information.
    (5) 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 sources of information, to protect against the 
disclosure of investigative techniques and procedures, to avoid threats 
or reprisals against informers by subjects of investigations, and to 
protect against informers refusing to give full information to 
investigators for fear of having their identities as sources revealed.
    (6) 5 U.S.C. 552a(f) requires an agency to promulgate rules for 
notifying individuals of Privacy Act rights granted by subsection (d) of 
the Act concerning access and amendment of records. Because certain 
information from these systems is exempt from subsection (d) of the Act, 
the requirements of subsection (f) of the Act are inapplicable to that 
information.
    (o) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), (5), (6), and (7) of 
the Privacy Act, the system of records maintained by the NLRB containing 
Personnel Security Records 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 may contain:
    (1) Records properly classified pursuant to an Executive Order, 
within the meaning of section 552(b)(1);
    (2) Investigatory material compiled for law enforcement purposes 
other than material within the scope of 5 U.S.C. 552a(j)(2);
    (3) Information maintained in connection with providing protective 
services to the President of the United States or other individuals 
pursuant to section 3056 of title 18 of the U.S. Code;
    (4) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility or qualifications for Federal 
civilian employment and Federal contact or access to classified 
information;
    (5) Testing and examination materials used for a personnel 
investigation for employment or promotion in the Federal service;
    (6) Evaluation materials, compiled during the course of a personnel 
investigation, that are used solely to determine potential for promotion 
in the armed services.
    (p) The Privacy Act exemptions contained in paragraph (o) of this 
section are justified for the following reasons:
    (1)(i) 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. 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

[[Page 109]]

not to amend such records, and to contest the information contained in 
such records.
    (ii) Personnel investigations may contain properly classified 
information which pertains to national defense and foreign policy 
obtained from another Federal agency. Application of exemption 5 U.S.C. 
552a(k)(1) is necessary to preclude an individual's access to and 
amendment of such classified information under 5 U.S.C. 552a(d).
    (iii) Personnel investigations may contain investigatory material 
compiled for law enforcement purposes other than material within the 
scope of 5 U.S.C. 552a(j)(2). Application of exemption 5 U.S.C. 
552a(k)(2) is necessary to preclude an individual's access to or 
amendment of such records under 5 U.S.C. 552a(c)(3) and (d).
    (iv) Personnel investigations may also contain information obtained 
from another Federal agency that relates to providing protective 
services to the President of the United States or other individuals 
pursuant to 18 U.S.C. 3056. Application of exemption 5 U.S.C. 552a(k)(3) 
is necessary to preclude an individual's access to and amendment of such 
records under 5 U.S.C. 552a(d).
    (v) Exemption 5 U.S.C. 552a(k)(5) is claimed with respect to the 
requirements of 5 U.S.C. 552a(c)(3) and (d) because this system contains 
investigatory material compiled solely for determining suitability, 
eligibility, and qualifications for Federal employment. To the extent 
that the disclosure of material would reveal the identity of a source 
who furnished information to the Government under an express promise 
that the identity of the source would be held in confidence, or prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence, the applicability of exemption 5 
U.S.C. 552a(k)(5) will be required to honor promises of confidentiality 
should an individual request access to or amendment of the record, or 
access to the accounting of disclosures of the record. Similarly, 
personnel investigations may contain evaluation material used to 
determine potential for promotion in the armed services. Application of 
exemption 5 U.S.C. 552a(k)(7) is necessary to the extent that the 
disclosure of data would compromise the anonymity of a source under an 
express promise that the identity of the source would be held in 
confidence, or, prior to September 27, 1975, under an implied promise 
that the identity of the source would be held in confidence. Both of 
these exemptions are necessary to safeguard the integrity of background 
investigations by minimizing the threat of harm to confidential sources, 
witnesses, and law enforcement personnel. Additionally, these exemptions 
reduce the risks of improper influencing of sources, the destruction of 
evidence, and the fabrication of testimony.
    (vi) All information in this system that meets the criteria 
articulated in exemption 5 U.S.C. 552a(k)(6) is exempt from the 
requirements of 5 U.S.C. 552a(d), relating to access to and amendment of 
records by an individual. This exemption is claimed because portions of 
this system relate to testing or examining materials used solely to 
determine individual qualifications for appointment or promotion to the 
Federal service. Access to or amendment to this information by an 
individual would compromise the objectivity and fairness of the testing 
or examining process.
    (2) 5 U.S.C. 552a(e)(1) requires an 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. This requirement could foreclose 
investigators from acquiring or receiving information the relevance and 
necessity of which is not readily apparent and could only be ascertained 
after a complete review and evaluation of all the evidence. This system 
of records is exempt from this requirement because in the course of 
personnel background investigations, the accuracy of information 
obtained or introduced occasionally may be unclear, or the information 
may not be strictly relevant or necessary to favorably or unfavorably 
adjudicate a specific investigation at a specific point in time. 
However, in the interests of protecting the public trust and national 
security,

[[Page 110]]

it is appropriate to retain all information that may aid in establishing 
patterns in such areas as criminal conduct, alcohol and drug use, 
financial dishonesty, allegiance, foreign preference or influence, and 
psychological conditions, that are relevant to future personnel security 
or suitability determinations.
    (3) 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 Privacy Act, concerning agency 
rules, and subsection (d) of the Privacy 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 
Privacy Act. Although the system would be exempt from these 
requirements, the NLRB has published information concerning its 
notification, access, and contest procedures because, under certain 
circumstances, it may be appropriate for a subject to have access to a 
portion of that individual's records in this system of records.
    (4) 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, the agency has 
published source information in the accompanying notice in broad generic 
terms.
    (5) 5 U.S.C. 552a(f) requires an agency to promulgate rules which 
shall establish procedures whereby an individual can be notified in 
response to a request if any system of records named by the individual 
contains a record pertaining to that individual. The application of this 
provision could compromise the progress of an investigation concerning 
the suitability, eligibility, and fitness for service of applicants for 
Federal employment and impede a prompt assessment of the appropriate 
access to the Agency's facilities. Although this system would be exempt 
from the requirements of subsection (f) of the Privacy Act, the Agency 
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 that individual's records in this system 
of records.
    (q) Pursuant to 5 U.S.C. 552a(k)(1), (2), and (5), the system of 
records maintained by the NLRB containing NLRB iTrak and Banned Entry 
List records 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 may contain:
    (1) Records properly classified pursuant to an Executive order, 
within the meaning of 5 U.S.C. 552(b)(1);
    (2) Investigatory material compiled for law enforcement purposes 
other than material within the scope of 5 U.S.C. 552a(j)(2); and
    (3) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts or access to 
classified information.
    (r) The Privacy Act exemptions contained in paragraph (q) of this 
section are justified for the following reasons:
    (1)(i) 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. 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.
    (ii) iTrak and Banned Entry List records may contain properly 
classified information which pertains to national defense and foreign 
policy obtained

[[Page 111]]

from another Federal agency. Application of exemption (k)(1) is 
necessary to preclude an individual's access to and amendment of such 
classified information under 5 U.S.C. 552a(d), which would pose a risk 
of harm to national defense and foreign policy interests.
    (iii) iTrak and Banned Entry List records may contain investigatory 
material compiled for law enforcement purposes other than material 
within the scope of 5 U.S.C. 552a(j)(2). Application of exemption (k)(2) 
is necessary to preclude an individual's access to or amendment of such 
records under 5 U.S.C. 552a(c)(3) and (d), which would pose a risk of 
harm to law enforcement interests. Specifically, this exemption is 
necessary to safeguard the integrity of law enforcement investigations 
by minimizing the threat of harm to confidential sources, witnesses, and 
law enforcement personnel. Additionally, this exemption reduces the 
risks of improper influencing of sources, the destruction of evidence, 
and the fabrication of testimony.
    (iv) Exemption (k)(5) is claimed with respect to the requirements of 
5 U.S.C. 552a(c)(3) and (d) because this system contains investigatory 
material compiled solely for determining suitability, eligibility, and 
qualifications for Federal employment. To the extent that the disclosure 
of material would reveal the identity of a source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, or, prior to September 27, 
1975, under an implied promise that the identity of the source would be 
held in confidence, the applicability of exemption (k)(5) will be 
required to honor promises of confidentiality should an individual 
request access to or amendment of the record, or access to the 
accounting of disclosures of the record. This exemption is necessary to 
safeguard the integrity of security investigations by minimizing the 
threat of harm to confidential sources, witnesses, and law enforcement 
personnel. Additionally, this exemption reduces the risks of improper 
influencing of sources, the destruction of evidence, and the fabrication 
of testimony.
    (2) 5 U.S.C. 552a(e)(1) requires an 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. This requirement could foreclose 
investigators from acquiring or receiving information the relevance and 
necessity of which is not readily apparent and could only be ascertained 
after a complete review and evaluation of all the evidence. This system 
of records is exempt from this requirement because in the course of 
security investigations, the accuracy of information obtained or 
introduced occasionally may be unclear, or the information may not be 
strictly relevant or necessary to favorably or unfavorably adjudicate a 
specific investigation at a specific point in time. However, in the 
interests of protecting the public trust and national security, it is 
appropriate to retain all information that may aid in establishing 
patterns in such areas as criminal conduct, alcohol and drug use, 
financial dishonesty, allegiance, foreign preference or influence, and 
psychological conditions, that are relevant to future security 
determinations.
    (3) 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 Privacy Act concerning agency rules, 
and subsection (d) of the Privacy Act concerning access to records, 
these requirements are inapplicable to the extent that this system of 
records will be exempt from subsections (d) and (f) of the Act. Although 
the system would be exempt from these requirements, the NLRB has 
published information concerning its notification, access, and contest 
procedures because, under certain circumstances, it may be appropriate 
for a subject to have access to a portion of that individual's records 
in this system of records.
    (4) 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

[[Page 112]]

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, the agency has published 
source information in the accompanying notice in broad generic terms.
    (5) 5 U.S.C. 552a(f) requires an agency to promulgate rules which 
shall establish procedures whereby an individual can be notified in 
response to a request if any system of records named by the individual 
contains a record pertaining to that individual. The application of this 
provision could compromise the progress of a law enforcement 
investigation regarding security and impede a prompt assessment of the 
appropriate access to the Agency's facilities. Although this system 
would be exempt from the requirements of subsection (f) of the Act, the 
Agency 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 that individual's records in this 
system of records.

[82 FR 11754, Feb. 24, 2017, as amended at 84 FR 70425, Dec. 23, 2020; 
85 FR 75855, Nov. 27, 2020]



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



Sec.  102.120  Post-employment 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.

[82 FR 11768, Feb. 24, 2017]



                     Subpart M_Construction of Rules

    Source: 82 FR 11768, Feb. 24, 2017, unless otherwise noted.



Sec.  102.121  Rules to be liberally construed.

    The Rules and Regulations in this part will be liberally construed 
to effectuate the purposes and provisions of the Act.



Sec. Sec.  102.122-102.123  [Reserved]

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 of 
such petition must be filed with the Board and must state the rule or 
regulation proposed to be issued, amended, or repealed, together with a 
statement of grounds in support of such petition.



Sec.  102.125  Action on petition.

    Upon the filing of such petition, the Board will consider the same 
and may 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 will be given of the denial, accompanied by a simple statement of 
the grounds unless the denial is self-explanatory.

Subpart N [Reserved]



                          Subpart O_Amendments

    Source: 82 FR 11778, Feb. 24, 2017, unless otherwise noted.



                    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.

[[Page 113]]



Sec.  102.126  Unauthorized communications.

    (a) No interested person outside this Agency may, 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, 
may:
    (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.

[82 FR 11778, Feb. 24, 2017]



Sec.  102.127  Definitions.

    When used in this subpart:
    (a) The term person outside this Agency, to whom the prohibitions 
apply includes any individual outside this Agency, partnership, 
corporation, association, or other entity, or an agent thereof, and the 
General Counsel or the General Counsel's 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.

[42 FR 13113, Mar. 8, 1977, as amended at 82 FR 11778, Feb. 24, 2017]



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

    Unless otherwise provided by specific order of the Board entered in 
the proceeding, the prohibition of Sec.  102.126 will 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 pre-election 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 the Director's staff who 
review the record and prepare a draft of the decision, and Board Members 
and their staff, 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, the Regional Director and the Director's staff who 
review the record and prepare a draft of the report or decision, and 
Board Members and their staff, from the time the hearing is opened.
    (c) In a postelection 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 no formal hearing is held, 
communications to Board Members and their staff, 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 Board Members and their staff, 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 
Board Members and their staff, 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.

[82 FR 11778, Feb. 24, 2017]

[[Page 114]]



Sec.  102.129  Communications prohibited.

    Except as provided in Sec.  102.130, ex parte communications 
prohibited by Sec.  102.126 include:
    (a) Such communications, when written, if copies are not 
contemporaneously served by the communicator on all parties to the 
proceeding in accordance with the provisions of Sec.  102.5(g).
    (b) Such communications, when oral, unless advance notice is given 
by the communicator to all parties in the proceeding and adequate 
opportunity afforded to them to be present.

[82 FR 11778, Feb. 24, 2017]



Sec.  102.130  Communications not prohibited.

    Ex parte communications prohibited by Sec.  102.126 do not include 
oral or written communications or requests:
    (a) Which relate solely to matters which the Hearing Officer, 
Regional Director, Administrative Law Judge, or Board Member is 
authorized by law or Board Rules to entertain or dispose of on an ex 
parte basis.
    (b) For information solely with respect to the status of a 
proceeding.
    (c) Which all the parties to the proceeding agree, or which the 
responsible official formally rules, may be made on an ex parte basis.
    (d) Proposing settlement or an agreement for disposition of any or 
all issues in the proceeding.
    (e) 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) From the General Counsel to the Board when the General Counsel 
is acting as counsel for the Board.

[82 FR 11778, Feb. 24, 2017]



Sec.  102.131  Solicitation of prohibited communications.

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

[82 FR 11778, Feb. 24, 2017]



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 the communicator that anything may be said in 
writing with copies to all parties. Any Board agent who receives, or who 
makes or knowingly causes to be made, an unauthorized ex parte 
communication will place or cause to be placed on the public record of 
the proceeding:
    (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, will 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 service 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 will 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 will 
constitute a waiver of the power of the Board to impose an appropriate 
penalty under Sec.  102.133.

[82 FR 11778, Feb. 24, 2017]

[[Page 115]]



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, the Administrative Law Judge, or the 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 of issuance, why the 
Board may 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 may 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 paragraph (b), it will 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 may not 
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.

[82 FR 11778, Feb. 24, 2017]



Sec.  102.134  [Reserved]



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



Sec.  102.135  Postal Reorganization Act.

    (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) are governed by the provisions of subparts A, B, C, D, F, G, H, 
J, K, L, M, O, and P of this part, insofar as applicable.
    (b) Inconsistencies. To the extent that any provision of this 
subpart is inconsistent with any provision of title 39, United States 
Code, the provision of title 39 governs.
    (c) Exceptions. For the purposes of this subpart, references in the 
subparts cited in paragraphs (a) and (b) of this section to:
    (1) Employer is deemed to include the Postal Service;
    (2) Act will in the appropriate context mean Postal Reorganization 
Act;
    (3) Section 9(c) of the Act and cited paragraphs will mean 39 U.S.C. 
1203(c) and 1204; and
    (4) Section 9(b) of the Act will mean 39 U.S.C. 1202.

[82 FR 11779, Feb. 24, 2017]



                      Subpart R_Advisory Committees



Sec.  102.136  Establishment and use of advisory committees.

    Advisory committees may from time to time be established or used by 
the Agency in the interest of obtaining advice or recommendations on 
issues of concern to the Agency. The establishment, use, and functioning 
of such committees will be in accordance with the provisions of the 
Federal Advisory Committee Act, 5 U.S.C. App. 2, applicable Rules and 
Regulations.

[82 FR 11779, Feb. 24, 2017]

[[Page 116]]



                         Subpart S_Open Meetings

    Source: 82 FR 11779, Feb. 24, 2017, unless otherwise noted.



Sec.  102.137  Public observation of Board meetings.

    Every portion of every meeting of the Board will be open to public 
observation, except as provided in Sec.  102.139, and Board Members will 
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 means 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 may be closed to public observation in accordance with the 
provisions of this subpart.



Sec.  102.139  Closing of meetings; reasons.

    (a) Except where the Board determines that the public interest 
requires otherwise, meetings, or portions thereof, will 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 
Section 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).



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

    A meeting will be closed to public observation under Sec.  102.139, 
only when a majority of the Board Members 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 will vote at the beginning of the 
meeting, or portion of the meeting, on whether to close such meeting, or 
portion of the meeting, to public observation, and on whether the public 
interest requires that a meeting which may properly be closed may 
nevertheless be open to public observation. A record of such vote, 
reflecting the vote of each Board Member, will 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 will vote on whether to close such meeting, 
or portion of the meeting, to public observation, and on whether there 
is a public interest which requires that a meeting which may properly be 
closed may nevertheless be open to public observation. The vote will be 
taken at a time sufficient to permit inclusion of information concerning 
the open or closed status of the meeting in the public announcement of 
the vote. 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 
30 days after the initial meeting. A record of such vote, reflecting the 
vote of each Board Member, will be kept and made available to the public 
within one day after the vote is taken.

[[Page 117]]

    (c) Whenever any person whose interests may be directly affected by 
deliberations during a meeting, or a portion of a meeting, requests that 
the Board close the meeting, or a portion of the meeting, 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, will vote on whether to close such meeting, 
or a portion of the meeting, for that reason. A record of such vote, 
reflecting the vote of each Board Member participating in the meeting 
will be kept and made available to the public within 1 day after the 
vote is taken.
    (d) After public announcement of a meeting as provided in Sec.  
102.141, a meeting, or portion of a meeting, announced as closed may be 
opened, or a meeting, or portion of a meeting, announced as open may be 
closed, only if a majority of the Board Members 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 Board Member on the change will 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 will certify that in the Solicitor's opinion the 
meeting may properly be closed to public observation. The certification 
will set forth each applicable exemptive provision for such closing. 
Such certification will 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 of meetings closed to public observation 
pursuant to the provisions of Sec.  102.139(a) will be made at the 
earliest practicable time.
    (b) Except for meetings closed to public observation pursuant to the 
provisions of Sec.  102.139(a), the Agency will publicly announce each 
meeting to be held at least 7 days before the scheduled date of the 
meeting. The announcement will 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-day period for advance notice may be shortened only upon a 
determination by a majority of the Board Members 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 will be made at 
the earliest practicable time. A record of the vote to schedule a 
meeting at an earlier date will be kept and made available to the 
public.
    (c) Within 1 day after the vote to close a meeting, or any portion 
of a meeting, pursuant to the provisions of Sec.  102.139(b), the Agency 
will make publicly available a full written explanation of its action 
closing the meeting, or portion of a meeting, 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 will 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 
will be made at the earliest practicable time. A record of the vote to 
change the subject matter of the meeting will be kept and made available 
to the public.
    (e) All announcements or changes issued pursuant to the provisions 
of paragraphs (b) and (d) of this section, or pursuant to provisions of 
Sec.  102.140(d),

[[Page 118]]

will 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 of a meeting closed under the 
provisions of Sec.  102.139, the presiding officer will prepare a 
statement setting forth the time and place of the meeting and the 
persons present, which statement will be retained by the Agency. For 
each such meeting or portion of a meeting there will 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 for 
taking the action, and views on the action taken, documents considered, 
and the Board Members' vote on each roll call vote.
    (b) The Agency will promptly make 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 
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, will, 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 will maintain a complete verbatim copy of the 
transcript, a complete electronic recording, or a complete set of the 
minutes for each meeting or portion of a meeting 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 2 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.

    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 a 
complaint and backpay proceedings under Sec. Sec.  102.52 through 102.59 
pending before the Board on a 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.
    (c) Applicants eligible to receive an award are as follows:
    (1) An individual with a net worth of not more than $2 million;
    (2) A 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 will 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.

[[Page 119]]

    (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 will 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; 82 FR 11781, Feb. 24, 2017]



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.
    (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 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 will be 
considered:
    (1) If the attorney, agent, or expert witness is in practice, that 
person's 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; 
and
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the adversary adjudicative proceeding.
    (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

[[Page 120]]

or other matter was necessary for preparation of the applicant's case.

[46 FR 48087, Sept. 30, 1981, as amended at 82 FR 11782, Feb. 24, 2017]



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 
for rulemaking to increase the maximum rate for attorney or agent fees. 
The petition should specify the rate the petitioner believes may 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).

[82 FR 11782, Feb. 24, 2017]



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 
must identify the applicant and the adversary adjudication for which an 
award is sought. The application must 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 must 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 must 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 must 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 wishes this Agency to consider in determining whether and in 
what amount an award should be made.
    (e) The application must be signed by the applicant or an authorized 
officer or attorney of the applicant. It must 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 must 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 must 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 
may not be withheld from disclosure, it will

[[Page 121]]

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 will 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 will not 
determine 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 must be accompanied by full documentation of the 
fees and expenses for which an award is sought. A separate itemized 
statement must 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; 82 FR 11782, Feb. 24, 2017]



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 must be filed with the Board in Washington, DC, together with a 
certificate of service. The application must be served on the Regional 
Director and on 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 financial information alleged to be 
confidential.
    (b) Upon filing, the application will 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 will 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 will apply.
    (c) Proceedings for the award of fees, but not the time limit of 
this section for filing an application for an award, will 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 will be treated as a final order, 
and an appeal under Sec.  102.19 will be treated as a request for 
reconsideration of that final order.

[82 FR 11783, Feb. 24, 2017]



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 
Administrative Law Judge's decision must be filed with the 
Administrative Law Judge together with proof of service. Copies of all 
documents filed must be served on all parties to the adversary 
adjudication.
    (b) Motions for extensions of time to file motions, documents, or 
pleadings permitted by Sec.  102.150 or by Sec.  102.152

[[Page 122]]

must be filed with the Chief Administrative Law Judge, the Deputy Chief 
Administrative Law Judge, or an Associate Chief Administrative Law 
Judge, as the case may be, no later than 3 days before the due date of 
the document. Notice of the request must be immediately served on all 
other parties and proof of service furnished.

[82 FR 11783, Feb. 24, 2017]



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 will 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 may file a response. Review of an order granting a motion to 
dismiss an application in its entirety may be obtained by filing a 
request with the Board in Washington, DC, pursuant to Sec.  102.27.
    (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 will extend the time for filing an answer for an additional 35 
days.
    (c) The answer must 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 must 
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 must 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 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.

[82 FR 11783, Feb. 24, 2017]



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 must be filed with the application. All such settlements are 
subject to approval by the Board.

[82 FR 11783, Feb. 24, 2017]



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 the General Counsel's own initiative, may order further proceedings, 
including an informal conference, oral argument, additional written 
submission, or an evidentiary hearing. An evidentiary hearing will 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 must specifically identify the disputed 
issues and the evidence sought to be adduced, and must explain why the 
additional proceedings are necessary to resolve the issues.
    (c) An order of the Administrative Law Judge scheduling further 
proceedings will specify the issues to be considered.
    (d) Any evidentiary hearing held pursuant to this section will be 
open to

[[Page 123]]

the public and will be conducted in accordance with Sec. Sec.  102.30 
through 102.43, except Sec. Sec.  102.33, 102.34, and 102.38.
    (e) Rulings of the Administrative Law Judge are reviewable by the 
Board only in accordance with the provisions of Sec.  102.26.

[82 FR 11783, Feb. 24, 2017]



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 through 
102.152, the Administrative Law Judge will prepare a decision, which 
will include written findings and conclusions as necessary to dispose of 
the application. The Administrative Law Judge will transmit the decision 
to the Board. Upon receipt of the decision, the Board will enter an 
order transferring the case to the Board and will serve copies on all 
the parties of the Judge's decision and the Board's order, setting forth 
the date of the transfer.
    (b) The record in a proceeding on an application for an award of 
fees and expenses includes the application and any amendments or 
attachments, the net worth exhibit, the answer and any amendments or 
attachments, any reply to the answer, any comments by other parties, 
motions, rulings, orders, stipulations, written submissions, the 
transcript of any oral argument, the 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.

[82 FR 11783, Feb. 24, 2017]



Sec.  102.154  Exceptions to Administrative Law Judge's decision; briefs;
action of the Board.

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

[82 FR 11783, Feb. 24, 2017]



Sec.  102.155  Payment of award.

    To obtain payment of an award made by the Board, the applicant must 
submit to the Director of the 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.

[82 FR 11783, Feb. 24, 2017]



      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.

[82 FR 11784, Feb. 24, 2017]



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.

[[Page 124]]

    (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 the debtor's 
obligations under a payment agreement with the Agency.

[62 FR 55164, Oct. 23, 1997, as amended at 82 FR 11784, Feb. 24, 2017]



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

[82 FR 11784, Feb. 24, 2017]



Sec.  102.160  Agency responsibilities.

    (a) The Agency will provide appropriate written or other guidance to 
Agency officials in carrying out this subpart, including the issuance of 
guidelines and instructions. The Agency will 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

[[Page 125]]

interfere with or defeat the purposes of the program authorizing the 
payments against which offset is contemplated.
    (d) Administrative offset must be considered by the Agency only 
after attempting to collect a claim under 31 U.S.C. 3711(a).

[62 FR 55164, Oct. 23, 1997, as amended at 82 FR 11784, Feb. 24, 2017]



Sec.  102.161  Notification.

    (a) The Agency must 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 must 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 must send written 
notice to the debtor, informing the debtor, as appropriate, of the:
    (1) Nature and amount of the Board's claim;
    (2) Date by which payment is to be made (which normally may be not 
more than 30 days from the date that the initial notification was mailed 
or hand delivered);
    (3) Agency's intent to collect by administrative offset and of the 
debtor's rights in conjunction with such an offset;
    (4) Agency's intent to collect, as appropriate, interest, penalties, 
administrative costs and attorneys fees;
    (5) Rights of the 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) Debtor's right to administrative appeal or review within the 
Agency concerning the Agency's claim and how such review must be 
obtained;
    (7) Debtor's opportunity to enter into a written agreement with the 
Agency to repay the debt; and
    (8) Date on which, or after which, an administrative offset will 
begin.

[82 FR 11784, Feb. 24, 2017]



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 must 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 the debtor. The Agency may deem a 
repayment plan to be abrogated if the debtor, after the repayment plan 
is signed, fails to comply with the terms of the plan.
    (b) The Agency has discretion and may exercise sound judgment in 
determining whether to accept a repayment agreement in lieu of 
administrative offset.

[82 FR 11785, Feb. 24, 2017]



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.

[[Page 126]]

    (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 will preclude the Agency from sua sponte 
reviewing the obligation of the debtor, including 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.

[62 FR 55164, Oct. 23, 1997, as amended at 82 FR 11785, Feb. 24, 2017]



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.



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 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 the debtor may otherwise be entitled.

[82 FR 11785, Feb. 24, 2017]



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.

[[Page 127]]

    (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.

[62 FR 55166, Oct. 23, 1997, as amended at 82 FR 11785, Feb. 24, 2017]



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; and
    (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 the 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 the 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 the 
IRS in accordance with the Memorandum of Understanding.

[62 FR 55166, Oct. 23, 1997, as amended at 82 FR 11785, Feb. 24, 2017]



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.



Sec.  102.173  Relation to other collection efforts.

    (a) Tax refund offset is intended to be an administrative collection 
remedy to be used 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.

[62 FR 55166, Oct. 23, 1997, as amended at 82 FR 11785, Feb. 24, 2017]



Sec.  102.174  Debtor notification.

    (a) The Agency must send appropriate written demand to the debtor in 
terms which inform the debtor of the consequences of failure to repay 
debts or claims owed to the Board.
    (b) Before the Agency refers a debt to the IRS for tax refund 
offset, it will make a reasonable attempt to notify the debtor that:
    (1) The debt is past-due;

[[Page 128]]

    (2) Unless the debt is repaid or a satisfactory repayment agreement 
is established within 60 days thereafter, the debt will be referred to 
the 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.

[62 FR 55166, Oct. 23, 1997, as amended at 82 FR 11785, Feb. 24, 2017]



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.

[82 FR 11785, Feb. 24, 2017]



Sec.  102.176  [Reserved]



       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 must conform to the standards of ethical and 
professional conduct required of practitioners before the 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 may 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 has 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 may, 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, may be grounds for discipline. Such misconduct of an aggravated 
character may 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, 
will be handled in accordance with the following procedures:
    (1) Allegations that an attorney or party representative has engaged 
in

[[Page 129]]

misconduct may be brought to the attention of the Investigating Officer 
by any person. The Investigating Officer, for purposes of this paragraph 
(e)(1), is the head of the Division of Operations-Management, or 
designee.
    (2) The Investigating Officer or designee will conduct such 
investigation as is deemed appropriate and will have the usual powers of 
investigation provided in Section 11 of the Act. Following the 
investigation, the Investigating Officer will make a recommendation to 
the General Counsel, who will make the determination whether to 
institute disciplinary proceedings against the attorney or party 
representative. The General Counsel's authority to make this 
determination is not 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 will be 
notified of the determination, which is final.
    (3) If the General Counsel decides to institute disciplinary 
proceedings against the attorney or party representative, the General 
Counsel or designee will serve the respondent with a complaint which 
will 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. The complaint will 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 must 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 will be deemed admitted.
    (5) Sections 102.24 through 102.51, rules applicable to unfair labor 
practice proceedings, apply to disciplinary proceedings under this 
section to the extent that they are not contrary to the provisions of 
this section.
    (6) The hearing will be conducted at a reasonable time, date, and 
place. In setting the hearing date, the Administrative Law Judge will 
give due regard to the Respondent's need for time to prepare an adequate 
defense and the need of the Agency and the Respondent for an expeditious 
resolution of the allegations.
    (7) The hearing will 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 will be given notice of the scheduled hearing. Any such 
person will not be a party to the disciplinary proceeding, however, and 
will 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, 
is 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

[[Page 130]]

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.

[82 FR 11785, Feb. 24, 2017]



       Subpart X_Special Procedures When the Board Lacks a Quorum

    Source: 76 FR 77700, Dec. 14, 2011, unless otherwise noted.



Sec.  102.178  Normal operations should continue.

    The policy of the National Labor Relations Board is that during any 
period when the Board lacks a quorum normal Agency operations should 
continue to the greatest extent permitted by law.



Sec.  102.179  Motions for default judgment, summary judgment, or 
dismissal referred to Chief Administrative Law Judge.

    During any period when the Board lacks a quorum, all motions for 
default judgment, summary judgment, or dismissal filed or pending 
pursuant to Sec.  102.50 will be referred to the Chief Administrative 
Law Judge in Washington, DC, for ruling. Such rulings by the Chief 
Administrative Law Judge, and orders in connection therewith, may not be 
appealed directly to the Board, but will 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.

[82 FR 11786, Feb. 24, 2017]



Sec.  102.180  Requests for special permission to appeal referred to
Chief Administrative Law Judge.

    During any period when the Board lacks a quorum, any request for 
special permission to appeal filed or pending pursuant to Sec.  102.26 
will be referred to the Chief Administrative Law Judge in Washington, 
DC, for ruling. Such rulings by the Chief Administrative Law Judge, and 
orders in connection therewith, may not be appealed directly to the 
Board, but will 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.

[82 FR 11786, Feb. 24, 2017]



Sec.  102.181  Administrative and procedural requests referred to 
Executive Secretary.

    During any period when the Board lacks a quorum, administrative and 
procedural requests that would normally be filed with the Office of the 
Executive Secretary for decision by the Board prior to the filing of a 
request for review under Sec.  102.67, or exceptions under Sec. Sec.  
102.46 and 102.69, will be referred to the Executive Secretary for 
ruling. Rulings by the Executive Secretary, and orders in connection 
therewith, may not be appealed directly to the Board, but will be 
considered by the Board if such matters are raised by a party in its 
request for review or exceptions.

[82 FR 11786, Feb. 24, 2017]



Sec.  102.182  Representation cases should be processed to certification.

    During any period when the Board lacks a quorum, the second proviso 
of Sec.  102.67(b) regarding the automatic impounding of ballots will be 
suspended. To the extent practicable, all representation cases may 
continue to be processed and the appropriate certification should be 
issued by the Regional Director notwithstanding the pendency of a 
request for review, subject to revision or revocation by the Board 
pursuant to a request for review filed in accordance with this subpart.

[82 FR 11786, Feb. 24, 2017]

[[Page 131]]



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 Election procedures and blocking charges.
103.21 Processing of petitions filed after voluntary recognition.
103.22 Proof of majority-based bargaining relationship between employer 
          and labor organization in the construction industry.

                 Subpart C_Appropriate Bargaining Units

103.30 Appropriate bargaining units in the health care industry.

                        Subpart D_Joint Employers

103.40 Joint employers.

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  Election procedures and blocking charges.

    (a) Whenever any party to a representation proceeding files an 
unfair labor practice charge together with a request that the charge 
block the election process, or whenever any party to a representation 
proceeding requests that its previously filed unfair labor practice 
charge block the election process, the party shall simultaneously file, 
but not serve on any other party, a written offer of proof in support of 
the charge. The offer of proof shall provide the names of the witnesses 
who will testify in support of the charge and a summary of each 
witness's anticipated testimony. The party seeking to block the election 
process shall also promptly make available to the regional director the 
witnesses identified in its offer of proof.
    (b) If charges are filed alleging violations other than those 
described in paragraph (c) of this section, the ballots will be promptly 
opened and counted at the conclusion of the election.
    (c) If charges are filed that allege violations of section 8(a)(1) 
and 8(a)(2) or section 8(b)(1)(A) of the Act and that challenge the 
circumstances surrounding the petition or the showing of interest 
submitted in support of the petition, or a charge is filed that alleges 
an employer has dominated a union in violation of section 8(a)(2) and 
seeks to disestablish a bargaining relationship, the regional director 
shall impound the ballots for up to 60 days from the conclusion of the 
election if the charge has not been withdrawn or dismissed prior to the 
conclusion of the election. If a complaint issues with respect to the

[[Page 132]]

charge at any point prior to expiration of that 60-day post-election 
period, then the ballots shall continue to be impounded until there is a 
final determination regarding the charge and its effect, if any, on the 
election petition. If the charge is withdrawn or dismissed at any time 
during that 60-day period, or if the 60-day period ends without a 
complaint issuing, then the ballots shall be promptly opened and 
counted. The 60-day period will not be extended, even if more than one 
unfair labor practice charge is filed serially.
    (d) For all charges described in paragraphs (b) or (c) of this 
section, the certification of results (including, where appropriate, a 
certification of representative) shall not issue until there is a final 
disposition of the charge and a determination of its effect, if any, on 
the election petition.

[85 FR 18399, Apr. 1, 2020]



Sec.  103.21  Processing of petitions filed after voluntary recognition.

    (a) An employer's voluntary recognition of a labor organization as 
exclusive bargaining representative of an appropriate unit of the 
employer's employees under section 9(a) of the Act, and the first 
collective-bargaining agreement executed by the parties on or after the 
date of such voluntary recognition, will not bar the processing of an 
election petition unless:
    (1) The employer and/or the labor organization notifies the Regional 
Office that recognition has been granted;
    (2) The employer posts, in conspicuous places, including all places 
where notices to employees are customarily posted, a notice of 
recognition (provided by the Regional Office) informing employees that 
recognition has been granted and that they have a right to file a 
petition during a 45-day ``window period'' beginning on the date the 
notice is posted;
    (3) The employer distributes the notice described in paragraph 
(a)(2) of this section electronically to employees in the petitioned-for 
unit, if the employer customarily communicates with its employees 
electronically; and
    (4) 45 days from the posting date pass without a properly supported 
petition being filed.
    (5) The notice described in paragraph (a)(2) of this section shall 
state as follows:

    Federal law gives employees the right to form, join, or assist a 
union and to choose not to engage in these protected activities.
    An employer may lawfully recognize a union based on evidence (such 
as signed authorization cards) indicating that a majority of employees 
in an appropriate bargaining unit desire its representation, without an 
election supervised by the National Labor Relations Board.
    Once an employer recognizes a union as the employees' exclusive 
bargaining representative, the employer has an obligation to bargain 
with the union in good faith in an attempt to reach a collective-
bargaining agreement, and that obligation is not delayed or otherwise 
impacted by this notice.
    The National Labor Relations Board is an agency of the United States 
Government and does not endorse any choice about whether employees 
should keep the recognized union, file a petition to certify the 
recognized union, file a petition to decertify the recognized union, or 
support or oppose a representation petition filed by another union.
    [Employer] on [date] recognized [Union] as the employees' exclusive 
bargaining representative based on evidence indicating that a majority 
of employees in [described bargaining unit] desire its representation.
    All employees, including those who previously signed cards in 
support of [Union], have the right to be represented by a union of their 
choice or by no union at all.
    Within 45 days from the date of this notice, a petition supported by 
30 percent or more of the unit employees may be filed with the National 
Labor Relations Board for a secret-ballot election to determine whether 
or not the unit employees wish to be represented by [Union], or 30 
percent or more of the unit employees can support another union's filing 
of a petition to represent them.
    Any properly supported petition filed within the 45-day window 
period will be processed according to the National Labor Relations 
Board's normal procedures.
    A petition may be filed within the 45-day window period even if 
[Employer] and [Union] have already reached a collective-bargaining 
agreement.
    If no petition is filed within the 45-day window period, the Union's 
status as the unit employees' exclusive bargaining representative will 
be insulated from challenge for a reasonable period of time, and if 
[Employer] and [Union] reach a collective-bargaining agreement during 
that insulated reasonable period, an election cannot be held for the 
duration of that collective-bargaining agreement, up to 3 years.


[[Page 133]]


    (b) This section shall be applicable to an employer's voluntary 
recognition on or after the effective date of this rule.

[85 FR 18399, Apr. 1, 2020]



Sec.  103.22  Proof of majority-based bargaining relationship between
employer and labor organization in the construction industry.

    (a) A voluntary recognition or collective-bargaining agreement 
between an employer primarily engaged in the building and construction 
industry and a labor organization will not bar any election petition 
filed pursuant to section 9(c) or 9(e) of the Act absent positive 
evidence that the union unequivocally demanded recognition as the 
section 9(a) exclusive bargaining representative of employees in an 
appropriate bargaining unit, and that the employer unequivocally 
accepted it as such, based on a contemporaneous showing of support from 
a majority of employees in an appropriate unit. Collective-bargaining 
agreement language, standing alone, will not be sufficient to provide 
the showing of majority support.
    (b) This section shall be applicable to an employer's voluntary 
recognition extended on or after the effective date of this rule and to 
any collective-bargaining agreement entered into on or after the date of 
voluntary recognition extended on or after the effective date of this 
rule.

[85 FR 18400, Apr. 1, 2020]



                 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 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

[[Page 134]]

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 D_Joint Employers

    Source: 85 FR 11235, Feb. 26, 2020, unless otherwise noted.



Sec.  103.40  Joint employers.

    (a) An employer, as defined by Section 2(2) of the National Labor 
Relations Act (the Act), may be considered a joint employer of a 
separate employer's employees only if the two employers share or 
codetermine the employees' essential terms and conditions of employment. 
To establish that an entity shares or codetermines the essential terms 
and conditions of another employer's employees, the entity must possess 
and exercise such substantial direct and immediate control over one or 
more essential terms or conditions of their employment as would warrant 
finding that the entity meaningfully affects matters relating to the 
employment relationship with those employees. Evidence of the entity's 
indirect control over essential terms and conditions of employment of 
another employer's employees, the entity's contractually reserved but 
never exercised authority over the essential terms and conditions of 
employment of another employer's employees, or the entity's control over 
mandatory subjects of bargaining other than the essential terms and 
conditions of employment is probative of joint-employer status, but only 
to the extent it supplements and reinforces evidence of the entity's 
possession or exercise of direct and immediate control over a particular 
essential term and condition of employment. Joint-employer status must 
be determined on the totality of the relevant facts in each particular 
employment setting. The party asserting that an entity is a joint 
employer has the burden of proof.
    (b) ``Essential terms and conditions of employment'' means wages, 
benefits, hours of work, hiring, discharge, discipline, supervision, and 
direction.
    (c) ``Direct and Immediate Control'' means the following with 
respect to each respective essential employment term or condition:
    (1) Wages. An entity exercises direct and immediate control over 
wages if it actually determines the wage rates, salary or other rate of 
pay that is paid to another employer's individual employees or job 
classifications. An entity does not exercise direct and immediate 
control over wages by entering into a cost-plus contract (with or 
without a maximum reimbursable wage rate).
    (2) Benefits. An entity exercises direct and immediate control over 
benefits if it actually determines the fringe benefits to be provided or 
offered to another employer's employees. This would include selecting 
the benefit plans (such as health insurance plans and pension plans) 
and/or level of benefits provided to another employer's employees. An

[[Page 135]]

entity does not exercise direct and immediate control over benefits by 
permitting another employer, under an arm's-length contract, to 
participate in its benefit plans.
    (3) Hours of work. An entity exercises direct and immediate control 
over hours of work if it actually determines work schedules or the work 
hours, including overtime, of another employer's employees. An entity 
does not exercise direct and immediate control over hours of work by 
establishing an enterprise's operating hours or when it needs the 
services provided by another employer.
    (4) Hiring. An entity exercises direct and immediate control over 
hiring if it actually determines which particular employees will be 
hired and which employees will not. An entity does not exercise direct 
and immediate control over hiring by requesting changes in staffing 
levels to accomplish tasks or by setting minimal hiring standards such 
as those required by government regulation.
    (5) Discharge. An entity exercises direct and immediate control over 
discharge if it actually decides to terminate the employment of another 
employer's employee. An entity does not exercise direct and immediate 
control over discharge by bringing misconduct or poor performance to the 
attention of another employer that makes the actual discharge decision, 
by expressing a negative opinion of another employer's employee, by 
refusing to allow another employer's employee to continue performing 
work under a contract, or by setting minimal standards of performance or 
conduct, such as those required by government regulation.
    (6) Discipline. An entity exercises direct and immediate control 
over discipline if it actually decides to suspend or otherwise 
discipline another employer's employee. An entity does not exercise 
direct and immediate control over discipline by bringing misconduct or 
poor performance to the attention of another employer that makes the 
actual disciplinary decision, by expressing a negative opinion of 
another employer's employee, or by refusing to allow another employer's 
employee to access its premises or perform work under a contract.
    (7) Supervision. An entity exercises direct and immediate control 
over supervision by actually instructing another employer's employees 
how to perform their work or by actually issuing employee performance 
appraisals. An entity does not exercise direct and immediate control 
over supervision when its instructions are limited and routine and 
consist primarily of telling another employer's employees what work to 
perform, or where and when to perform the work, but not how to perform 
it.
    (8) Direction. An entity exercises direct and immediate control over 
direction by assigning particular employees their individual work 
schedules, positions, and tasks. An entity does not exercise direct and 
immediate control over direction by setting schedules for completion of 
a project or by describing the work to be accomplished on a project.
    (d) ``Substantial direct and immediate control'' means direct and 
immediate control that has a regular or continuous consequential effect 
on an essential term or condition of employment of another employer's 
employees. Such control is not ``substantial'' if only exercised on a 
sporadic, isolated, or de minimis basis.
    (e) ``Indirect control'' means indirect control over essential terms 
and conditions of employment of another employer's employees but not 
control or influence over setting the objectives, basic ground rules, or 
expectations for another entity's performance under a contract.
    (f) ``Contractually reserved authority over essential terms and 
conditions of employment'' means the authority that an entity reserves 
to itself, under the terms of a contract with another employer, over the 
essential terms and conditions of employment of that other employer's 
employees, but that has never been exercised.

Subpart E [Reserved]

[[Page 136]]



                        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]

                        PARTS 104	199 [RESERVED]

[[Page 137]]



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




  --------------------------------------------------------------------
Part                                                                Page
200-214

[Reserved]

215             Guidelines, section 5333(b), Federal Transit 
                    Law.....................................         139
216-299

[Reserved]

[[Page 139]]

                        PARTS 200	214 [RESERVED]



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 amendments.
215.6 The Model Agreement.
215.7 The Special Warranty.
215.8 Department of Labor contact.

    Authority: Secretary's Order No. 4-2007, 72 FR 26159, May 8, 2007.

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



Sec.  215.1  Purpose.

    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.

[73 FR 47055, Aug. 13, 2008]



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 must be in final form. The Federal Transit Administration will 
provide the Department with the information necessary to enable the 
Department to certify the project.

[60 FR 62969, Dec. 7, 1995, as amended at 73 FR 47055, Aug. 13, 2008]



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 or designated recipient that will pass assistance through to 
subrecipients, the Department will refer and process each subrecipient's 
respective portion of the project in accordance with this section. If a 
state administrative agency or designated recipient has previously 
provided employee protections on behalf of subrecipients in accordance 
with the terms of a negotiated agreement, the referral will be based on 
those terms and conditions.
    (4) The referral procedures set forth in paragraphs (b) through (h) 
of this section are not applicable to the following grants:
    (i) Grants to applicants for the Over-the-Road Bus Accessibility 
Program, and grant applications for the Other Than Urbanized Program; a 
special warranty will be applied to such grants under the procedures in 
Sec.  215.7.
    (ii) Grants to applicants serving populations under 200,000 under 
the Job Access and Reverse Commute Program or grants to capitalize State 
Infrastructure Bank accounts under the State Infrastructure Bank 
Program.
    (iii) Grants involving only capital assistance for replacement of 
equipment and/or facilities of like-kind; these will be certified by the 
Department without referral on the basis of existing agreements or the 
Unified Protective Arrangement as referenced in paragraphs (b)(1) or 
(b)(2) of this section. Where application of the existing protective 
agreement(s) or the Unified Protective Arrangement would not satisfy the 
requirements of the statute in the circumstances presented, the 
Department will make necessary modifications to the existing protections 
to ensure that the requirements of the statute are satisfied.
    (5) The Department will notify labor organizations representing 
potentially

[[Page 140]]

affected transit employees of the certification of grants without 
referral under paragraph (a)(4) of this section and inform them of their 
rights under the applicable protective arrangements.
    (b) Upon receipt from the Federal Transit Administration of an 
application involving affected employees represented by a labor 
organization, the Department will refer a copy of the application and 
proposed terms for certification to that organization and to the 
applicant, and will also provide a copy to subrecipients with unions in 
their service area.
    (1) For applicants with existing protections the Department's 
referral will be based on those protective terms and conditions that are 
appropriate to the grant and are set by:
    (i) A signed negotiated agreement or formal acceptance of the July 
23, 1975 National (Model) Agreement;
    (ii) Agreed-upon terms adopted by a State or local government 
through a resolution or similar instrument;
    (iii)) A determination of protective terms by the Department that 
modifies in whole or in part negotiated or adopted protections; or
    (iv) A protective arrangement that has been modified to include 
provisions that are more protective than the Unified Protective 
Arrangement referred to in paragraph (b)(2) of this section.
    (2) For applicants without protective terms and conditions set by an 
arrangement described in paragraph (b)(1) of this section, the referral 
will be based on the terms and conditions of the Unified Protective 
Arrangement.
    (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

[[Page 141]]

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 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.  215.3(b)(1).
    (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; 73 
FR 47055, Aug. 13, 2008]



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

[[Page 142]]

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.



Sec.  215.5  Processing of amendments.

    (a) Grant modifications in the form of grant amendments will be 
transmitted by the Federal Transit Administration to the Department for 
review. Applications amending a grant for which the Department has 
already certified fair and equitable arrangements to protect the 
interests of transit employees affected by the project, will be 
processed by the Department following one of the two procedures 
described in paragraphs (a)(1) and (2) of this section.
    (1) When an application amends a grant for which the Department has 
previously certified fair and equitable arrangements and the amendment 
makes changes to a project that may necessitate alternative employee 
protections, the Department will conclude that the amendment materially 
amends the existing assistance agreement. The Department will refer and/
or process the labor certification provisions of such an amended grant 
according to procedures specified under Sec. Sec.  215.3 and 215.4, as 
appropriate.
    (2) When an application amends in a manner that is not material a 
grant for which the Department has already certified fair and equitable 
arrangements, the Department will, on its own initiative and without 
referral to the parties, certify the subject grant on the same terms and 
conditions as were certified for the project as originally constituted. 
The Department's processing of these applications will be expedited and 
copies will be forwarded to interested parties.
    (b) Budget Revisions that make minor changes within the scope of the 
existing grant agreement and do not require a Federal Transit 
Administration grant amendment, as set forth in Federal Transit 
Administration guidance, will be covered under the Department's original 
certifications.

[73 FR 47056, Aug. 13, 2008]



Sec.  215.6  The Model Agreement.

    The Model (or National) Agreement mentioned in paragraphs (b)(1)(i) 
and (b)(2) of Sec.  215.3 refers to the agreement executed on July 23, 
1975 by representatives of the American Public Transit Association (now 
known as the American Public Transportation 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).

[60 FR 62969, Dec. 7, 1995, as amended at 73 FR 47056, Aug. 13, 2008]



Sec.  215.7  The Special Warranty.

    (a) The Special Warranty mentioned in paragraph (b)(2) of Sec.  
215.3 refers to the protective arrangements developed for application to 
the Other Than Urbanized program. 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). The Special Warranty Arrangement 
applicable to OTRB and Other Than Urbanized grants will be derived from 
the terms and conditions of the May 1979 Special Section 13(c) Warranty, 
and the Department's subsequent experience under 49 U.S.C. 5333(b). From 
time to time, the Department may update this Special Warranty 
Arrangement to reflect developments in the employee protection program.

[[Page 143]]

    (b) The requirements of 49 U.S.C. 5333(b) for OTRB and ``Other Than 
Urbanized'' grants are satisfied through application of a Special 
Warranty Arrangement certified by the Department of Labor; a copy of the 
current arrangement will be included on the OLMS Web site.
    (c) The Federal Transit Administration will include the current 
version of the Special Warranty Arrangement, through reference in its 
Master Agreement, in each OTRB and Other Than Urbanized grant of 
assistance under the statute.
    (1) The Federal Transit Administration will notify the Department 
that it is funding an OTRB or Other Than Urbanized grant by transmitting 
to the Department an information copy of each grant application upon 
approval of the grant.
    (i) Each grant of assistance for an Other Than Urbanized program 
will contain a labor section identifying labor organizations 
representing transit employees of each subrecipient, the labor 
organizations representing employees of other transit providers in the 
service area, and a list of those transit providers. A sample format is 
posted on the OLMS Web site to facilitate the inclusion of this 
information in the grant application.
    (ii) OTRB grants of assistance will contain a labor section 
identifying labor organizations representing employees of the recipient.
    (2) The Department will notify labor organizations representing 
potentially affected transit employees of the approval of Other Than 
Urbanized and OTRB grants and inform them of their rights under the 
Special Warranty Arrangement.

[60 FR 62969, Dec. 7, 1995, as amended at 73 FR 47056, Aug. 13, 2008]



Sec.  215.8  Department of Labor contact.

    Questions concerning the subject matter covered by this part should 
be addressed to Chief, Division of Statutory Programs, U.S. Department 
of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; phone 
number 202-693-0126 or e-mailed to [email protected].

[64 FR 40995, July 28, 1999, as amended at 73 FR 47057, Aug. 13, 2008]

                        PARTS 216	299 [RESERVED]

[[Page 145]]



             CHAPTER III--NATIONAL RAILROAD ADJUSTMENT BOARD




  --------------------------------------------------------------------
Part                                                                Page
300

[Reserved]

301             Rules of procedure..........................         147
302-399

[Reserved]

[[Page 147]]

                           PART 300 [RESERVED]



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 148]]



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]

                        PARTS 302	399 [RESERVED]

[[Page 149]]



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




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

                SUBCHAPTER A--LABOR-MANAGEMENT STANDARDS
Part                                                                Page
400

[Reserved]

401             Meaning of terms used in this subchapter....         151
402             Labor organization information reports......         153
403             Labor organization annual financial reports.         156
404             Labor organization officer and employee 
                    reports.................................         160
405             Employer reports............................         162
406             Reporting by labor relations consultants and 
                    other persons, certain agreements with 
                    employers...............................         164
408             Labor organization trusteeship reports......         167
409             Reports by surety companies.................         169
417             Procedure for removal of local labor 
                    organization officers...................         170
451             Labor organizations as defined in the Labor-
                    Management Reporting and Disclosure Act 
                    of 1959.................................         176
452             General statement concerning the election 
                    provisions of the Labor-Management 
                    Reporting and Disclosure Act of 1959....         181
453             General statement concerning the bonding 
                    requirements of the Labor-Management 
                    Reporting and Disclosure Act of 1959....         213
                   SUBCHAPTER B--STANDARDS OF CONDUCT
457             General.....................................         224
458             Standards of conduct........................         226

[[Page 150]]

459             Miscellaneous...............................         240
 SUBCHAPTER C--EMPLOYEE RIGHTS CONCERNING PAYMENT OF UNION DUES OR FEES
470

[Reserved]

 SUBCHAPTER D--NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS
471             Obligations of Federal contractors and 
                    subcontractors; notification of employee 
                    rights under Federal labor laws.........         242
472-499

[Reserved]

[[Page 151]]



                 SUBCHAPTER A_LABOR-MANAGEMENT STANDARDS



                           PART 400 [RESERVED]



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 Director.

    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. 03-2012, 
77 FR 69376, November 16, 2012; 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.

[[Page 152]]



Sec.  401.7  Labor dispute.

    Labor dispute includes any controversy concerning terms, tenure, or 
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 153]]

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, United States 
Department of Labor.

[62 FR 6092, Feb. 10, 1997, as amended at 78 FR 8024, Feb. 5, 2013]



Sec.  401.19  Director.

    ``Director'' means the Director of the Office of Labor-Management 
Standards, head of the Office of Labor-Management Standards.

[78 FR 8024, Feb. 5, 2013]



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. 03-2012, 77 FR 69376, November 16, 
2012.

    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 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; 78 
FR 8024, Feb. 5, 2013]



Sec.  402.3  Filing of initial reports.

    (a) Every labor organization shall file with the Office of Labor-
Management Standards the report and (subject to

[[Page 154]]

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 labor organization at the time 
of its

[[Page 155]]

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 who is a member in good standing of

[[Page 156]]

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 1245-0003.

[59 FR 15115, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998; 
78 FR 8024, Feb. 5, 2013]



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. 201, 207, 208, 301, 73 Stat. 524, 529, 530 (29 
U.S.C. 431, 437, 438, 461); Secretary's Order No. 03-2012, 77 FR 69376, 
November 16, 2012.

    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 Secretary under the provisions of this 
part, the information required by section 201(b) of the Act and found by 
the 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 157]]

organization which has assumed trusteeship over such 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; 71 FR 57737, Sept. 29, 2006; 73 FR 57449, Oct. 
2, 2008; 75 FR 74959, Dec. 1, 2010; 78 FR 8024, Feb. 5, 2013; 85 FR 
13441, Mar. 6, 2020; 86 FR 74371, Dec. 30, 2021]



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 $250,000 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 a statement filed electronically, 
through the electronic filing system made available on the Office of 
Labor-Management Standards website, covering each local labor 
organization covered by this paragraph (b) and containing the following 
information with respect to each local organization:
    (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

[[Page 158]]

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 simplified 
annual reports filed electronically pursuant to Sec.  403.4(b)(3) 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____________________________________________________________
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; 81 FR 33389, May 26, 2016; 86 FR 74371, Dec. 30, 2021]



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

[[Page 159]]

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.

[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; 71 FR 57737, 
Sept. 29, 2006; 73 FR 57449, Oct. 2, 2008; 75 FR 74959, Dec. 1, 2010; 85 
FR 13442, Mar. 6, 2020; 86 FR 74371, Dec. 30, 2021]



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 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.
    (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; 71 
FR 57737, Sept. 29, 2006; 73 FR 57449, Oct. 2, 2008; 75 FR 74959, Dec. 
1, 2010; 85 FR 13442, Mar. 6, 2020; 86 FR 74371, Dec. 30, 2021]



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

[[Page 160]]

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 1245-0003.

[59 FR 15115, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998; 
78 FR 8024, Feb. 5, 2013]



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 [Reserved]
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. 03-2012, 77 FR 69376, November 16, 
2012.

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



Sec.  404.1  Definitions.

    As used in this part the term:
    (a) Benefit with monetary value means anything of value, tangible or 
intangible, including any interest in personal or real property, gift, 
insurance, retirement, pension, license, copyright, forbearance, bequest 
or other form of inheritance, office, options, agreement for employment 
or property, or property of any kind. For reporting purposes, the 
following are excepted: pension, health, or other benefit payments from 
a trust that are provided pursuant to a written specific agreement 
covering such payments.
    (b) Dealing means to engage in a transaction (bargain, sell, 
purchase, agree, contract) or to in any way traffic or trade, including 
solicitation of business.
    (c) 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.
    (d)(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.
    (e) Income means all income from whatever source derived, including, 
but

[[Page 161]]

not limited to, compensation for services, fees, commissions, wages, 
salaries, interest, rents, royalties, copyrights, licenses, dividends, 
annuities, honorarium, income and interest from insurance and endowment 
contracts, capital gains, discharge of indebtedness, share of 
partnership income, bequests or other forms of inheritance, and gifts, 
prizes or awards.
    (f) Labor organization employee means any individual (other than an 
individual performing exclusively custodial or clerical services) 
employed by a labor organization within the meaning of any law of the 
United States relating to the employment of employees.
    (g) 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. An officer is:
    (1) A person identified as an officer by the constitution and bylaws 
of the labor organization;
    (2) Any person authorized to perform the functions of president, 
vice president, secretary, or treasurer;
    (3) Any person who in fact has executive or policy-making authority 
or responsibility; and
    (4) A member of a group identified as an executive board or a body 
which is vested with functions normally performed by an executive board.
    (h) Minor child means a son, daughter, stepson, or stepdaughter 
under 21 years of age.
    (i) Trust in which a labor organization is interested means 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.

[28 FR 14384, Dec. 27, 1963, as amended at 50 FR 31310, Aug. 1, 1985; 72 
FR 36158, July 2, 2007; 76 FR 66489, Oct. 26, 2011]



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 
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; 78 
FR 8024, Feb. 5, 2013]



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  [Reserved]



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.

[[Page 162]]



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.



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, financial and investment statements, contracts, 
correspondence, and applicable resolutions, in their original electronic 
and paper formats, and any electronic programs by which they are 
maintained, 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.

[72 FR 36159, July 2, 2007]



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 1245-0003.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998; 
78 FR 8024, Feb. 5, 2013]



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. 03-2012, 77 FR 69376, November 16, 
2012.

    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

[[Page 163]]

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 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; 78 
FR 8025, Feb. 5, 2013]



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, as amended at 81 FR 16020, Mar. 24, 2016; 
83 FR 33842, July 18, 2018]



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.

[[Page 164]]



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 
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, as amended at 81 FR 16020, Mar. 24, 2016; 
83 FR 33842, July 18, 2018]



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 1245-0003.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998; 
78 FR 8025, Feb. 5, 2013]



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. 03-2012, 77 FR 69376, November 16, 
2012.

    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

[[Page 165]]

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.
    (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; 81 
FR 16021, Mar. 24, 2016; 83 FR 33842, July 18, 2018]



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

[[Page 166]]

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 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

[[Page 167]]

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.  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 1245-0003.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 46888, Sept. 3, 1998; 
78 FR 8025, Feb. 5, 2013]



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. 03-2012, 77 FR 69376, November 16, 
2012.

    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-

[[Page 168]]

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 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 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.

[86 FR 74371, Dec. 30, 2021]



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

[[Page 169]]

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.  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 1245-0003.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 46888, Sept. 3, 1998; 
78 FR 8025, Feb. 5, 2013]



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. 03-2012, 77 FR 69376, 
November 16, 2012.

    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

[[Page 170]]

section 211 (79 Stat. 888) of the Act that information required to be 
reported cannot be practicably ascertained 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 1245-0003.

[59 FR 15116, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998; 
78 FR 8025, Feb. 5, 2013]



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 Administrative Review 
          Board.
417.15 Decision of the Administrative Review Board.

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 Director's representative.
417.20 Notice of hearing.
417.21 Transcript.
417.22 Vote among members of the labor organization.
417.23 Report to the Director.
417.24 Appeal to the Director.
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. 03-2012, 77 FR 69376, November 16, 2012; 
Secretary's Order No. 01-2020.

    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

[[Page 171]]

local labor organization, the Secretary 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.
    (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 172]]

    (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; 78 FR 8025, Feb. 5, 2013]



 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 Director.
    (2) Upon consideration of the Chief, DOE's recommendations, the 
Director 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; 78 FR 8025, Feb. 5, 2013]



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 173]]

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 
Director, or when he shall have withdrawn from the case upon considering 
himself disqualified, or upon termination of his authority by the 
Director for good cause stated. However, the Administrative Law Judge's 
authority may be reinstated upon referral of some or all the issues by 
the Director for rehearing. This authority will terminate upon 
certification of the rehearing record to the Director.

[29 FR 8264, July 1, 1964, as amended at 78 FR 8025, Feb. 5, 2013]



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 Director 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; 78 
FR 8025, Feb. 5, 2013]



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 174]]

the hearing, or except as the Administrative Law Judge or Director may 
direct by reopening the hearing.

[29 FR 8264, July 1, 1964, as amended at 29 FR 8480, July 7, 1964; 78 FR 
8025, Feb. 5, 2013]



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 Administrative 
Review Board, 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.

[29 FR 8264, July 1, 1964, as amended at 78 FR 8025, Feb. 5, 2013]



Sec.  417.14  Form and time for filing of appeal with the Administrative
Review Board.

    (a) An interested person may appeal from the Administrative Law 
Judge's initial decision by filing written exceptions with the 
Administrative Review Board within 15 days of the issuance of the 
Administrative Law Judge's initial decision (or such additional time as 
the Administrative Review Board may allow), together with supporting 
reasons for such exceptions, in accordance with 29 CFR part 26. Blanket 
appeals shall not be received. Impertinent or scandalous matter may be 
stricken by the Administrative Review Board, 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 Administrative Review 
Board or review of the Administrative Law Judge's initial decision by 
the Administrative Review Board on his own motion, such initial decision 
shall become the decision of the Administrative Review Board.

[29 FR 8264, July 1, 1964, as amended at 78 FR 8025, Feb. 5, 2013; 86 FR 
1785, Jan. 11, 2021]



Sec.  417.15  Decision of the Administrative Review Board.

    Upon appeal filed with the Administrative Review Board pursuant to 
Sec.  417.14, or within its discretion upon its own motion, the complete 
record of the proceedings shall be certified to it; it shall notify all 
interested persons who participated in the proceedings; and it 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 it deems appropriate. Its decision shall become a part of 
the record and shall include a statement of its findings and

[[Page 175]]

conclusions, as well as the reasons or basis therefor, upon all material 
issues.

[86 FR 1785, Jan. 11, 2021]



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 Administrative Review Board 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; 78 
FR 8025, Feb. 5, 2013]



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 Director as provided in section 
402(b) of the Act.

[59 FR 65717, Dec. 21, 1994, as amended at 78 FR 8025, Feb. 5, 2013]



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  Director's representative.

    The Director 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 Director'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 ; 78 
FR 8025, Feb. 5, 2013]



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,

[[Page 176]]

insofar as they are known, and shall inform them of (a) the time, place, 
and 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 Director 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 Director 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; 78 
FR 8025, Feb. 5, 2013]



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 Director.

    Following completion of the hearing and vote, the Director's 
Representative shall file a report with the Director 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.

[29 FR 8264, July 1, 1964, as amended at 78 FR 8025, Feb. 5, 2013]



Sec.  417.24  Appeal to the Director.

    (a) Within 15 days after mailing of the report of the Director's 
Representative, any interested party may appeal the conduct of the 
hearing or vote or both by filing written exceptions with the Director. 
Blanket appeals shall not be received. Impertinent or scandalous matter 
may be stricken by the Director, or an appeal containing such matter or 
lacking in specifications may be dismissed.
    (b) Upon review of the whole record, the Director 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; 78 
FR 8025, Feb. 5, 2013]



Sec.  417.25  Certification of results of vote.

    Upon receipt of the report of the Director's Representative on the 
hearing and vote on removal, the Director shall certify the results of 
the vote to the court as required by section 402(c) of the Act.

[29 FR 8264, July 1, 1964, as amended at 78 FR 8025, Feb. 5, 2013]



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.


[[Page 177]]


    Authority: Secs. 3, 208, 401, 73 Stat. 520, 529, 532 (29 U.S.C. 402, 
438, 481); Secretary's Order No. 03-2012, 77 FR 69376, November 16, 
2012.

    Source: 28 FR 14388, Dec. 27, 1963, unless otherwise noted.



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 Director), 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 Director 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 Director 
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 Director with respect to such problem or 
to constitute an administrative interpretation or practice. 
Interpretations of the Director 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; 78 
FR 8026, Feb. 5, 2013]



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.

[[Page 178]]



Sec.  451.3  Requirements of section 3(i).

    (a) Organizations which deal with employers. (1) The term ``labor 
organization'' includes ``any organization of any 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

[[Page 179]]

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 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 ``labor organizations'' 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

[[Page 180]]

``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 (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

[[Page 181]]

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]



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.

[[Page 182]]

        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.
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.

[[Page 183]]

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.
452.138 Application of other laws.

    Authority: Secs. 401, 402, 73 Stat. 532, 534 (29 U.S.C. 481, 482); 
Secretary's Order No. 03-2012, 77 FR 69376, November 16, 2012.

    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 Director 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 Director 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 Director 
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 Director 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.

[38 FR 18324, July 9, 1973, as amended at 78 FR 8026, Feb. 5, 2013]



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

[[Page 184]]

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 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 Director.

[38 FR 18324, July 9, 1973, as amended at 50 FR 31309, Aug. 1, 1985; 78 
FR 8026, Feb. 5, 2013]



        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

[[Page 185]]

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 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

[[Page 186]]

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 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

[[Page 187]]

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 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

[[Page 188]]

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 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

[[Page 189]]

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 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

[[Page 190]]

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 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

[[Page 191]]

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 unconstitutional 
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 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

[[Page 192]]

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 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

[[Page 193]]

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 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.

[[Page 194]]

    (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 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

[[Page 195]]

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 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.

[[Page 196]]

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.
---------------------------------------------------------------------------



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.

[[Page 197]]



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 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

[[Page 198]]

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.
    (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

[[Page 199]]

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 
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

[[Page 200]]

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).
---------------------------------------------------------------------------



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

[[Page 201]]

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 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,

[[Page 202]]

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. 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

[[Page 203]]

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.



                         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

[[Page 204]]

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.



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

[[Page 205]]

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).



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

[[Page 206]]

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 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).

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

[[Page 207]]



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 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

[[Page 208]]

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 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.

[[Page 209]]



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.



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.

[[Page 210]]

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 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

[[Page 211]]

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.



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

[[Page 212]]

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 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

[[Page 213]]

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 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. 03-2012, 77 FR 69376, November 16, 2012.

    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

[[Page 214]]

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 
Director), 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 
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 
Director 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 Director 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 Director 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 Director 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; 78 
FR 8026, Feb. 5, 2013]

               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

[[Page 215]]

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:

    * * * 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

[[Page 216]]

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 
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

[[Page 217]]

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 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

[[Page 218]]

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, 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

[[Page 219]]

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 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 preceding 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

[[Page 220]]

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 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

[[Page 221]]

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 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

[[Page 222]]

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 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

[[Page 223]]

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 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 224]]



                    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 Director
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. 03-2012, 77 FR 69376, November 16, 2012; 
Secretary's Order No. 02-2012, 77 FR 69378, November 16, 2012.

    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 Director 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; 78 
FR 8026, Feb. 5, 2013]



           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

[[Page 225]]

office, and agency, when used in connection with the CAA, have the 
meanings 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  Director.

    Director means the Director of the Office of Labor-Management 
Standards, head of the Office of Labor-Management Standards.\2\
---------------------------------------------------------------------------

    \2\ Pursuant to Secretary of Labor's Orders No. 02-2012, 77 FR 69378 
(November 16, 2012), and 03-2012, 77 FR 69376 (November 16, 2012), the 
Director of the Office of Labor-Management Standards has certain 
responsibilities and authority for implementing the standards of conduct 
provisions of the CSRA and the FSA.

[78 FR 8026, Feb. 5, 2013]



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.

[78 FR 8026, Feb. 5, 2013]



Sec.  457.16  Chief, DOE.

    Chief, DOE means the Chief of the Division of Enforcement within the 
Office of Labor-Management Standards.

[78 FR 8026, Feb. 5, 2013]



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 Director, Chief Administrative Law Judge, or 
Administrative Law Judge, as the case may be.

[50 FR 31311, Aug. 1, 1985, as amended at 78 FR 8026, Feb. 5, 2013]



Sec.  457.20  Intervenor.

    Intervenor means a party in a proceeding whose intervention has been 
permitted or directed by the Director, Chief Administrative Law Judge, 
or Administrative Law Judge, as the case may be.

[50 FR 31311, Aug. 1, 1985, as amended at 78 FR 8026, Feb. 5, 2013]

[[Page 226]]



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.
458.4 Informing members of the standards of conduct provisions.

                              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 Administative Review Board; 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 Administative Review Board.
458.92 Compliance with decisions and orders of the Administative Review 
          Board.
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. 03-2012, 77 FR 69376, 
November 16, 2012; Secretary's Order No. 01-2020, 85 FR 13186 (March 6, 
2020).

    Source: 45 FR 15158, Mar. 7, 1980, unless otherwise noted. 
Redesignated at 50 FR 31311, Aug. 1, 1985.

[[Page 227]]



   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 Director will be guided by 
the interpretations and policies followed by the Department of Labor in 
applying the provisions of the LMRDA and by applicable court decisions.

[45 FR 15158, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 78 FR 8026, Feb. 5, 2013]



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

[[Page 228]]

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 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]



Sec.  458.4  Informing members of the standards of conduct provisions.

    (a) Every labor organization subject to the requirements of the 
CSRA, the FSA, or the CAA shall inform its members concerning the 
standards of conduct provisions of the Acts and the regulations in this 
subchapter. Labor organizations shall provide such notice to members by 
October 2, 2006 and thereafter to all new members within 90 days of the 
time they join and to all members at least once every three years. 
Notice must be provided by hand delivery, U.S. mail or e-mail or a 
combination of the three as long as the method is reasonably calculated 
to reach all members. Such notice may be included with the required 
notice of local union elections. Where a union newspaper is used to 
provide notice, the notice must 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 notice in a particular issue is readily apparent to 
each member.
    (b) A labor organization may demonstrate compliance with the 
requirements of paragraph (a) of this section by showing that another 
labor organization provided an appropriate notice to all of its members 
during the necessary time frame.
    (c) Labor organizations may use the Department of Labor publication

[[Page 229]]

Union Member Rights and Officer Responsibilities under the Civil Service 
Reform Act (available on the OLMS Web site at http://www.dol.gov/olms) 
or may devise their own language as long as the notice accurately states 
all of the CSRA standards of conduct provisions as set forth in the fact 
sheet.
    (d) If a labor organization has a Web site, the site must contain a 
conspicuous link to Union Member Rights and Officer Responsibilities 
under the Civil Service Reform Act or, alternatively, to the labor 
organization's own notice prepared in accordance with paragraph (c) of 
this section.

[71 FR 31492, June 2, 2006, as amended at 78 FR 8026, Feb. 5, 2013]

                              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 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

[[Page 230]]

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. In enforcing this requirement the Director 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, as amended at 78 FR 8026, Feb. 5, 2013]



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 Director after an appropriate proceeding pursuant to 
Sec. Sec.  458.66 through 458.92 to have willfully violated Sec.  
458.27: Provided, however, That the Director 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, as amended at 78 FR 8026, Feb. 5, 2013]

[[Page 231]]



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. 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

[[Page 232]]

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 Director 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 statement of service 
shall be filed with the Director. 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; 78 
FR 8026, Feb. 5, 2013]



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]

[[Page 233]]



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 
Director, 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; 78 
FR 8026, Feb. 5, 2013]



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 as hereinafter provided in Sec. Sec.  458.66 through 
458.92, 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 Administrative Review Board issued under Sec.  458.70 or Sec.  
458.91, he shall certify to the Administrative Review Board the names of 
the persons elected. The Administrative Review Board 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; 78 FR 8026, Feb. 5, 
2013; 81 FR 33389, May 26, 2016]

                      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

[[Page 234]]

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.  458.2, Sec. Sec.  458.26-458.30, or Sec.  
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 Director 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; 78 
FR 8026, Feb. 5, 2013]



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 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.

[[Page 235]]

    (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 
Administrative Review Board. The Administrative Review Board may order 
the remedial action set forth in the stipulated agreement or take such 
other action as it deems appropriate.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at 
50 FR 31311, Aug. 1, 1985, as amended at 78 FR 8026, Feb. 5, 2013; 81 FR 
33389, May 26, 2016]



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 and the Administrative Review Board 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; 78 FR 8026, Feb. 5, 2013]



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;

[[Page 236]]

    (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 Administrative Review Board, 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;
    (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; 78 FR 8026, Feb. 5, 2013]



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,

[[Page 237]]

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 Administrative Review Board, but shall 
be considered by the Administrative Review Board only upon the filing of 
exceptions to the Administrative Law Judge's recommended decision and 
order in accordance with Sec.  458.88.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at 
50 FR 31311, Aug. 1, 1985, as amended at 78 FR 8026, Feb. 5, 2013]



Sec.  458.82  Motions after a hearing.

    All motions made after the transfer of the case to the 
Administrative Review Board, except motions to correct the record under 
Sec.  458.76(l), shall be made in writing to the Administrative Review 
Board. 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 
Administrative Review Board after the hearing, within seven (7) days 
after service of the moving papers unless it is otherwise directed.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at 
50 FR 31311, Aug. 1, 1985, as amended at 78 FR 8027, Feb. 5, 2013]



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

[[Page 238]]

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 Administrative Review Board; 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 Administrative Review Board 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 Administrative 
Review Board within fifteen (15) days after service of the recommended 
decision and order, in accordance with 29 CFR part 26. The 
Administrative Review Board 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 
Administrative Review Board.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at 
50 FR 31311, Aug. 1, 1985, as amended at 78 FR 8027, Feb. 5, 2013; 86 FR 
1785, Jan. 11, 2021]

[[Page 239]]



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 be filed in accordance 
with 29 CFR part 26, contain only matters included within the scope of 
the exceptions, and 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 
Administrative Review Board within ten (10) days after service of the 
exceptions.

[45 FR 15158, Mar. 7, 1980; 45 FR 28322, Apr. 29, 1980. Redesignated at 
50 FR 31311, Aug. 1, 1985, as amended at 78 FR 8027, Feb. 5, 2013; 86 FR 
1785, Jan. 11, 2021]



Sec.  458.91  Action by the Administrative Review Board.

    (a) After consideration of the Administrative Law Judge's 
recommended decision and order, the record, and any exceptions filed, 
the Administrative Review Board shall issue its decision affirming or 
reversing the Administrative Law Judge, in whole, or in part, or making 
such other disposition of the matter as it deems appropriate: Provided, 
however, That unless exceptions are filed which are timely and in 
accordance with Sec.  458.89, the Administrative Review Board may, at 
its discretion, adopt without discussion the recommended decision and 
order 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 Administrative Review Board.
    (b) Upon finding a violation of the CSRA, FSA or this part, the 
Administrative Review Board may order respondent to cease and desist 
from such violative conduct and may require the respondent to take such 
affirmative action as it deems appropriate to effectuate the policies of 
the CSRA or FSA.
    (c) Upon finding no violation of the CSRA, FSA or this part, the 
Administrative Review Board shall dismiss the complaint.

[78 FR 8027, Feb. 5, 2013]



Sec.  458.92  Compliance with decisions and orders of the Administrative 
Review Board.

    When remedial action is ordered, the respondent shall report to the 
Director, within a specified period, that the required remedial action 
has been effected. When the Director finds that the required remedial 
action has not been effected, he shall refer the matter for appropriate 
action to the Federal Labor Relations 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).

[78 FR 8027, Feb. 5, 2013]



Sec.  458.93  Stay of remedial action.

    In cases involving violations of this part, the Administrative 
Review Board

[[Page 240]]

may direct, subject to such conditions at it deems appropriate, that the 
remedial action ordered by stayed.

[78 FR 8027, Feb. 5, 2013]



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. 03-2012, 77 FR 69376, November 16, 2012.

    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 Director 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.

[45 FR 15165, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 78 FR 8027, Feb. 5, 2012]



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 Director, 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.

[45 FR 15165, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 78 FR 8027, Feb. 5, 2012]



Sec.  459.5  Rules to be construed liberally.

    (a) The regulations in this subchapter may be construed liberally to 
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 Director may at any time order the period altered 
where it shall be manifest that strict adherence

[[Page 241]]

will work surprise or injustice or interfere with the proper 
effectuation of the CSRA or FSA.

[45 FR 15165, Mar. 7, 1980. Redesignated at 50 FR 31311, Aug. 1, 1985, 
as amended at 78 FR 8027, Feb. 5, 2012]



  SUBCHAPTER C_EMPLOYEE RIGHTS CONCERNING PAYMENT OF UNION DUES OR FEES



                           PART 470 [RESERVED]

[[Page 242]]



  SUBCHAPTER D_NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS





PART 471_OBLIGATIONS OF FEDERAL CONTRACTORS AND SUBCONTRACTORS; 
NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS--Table of Contents



Subpart A_Definitions, Requirements for Employee Notice, and Exceptions 
                             and Exemptions

Sec.
471.1 What definitions apply to this part?
471.2 What employee notice clause must be included in Government 
          contracts?
471.3 What exceptions apply and what exemptions are available?
471.4 What employers are not covered under this part?

Appendix A to Subpart A of Part 471--Text of Employee Notice Clause

     Subpart B_General Enforcement; Compliance Review and Complaint 
                               Procedures

471.10 How will the Department determine whether a contractor is in 
          compliance with Executive Order 13496 and this part?
471.11 What are the procedures for filing and processing a complaint?
471.12 What are the procedures to be followed when a violation is found 
          during a complaint investigation or compliance evaluation?
471.13 Under what circumstances, and how, will enforcement proceedings 
          under Executive Order 13496 be conducted?
471.14 What sanctions and penalties may be imposed for noncompliance, 
          and what procedures will the Department follow in imposing 
          such sanctions and penalties?
471.15 Under what circumstances must a contractor be provided the 
          opportunity for a hearing?
471.16 Under what circumstances may a contractor be reinstated?

                       Subpart C_Ancillary Matters

471.20 What authority under this part or Executive Order 13496 may the 
          Secretary delegate, and under what circumstances?
471.21 Who will make rulings and interpretations under Executive Order 
          13496 and this part?
471.22 What actions may the Director of OLMS take in the case of 
          intimidation and interference?
471.23 What other provisions apply to this part?

    Authority: 40 U.S.C. 101 et seq.; Executive Order 13496, 74 FR 6107, 
February 4, 2009; Secretary's Order No. 7-2009, 74 FR 58834, November 
13, 2009; Secretary's Order No. 01-2020.

    Source: 75 FR 28397, May 20, 2010, unless otherwise noted.



Subpart A_Definitions, Requirements for Employee Notice, and Exceptions 
                             and Exemptions



Sec.  471.1  What definitions apply to this part?

    Construction means the construction, rehabilitation, alteration, 
conversion, extension, demolition, weatherization, 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.
    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, weatherization 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.
    Contract means, unless otherwise indicated, any Government contract 
or subcontract.
    Contracting agency means any department, agency, establishment, or 
instrumentality in the executive branch of the Government, including any 
wholly owned Government corporation, that enters into contracts.
    Contractor means, unless otherwise indicated, a prime contractor or 
subcontractor.
    Department means the U.S. Department of Labor.

[[Page 243]]

    Director of OFCCP means the Director of the Office of Federal 
Contract Compliance Programs in the Department of Labor.
    Director of OLMS means the Director of the Office of Labor-
Management Standards in the Department of Labor.
    Employee notice clause means the contract clause set forth in 
Appendix A that Government contracting departments and agencies must 
include in all Government contracts and subcontracts pursuant to 
Executive Order 13496 and this part.
    Government means the Government of the United States of America.
    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 non-personal 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 ``non-personal 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) Federal financial assistance, as defined in 29 CFR 31.2.
    Labor organization means any organization of any kind, or any agency 
or employee representation committee 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 of employment, or conditions of work.
    Modification of a contract means any alteration in the terms and 
conditions of that contract, including amendments, renegotiations, and 
renewals.
    Order or Executive Order means Executive Order 13496 (74 FR 6107, 
Feb. 4, 2009).
    Person means any natural person, corporation, partnership, 
unincorporated association, State or local government, and any agency, 
instrumentality, or subdivision of such a government.
    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 and this part.
    Related rules, regulations, and orders of the Secretary of Labor, as 
used in Sec.  471.2 of this part, means rules, regulations, and relevant 
orders issued pursuant to the Executive Order or this part.
    Secretary means the Secretary of Labor, U.S. Department of Labor, or 
his or her designee.
    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 non-
personal services that, 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.
    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 and this part.
    Union means a labor organization as defined above.
    United States means 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.  471.2  What employee notice clause must be included in Government
contracts?

    (a) Government contracts. With respect to all contracts covered by 
this part, Government contracting departments and agencies must, to the 
extent consistent with law, include the language set forth in appendix A 
to subpart A of part 471 in every Government contract, other than those 
contracts to which exceptions are applicable as stated in Sec.  471.3.

[[Page 244]]

    (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 471, appendix A to subpart A.
    (c) Adaptation of language. The Director of OLMS may find that an 
Act of Congress, clarification of existing law by the courts or the 
National Labor Relations Board, or other circumstances make modification 
of the contractual provisions necessary to achieve the purposes of the 
Executive Order and this part. In such circumstances, the Director of 
OLMS will promptly issue rules, regulations, or orders as are needed to 
ensure that all future government contracts contain appropriate 
provisions to achieve the purposes of the Executive Order and this part.
    (d) Physical posting of employee notice. A contractor or 
subcontractor that posts notices to employees physically must also post 
the required notice physically. Where a significant portion of a 
contractor's workforce is not proficient in English, the contractor must 
provide the notice in the language employees speak. The employee notice 
must be placed:
    (1) In conspicuous places in and about the contractor's plants and 
offices so that the notice is prominent and readily Seen by employees. 
Such conspicuous placement includes, but is not limited to, areas in 
which the contractor posts notices to employees about the employees' 
terms and conditions of employment; and
    (2) Where employees covered by the National Labor Relations Act 
engage in activities relating to the performance of the contract. An 
employee shall be considered to be so engaged if:
    (i) The duties of the employee's position include work that fulfills 
a contractual obligation, or work that is necessary to, or that 
facilitates, performance of the contract or a provision of the contract; 
or
    (ii) The cost or a portion of the cost of the employee's position is 
allowable as a cost of the contract under the principles set forth in 
the Federal Acquisition Regulation at 48 CFR Ch. 1, part 31: Provided, 
That a position shall not be considered covered by this part by virtue 
of this provision if the cost of the position was not allocable in whole 
or in part as a direct cost to any Government contract, and only a de 
minimis (less than 2%) portion of the cost of the position was allocable 
as an indirect cost to Government contracts, considered as a group.
    (e) Obtaining a poster with the employee notice. A poster with the 
required employee notice, including a poster with the employee notice 
translated into languages other than English, will be printed by the 
Department, and 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-5609, 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 in 
English and in languages other than English may also be downloaded from 
the Office of Labor-Management Standards Web site at http://
www.olms.dol.gov. Additionally, contractors may reproduce and use exact 
duplicate copies of the Department's official poster.
    (f) Electronic postings of employee notice. A contractor or 
subcontractor that customarily posts notices to employees electronically 
must also post the required notice electronically. Such contractors or 
subcontractors satisfy the electronic posting requirement by displaying 
prominently on any Web site that is maintained by the contractor or 
subcontractor, whether external or internal, and customarily used for 
notices to employees about terms and conditions of employment, a link to 
the Department of Labor's Web site that contains the full text of the 
poster. The link to the Department's Web site must read, ``Important 
Notice about Employee Rights to Organize and Bargain Collectively with 
Their Employers.'' Where a significant portion of a contractor's 
workforce is not proficient in English, the contractor must provide the 
notice required in this subsection in the language the employees speak. 
This requirement will

[[Page 245]]

be satisfied by displaying prominently on any Web site that is 
maintained by the contractor or subcontractor, whether external or 
internal, and customarily used for notices to employees about terms and 
conditions of employment, a link to the Department of Labor's Web site 
that contains the full text of the poster in the language the employees 
speak. In such cases, the Office of Labor-Management Standards will 
provide translations of the link to the Department's Web site that must 
be displayed on the contractor's or subcontractor's Web site.



Sec.  471.3  What exceptions apply and what exemptions are available?

    (a) Exceptions for specific types of contracts. The requirements of 
this part do not apply to any of the following:
    (1) Collective bargaining agreements as defined in the Federal 
Service Labor-Management Relations Statute, entered into by an agency 
and the exclusive representative of employees in an appropriate unit to 
set terms and conditions of employment of those employees.
    (2) Government contracts that involve purchases below the simplified 
acquisition threshold set by Congress under the Office of Federal 
Procurement Policy Act. Therefore, the employee notice clause need not 
be included in government contracts for purchases below that threshold, 
provided that
    (i) No agency or contractor is permitted to procure supplies or 
services in a manner designed to avoid the applicability of the Order 
and this part; and
    (ii) The employee notice clause must be included in government 
contracts 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 will be less than the simplified acquisition 
threshold set in the Office of Federal Procurement Policy Act.
    (3) Government contracts resulting from solicitations issued before 
the effective date of this rule.
    (4) Subcontracts of $10,000 or less in value, except that 
contractors and subcontractors are not permitted to procure supplies or 
services in a manner designed to avoid the applicability of the Order 
and this part.
    (5) Contracts and subcontracts for work performed exclusively 
outside the territorial United States.
    (b) Exemptions for certain contracts. The Director of OLMS may 
exempt a contracting department or agency or groups of departments or 
agencies from the requirements of this part with respect to a particular 
contract or subcontract or any class of contracts or subcontracts when 
the Director finds that either:
    (1) The application of any of the requirements of this part would 
not serve its purposes or would impair the ability of the Government to 
procure goods or services on an economical and efficient basis; or
    (2) Special circumstances require an exemption in order to serve the 
national interest.
    (c) Procedures for requesting an exemption and withdrawals of 
exemptions. Requests for exemptions under this subsection from a 
contracting department or agency must be in writing, and must be 
directed to the Director of OLMS, U.S. Department of Labor, 200 
Constitution Avenue, NW., Room N-5603, Washington, DC, 20210. The 
Director of OLMS may withdraw an exemption granted when, in the 
Director's judgment, such action is necessary or appropriate to achieve 
the purposes of this part.



Sec.  471.4  What employers are not covered under this part?

    (a) The following employers are excluded from the definition of 
``employer'' in the National Labor Relations Act (NLRA), and are not 
covered by the requirements of this part:
    (1) The United States or any wholly owned Government corporation;
    (2) Any Federal Reserve Bank;
    (3) Any State or political subdivision thereof;
    (4) Any person subject to the Railway Labor Act;
    (5) Any labor organization (other than when acting as an employer); 
or
    (6) Anyone acting in the capacity of officer or agent of such labor 
organization.

[[Page 246]]

    (b) Additionally, employers exclusively employing workers who are 
excluded from the definition of ``employee'' under the NLRA are not 
covered by the requirements of this part. Those excluded employees are 
employed:
    (1) As agricultural laborers;
    (2) In the domestic service of any family or person at his home;
    (3) By his or her parent or spouse;
    (4) As an independent contractor;
    (5) As a supervisor as defined under the NLRA;
    (6) By an employer subject to the Railway Labor Act; or
    (7) By any other person who is not an employer as defined in the 
NLRA



Sec. Appendix A to Subpart A of Part 471--Text of Employee Notice Clause

    ``1. During the term of this contract, the contractor agrees to post 
a notice, of such size and in such form, and containing such content as 
the Secretary of Labor shall prescribe, in conspicuous places in and 
about its plants and offices where employees covered by the National 
Labor Relations Act engage in activities relating to the performance of 
the contract, including all places where notices to employees are 
customarily posted both physically and electronically. The ``Secretary's 
notice'' shall consist of the following:

       ``Employee Rights Under The National Labor Relations Act''

    ``The NLRA guarantees the right of employees to organize and bargain 
collectively with their employers, and to engage in other protected 
concerted activity. Employees covered by the NLRA* are protected from 
certain types of employer and union misconduct. This Notice gives you 
general information about your rights, and about the obligations of 
employers and unions under the NLRA. Contact the National Labor 
Relations Board, the Federal agency that investigates and resolves 
complaints under the NLRA, using the contact information supplied below, 
if you have any questions about specific rights that may apply in your 
particular workplace.
    ``Under the NLRA, you have the right to:
     Organize a union to negotiate with your employer 
concerning your wages, hours, and other terms and conditions of 
employment.
     Form, join or assist a union.
     Bargain collectively through representatives of 
employees' own choosing for a contract with your employer setting your 
wages, benefits, hours, and other working conditions.
     Discuss your terms and conditions of employment 
or union organizing with your co-workers or a union.
     Take action with one or more co-workers to 
improve your working conditions by, among other means, raising work-
related complaints directly with your employer or with a government 
agency, and seeking help from a union.
     Strike and picket, depending on the purpose or 
means of the strike or the picketing.
     Choose not to do any of these activities, 
including joining or remaining a member of a union.
    ``Under the NLRA, it is illegal for your employer to:
     Prohibit you from soliciting for a union during 
non-work time, such as before or after work or during break times; or 
from distributing union literature during non-work time, in non-work 
areas, such as parking lots or break rooms.
     Question you about your union support or 
activities in a manner that discourages you from engaging in that 
activity.
     Fire, demote, or transfer you, or reduce your 
hours or change your shift, or otherwise take adverse action against 
you, or threaten to take any of these actions, because you join or 
support a union, or because you engage in concerted activity for mutual 
aid and protection, or because you choose not to engage in any such 
activity.
     Threaten to close your workplace if workers 
choose a union to represent them.
     Promise or grant promotions, pay raises, or other 
benefits to discourage or encourage union support.
     Prohibit you from wearing union hats, buttons, t-
shirts, and pins in the workplace except under special circumstances.
     Spy on or videotape peaceful union activities and 
gatherings or pretend to do so.
    ``Under the NLRA, it is illegal for a union or for the union that 
represents you in bargaining with your employer to:
     Threaten you that you will lose your job unless 
you support the union.
     Refuse to process a grievance because you have 
criticized union officials or because you are not a member of the union.
     Use or maintain discriminatory standards or 
procedures in making job referrals from a hiring hall.
     Cause or attempt to cause an employer to 
discriminate against you because of your union-related activity.
     Take other adverse action against you based on 
whether you have joined or support the union.
    ``If you and your coworkers select a union to act as your collective 
bargaining representative, your employer and the union are required to 
bargain in good faith in a genuine effort to reach a written, binding 
agreement setting your terms and conditions of employment. The union is 
required to fairly

[[Page 247]]

represent you in bargaining and enforcing the agreement.
    ``Illegal conduct will not be permitted. If you believe your rights 
or the rights of others have been violated, you should contact the NLRB 
promptly to protect your rights, generally within six months of the 
unlawful activity. You may inquire about possible violations without 
your employer or anyone else being informed of the inquiry. Charges may 
be filed by any person and need not be filed by the employee directly 
affected by the violation. The NLRB may order an employer to rehire a 
worker fired in violation of the law and to pay lost wages and benefits, 
and may order an employer or union to cease violating the law. Employees 
should seek assistance from the nearest regional NLRB office, which can 
be found on the Agency's Web site: http://www.nlrb.gov. ``Click on the 
NLRB's page titled ``About Us,'' which contains a link, ``Locating Our 
Offices.'' You can also contact the NLRB by calling toll-free: 1-866-
667-NLRB (6572) or (TTY) 1-866-315-NLRB (6572) for hearing impaired.
    ``* The National Labor Relations Act covers most private-sector 
employers. Excluded from coverage under the NLRA are public-sector 
employees, agricultural and domestic workers, independent contractors, 
workers employed by a parent or spouse, employees of air and rail 
carriers covered by the Railway Labor Act, and supervisors (although 
supervisors that have been discriminated against for refusing to violate 
the NLRA may be covered).
    ``This is an official Government Notice and must not be defaced by 
anyone.
    ``2. The contractor will comply with all provisions of the 
Secretary's notice, 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 13496 of January 30, 2009. Such other sanctions or 
remedies may be imposed as are provided in Executive Order 13496 of 
January 30, 2009, 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 13496 of January 30, 2009), so that such provisions will 
be binding upon each subcontractor. 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 non-compliance: 
Provided, however, if the contractor becomes involved in litigation with 
a subcontractor, 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.''



     Subpart B_General Enforcement; Compliance Review and Complaint 
                               Procedures



Sec.  471.10  How will the Department determine whether a contractor is in compliance with Executive Order 13496 and this part?

    (a) The Director of OFCCP may conduct a compliance evaluation to 
determine whether a contractor holding a covered 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 Sec.  471.2(a) is posted in 
conformity with the applicable physical and electronic posting 
requirements contained in Sec.  471.2(d) and (f); and
    (2) The provisions of the employee notice clause are included in 
government contracts, subcontracts or purchase orders entered into on or 
after June 21, 2010, or that the government contracts, subcontracts or 
purchase orders have been exempted under Sec.  471.3(b).
    (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 Sec.  471.13.



Sec.  471.11  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

[[Page 248]]

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 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:
    (1) The employee's name, address, and telephone number;
    (2) The name and address of the contractor alleged to have violated 
the Executive Order and this part;
    (3) An identification of the alleged violation and the establishment 
or construction work site where it is alleged to have occurred;
    (4) Any other pertinent information that will assist in the 
investigation and resolution of the complaint; and
    (5) The signature of the employee filing the complaint.
    (c) Complaint investigations. In investigating complaints filed with 
the Department under this section, the Director of OFCCP 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.



Sec.  471.12  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 Director 
of OFCCP will make reasonable efforts to secure compliance through 
conciliation.
    (b) Before the contractor may be found to be in compliance with the 
Executive Order or this part, 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 
subcontractors to include the employee notice clause), and must commit, 
in writing, not to repeat the violation.
    (c) If a violation cannot be resolved through conciliation efforts, 
the Director of OFCCP will refer the matter to the Director of OLMS, who 
may take action under Sec.  471.13.
    (d) For reasonable cause shown, the Director of OLMS may reconsider, 
or cause to be reconsidered, any matter on his or her own motion or in 
response to a request.



Sec.  471.13  Under what circumstances, and how, will enforcement proceedings under Executive Order 13496 be conducted?

    (a) General. (1) Violations of the Executive Order or this part may 
result in administrative enforcement proceedings. 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 cooperate with the compliance 
evaluation or complaint investigation, including failure to provide 
information sought during those procedures.
    (v) A contractor's refusal to take such action with respect to a 
subcontract as directed by the Director of OFCCP or the Director of OLMS 
as a means of enforcing compliance with the provisions of this part.
    (vi) A subcontractor's refusal to adhere to requirements of this 
part regarding employee notice or inclusion of the contract clause in 
its subcontracts.
    (2) If a determination is made by the Director of OFCCP that the 
Executive Order or the regulations in this part have been violated, and 
the violation has not been corrected through conciliation, he or she 
will refer the matter to the Director of OLMS for enforcement 
consideration. The Director of OLMS may refer the matter to the 
Solicitor of Labor to begin administrative enforcement proceedings.

[[Page 249]]

    (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 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 under 29 CFR 18.57 to the Administrative Review Board. 
The decision will be served on all parties and amicus curiae.
    (3) Within 25 days (10 days if 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 Administrative Review Board.
    (4) After the expiration of time for filing exceptions, the 
Administrative Review Board may issue an administrative order, or may 
otherwise appropriately dispose of the matter. In an expedited 
proceeding, unless the Administrative Review Board issues an 
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 Administrative Review 
Board determines that the contractor has violated the Executive Order or 
the regulations in this part, the 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 Sec.  471.14, impose appropriate sanctions and penalties, 
or any combination thereof.

[75 FR 28397, May 20, 2010, as amended at 85 FR 13034, Mar. 6, 2020; 85 
FR 30619, May 20, 2020; 85 FR 30619, June 19, 2020]



Sec.  471.14  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 Director of OLMS 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, which must include 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 will not 
be imposed if:
    (1) The head of the contracting agency, or his or her designee, 
continues to object to the imposition of such sanctions and penalties, 
or
    (2) The contractor has not been given an opportunity for a hearing.
    (d) In enforcing the Executive Order and this part, the Director of 
OLMS may take any of the following actions:
    (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 to comply with its contractual provisions 
required by Section 7(a) 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 7(b) of the Executive 
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 non-complying contractor.
    (3) Issue an order of debarment under Section 7(b) of the Executive 
Order providing that no contracting agency may enter into a contract 
with any non-complying subcontractor.

[[Page 250]]

    (e) Whenever the Director of OLMS exercises the authority in this 
section, the contracting agency must report the actions it has taken to 
the Director of OLMS within such time as the Director of OLMS will 
specify.
    (f) Periodically, the Director of OLMS will publish and distribute 
to all executive agencies a list of the names of contractors and 
subcontractors that have, in the judgment of the Director of OLMS, 
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 under the Executive Order and the regulations in this part.



Sec.  471.15  Under what circumstances must a contractor be provided the opportunity for a hearing?

    Before the Director of OLMS takes either of the following actions, a 
contractor or subcontractor must be given the opportunity for a hearing:
    (a) Issues an order for cancellation, termination, or suspension of 
any contract or debarment of any contractor from further Government 
contracts under Sections 7(a) or (b) of the Executive Order and Sec.  
471.14(d)(1) or (2) of this part; or
    (b) Includes the contractor on a published list of non-complying 
contractors under Section 7(c) of the Executive Order and Sec.  
471.14(f) of this part.



Sec.  471.16  Under what circumstances may a contractor be reinstated?

    Any contractor or subcontractor debarred from or declared ineligible 
for further contracts under the Executive Order and this part may 
request reinstatement in a letter to the Director of OLMS. In connection 
with a request for reinstatement, debarred contractors and 
subcontractors shall be required to show that they have established and 
will carry out policies and practices in compliance with the Executive 
Order and implementing regulations. Before reaching a decision, the 
Director of OLMS may request that a compliance evaluation of the 
contractor or subcontractor be conducted, and may require the contractor 
or subcontractor to supply additional information regarding the request 
for reinstatement. If the Director of OLMS finds that the contractor or 
subcontractor has come into compliance with the Executive Order and this 
part and has shown that it will carry out the Executive Order and this 
part, the contractor or subcontractor may be reinstated. The Director of 
OLMS shall issue a written decision on the request.



                       Subpart C_Ancillary Matters



Sec.  471.20  What authority under this part or Executive Order 13496 may the Secretary delegate, and under what circumstances?

    Section 11 of the Executive Order grants the Secretary the right to 
delegate any functions or duties 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.  471.21  Who will make rulings and interpretations under Executive Order 13496 and this part?

    The Director of OLMS and the Director of OFCCP will make rulings 
under or interpretations of the Executive Order or the regulations 
contained in this part in accordance with their respective 
responsibilities under the regulations. Requests for a ruling or 
interpretation must be submitted to the Director of OLMS, who will 
consult with the Director of OFCCP to the extent necessary and 
appropriate to issue such ruling or interpretation.



Sec.  471.22  What actions may the Director of OLMS take in the case of intimidation and interference?

    The Director of OLMS may impose the sanctions and penalties 
contained in Sec.  471.14 of this part against any contractor or 
subcontractor who does not 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 or

[[Page 251]]

enforcement of the Executive Order or this part.



Sec.  471.23  What other provisions apply to this part?

    (a) The regulations in this part implement only the Executive Order, 
and do not modify or affect the interpretation of any other Department 
of Labor regulations or policy.
    (b) Each contracting department and agency must cooperate with the 
Director of OLMS and the Director of the OFCCP, and must provide any 
information and assistance that they may require, in the performance of 
their functions under the Executive Order and the regulations in this 
part.
    (c)(1) This subpart does not impair or otherwise affect:
    (i) Authority granted by law to a department, agency, or the head 
thereof; or
    (ii) Functions of the Director of the Office of Management and 
Budget relating to budgetary, administrative, or legislative proposals.
    (2) This subpart must be implemented consistent with applicable law 
and subject to the availability of appropriations.
    (d) Neither the Executive Order nor this part creates any right or 
benefit, substantive or procedural, enforceable at law or in equity by 
any party against the United States, its departments, agencies, or 
entities, its officers, employees, or agents, or any other person.

                        PARTS 472	499 [RESERVED]

[[Page 253]]



                              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 255]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2023)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 256]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)
        LX  Federal Communications Commission (Parts 6000--6099)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   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)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         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 (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)

[[Page 257]]

      XXVI  Department of Defense (Parts 3600--3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  U.S. International Development Finance Corporation 
                (Parts 4300--4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)

[[Page 258]]

    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Parts 10100--10199)
       CII  U.S. Office of Special Counsel (Parts 10200--10299)
       CIV  Office of the Intellectual Property Enforcement 
                Coordinator (Part 10400--10499)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         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)

[[Page 259]]

      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                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  [Reserved]
      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  [Reserved]
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      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 Policy and New Uses, 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  National Institute of Food and 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]

[[Page 260]]

      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, and Rural 
                Utilities Service, Department of Agriculture 
                (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (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  Agricultural Marketing Service (Fair Trade Practices 
                Program), 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)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      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  [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  (Parts 900--999)[Reserved]

[[Page 261]]

         X  Consumer Financial Protection Bureau (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research, Department of the 
                Treasury (Parts 1600--1699)
      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 (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (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)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         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)

[[Page 262]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
        XV  Office of the Under-Secretary for Economic Affairs, 
                Department of Commerce (Parts 1500--1599)
            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) [Reserved]

                    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)

          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  U.S. 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  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

[[Page 263]]

                     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  Office of Workers' Compensation Programs, 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 Service, 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)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  United States Agency for Global Media (Parts 500--599)
       VII  U.S. International Development Finance Corporation 
                (Parts 700--799)
        IX  Foreign Service Grievance Board (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)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       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)

[[Page 264]]

                          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]
       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) 
                [Reserved]
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]

[[Page 265]]

        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       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--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        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 (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           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--799)

                   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)

[[Page 266]]

        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  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 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

[[Page 267]]

         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 Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      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  Department of Defense, Defense Logistics Agency (Parts 
                1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     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, Department 
                of Defense (Parts 200--399)
        IV  Great Lakes St. Lawrence Seaway Development 
                Corporation, Department of Transportation (Parts 
                400--499)

[[Page 268]]

                          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 Career, Technical, and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             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)
        VI  [Reserved]
       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 (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)

[[Page 269]]

       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory 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)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)
        IX  Federal Permitting Improvement Steering Council (Part 
                1900)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            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)
   62--100  [Reserved]
            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)
  103--104  (Parts 103-001--104-099) [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 270]]

       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)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Federal Acquisition Supply Chain Security
       201  Federal Acquisition Security Council (Parts 201-1--
                201-99).
            Subtitle E [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 303-1--303-99)
       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)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   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 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             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)

[[Page 271]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        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)
        IX  Denali Commission (Parts 900--999)
         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  Administration for Children and Families, 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 of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      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)

[[Page 272]]

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, 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  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)

[[Page 273]]

        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        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  Pipeline and Hazardous Materials Safety 
                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 (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   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)

[[Page 274]]

        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)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 275]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2023)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, VIII, IX, X, XI; 9, 
                                                  II
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, VIII, IX, X, XI; 9, 
                                                  II
  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
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 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
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  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 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 of                          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
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 276]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI; 38, II
Army, Department of                               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
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazard Investigation Board    40, VI
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 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 of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Affairs, Office of the Under-          15, XV
       Secretary for
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  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; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
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 Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I

[[Page 277]]

  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy, Department of                             32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 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
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Office of the Under-Secretary   15, XV
     for
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical, and Adult Education, Office  34, IV
       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
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
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 Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 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                   2, XV; 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
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, II
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
     States
[[Page 278]]

Export-Import Bank of the United States           2, XXXV; 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 Acquisition Security Council              41, 201
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 2, LX; 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                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
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 Agency                    5, LXXX; 12, XII
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
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 Permitting Improvement Steering Council   40, IX
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
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 Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 279]]

  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 Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Great Lakes St. Lawrence Seaway Development       33, IV
     Corporation
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 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, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 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
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II

[[Page 280]]

Indian Health Service                             25, V
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
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Intellectual Property Enforcement Coordinator,    5, CIV
     Office of
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Environmental Enforcement, Bureau    30, II
       of
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
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
Investment Security, Office of                    31, VIII
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 of                            2, XXVIII; 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
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 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
  Federal Acquisition Regulation                  48, 29

[[Page 281]]

  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
  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, VI
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
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, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
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
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 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   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 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                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI; 47, II

[[Page 282]]

National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII
Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
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                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, IV, 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
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory 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
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Safety and Environmental Enforcement, Bureau of   30, II
Science and Technology Policy, Office of          32, XXIV; 47, II
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 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 of                              2, VI; 22, I; 28, XI

[[Page 283]]

  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  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
  Great Lakes St. Lawrence Seaway Development     33, IV
       Corporation
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  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 of the                       2, X; 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                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
Truman, Harry S. Scholarship Foundation           45, XVIII
United States Agency for Global Media             22, V
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
U.S. Office of Special Counsel                    5, CII
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 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
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 285]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2018 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, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.govinfo.gov. For changes to this volume of the 
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. 
The ``List of CFR Sections Affected 1986-2000'' is available at 
www.govinfo.gov.

                                  2018

29 CFR
                                                                   83 FR
                                                                    Page
Chapter IV
405.5 Amended......................................................33842
405.7 Amended......................................................33842
406.2 (a) amended..................................................33842

                                  2019

29 CFR
                                                                   84 FR
                                                                    Page
Chapter I
102.1 (i) added....................................................69588
102.2 (a) revised..................................................69588
102.60 Revised.....................................................69588
102.61 Revised.....................................................69588
102.62 Revised.....................................................69589
102.63 Revised.....................................................69590
102.64 Revised.....................................................69593
102.65 Revised.....................................................69593
102.66 Revised.....................................................69594
102.67 Revised.....................................................69595
102.68 Revised.....................................................69597
102.69 Revised.....................................................69597
102.71 Revised.....................................................69599
102.119 Correction: (o) and (p) added..............................70425

                                  2020

29 CFR
                                                                   85 FR
                                                                    Page
Chapter I
102 Authority citation revised.....................................75855
102.1 Regulation at 84 FR 69588 delayed to 5-31-20.................17500
102.2 Regulation at 84 FR 69588 delayed to 5-31-20.................17500
102.60 Regulation at 84 FR 69588 delayed to 5-31-20................17500
102.61 Regulation at 84 FR 69588 delayed to 5-31-20................17500
102.62 Regulation at 84 FR 69589 delayed to 5-31-20................17500
102.63 Regulation at 84 FR 69590 delayed to 5-31-20................17500
102.64 Regulation at 84 FR 69593 delayed to 5-31-20................17500
102.65 Regulation at 84 FR 69593 delayed to 5-31-20................17500
102.66 Regulation at 84 FR 69594 delayed to 5-31-20................17500
102.67 Regulation at 84 FR 69595 delayed to 5-31-20................17500
102.68 Regulation at 84 FR 69597 delayed to 5-31-20................17500
102.69 Regulation at 84 FR 69597 delayed to 5-31-20................17500
102.71 Regulation at 84 FR 69599 delayed to 5-31-20................17500
102.119 Heading revised; (q) and (r) added.........................75855
103.20 Revised.....................................................18399
103.20 Regulation at 85 FR 18399 eff. date delayed to 7-31-20......20156
103.21 Added.......................................................18399

[[Page 286]]

103.21 Regulation at 85 FR 18399 eff. date delayed to 7-31-20......20156
103.22 Added.......................................................18400
103.20 Regulation at 85 FR 18399 eff. date delayed to 7-31-20......20156
103.40 (Subpart D) Added...........................................11235
Chapter IV
403 Technical correction...........................................17500
403.2 (d) added....................................................13441
403.5 (d) added....................................................13442
403.8 (b)(3) revised...............................................13442
417 Authority citation revised.....................................13034
471 Authority citation revised..............................13034, 30619
471.13 (b)(4) revised.......................................13034, 30619

                                  2021

29 CFR
                                                                   86 FR
                                                                    Page
Subtitle B
Chapter II
263.65 Revised......................................................2528
Chapter IV
403.2 (d) removed..................................................74371
403.4 (b)(3) and (6) introductory text revised.....................74371
403.5 (d) removed..................................................74371
403.8 (b)(3) removed...............................................74371
408.5 Revised......................................................74371
417.14 (a) revised..................................................1785
417.15 Revised......................................................1785
458 Authority citation revised......................................1785
458.88 (c) revised..................................................1785
458.90 (a) introductory text revised................................1785

                                  2022

                 (No regulations published during 2022)

                                  2023

   (Regulations published from January 1, 2023, through July 1, 2023)

29 CFR
                                                                   88 FR
                                                                    Page
Subtitle B
Chapter I
102.62 (d) revised.................................................14911
102.64 Regulation at 84 FR 69593 stayed in part until 9-10-23......14913
102.67 (c), (h), (i)(3), and (l) revised...........................14912
102.67 Regulation at 84 FR 69595 stayed in part until 9-10-23......14913
102.69 (a)(5), (b), (c)(1)(i), (iii), (2), and (h) revised.........14912


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