[Congressional Record Volume 142, Number 68 (Wednesday, May 15, 1996)]
[House]
[Pages H5153-H5172]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                     NOTICE OF PROPOSED RULEMAKING

                                                    U.S. Congress,


                                         Office of Compliance,

                                     Washington, DC, May 14, 1996.
     Hon. Newt Gingrich,
     Speaker of the House, U.S. House of Representatives, The 
         Capitol--Room H-233, Washington, DC.
       Dear Mr. Speaker: Pursuant to Section 304(b) of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 
     Sec. 1384(b)), I am transmitting on behalf of the Board of 
     Directors the enclosed notice of proposed rulemaking for 
     publication in the Congressional Record. The notice contains 
     the recommendation of the Deputy Executive Director for the 
     Senate which the Board has approved and implements Sec. 220 
     of the Congressional Accountability Act.
       The Congressional Accountability Act specifies that the 
     enclosed notice be published on the first day on which both 
     Houses are in session following this transmittal.
           Sincerely,
                                                    Glen D. Nager,
                                               Chair of the Board.

  Office of Compliance--The Congressional Accountability Act of 1995: 
Extension of Rights, Protections and Responsibilities Under Chapter 71 
   of Title 5, United States Code, Relating to Federal Service Labor-
     Management Relations (Regulations Under Section 220(d) of the 
                   Congressional Accountability Act)


                     NOTICE OF PROPOSED RULEMAKING

       Summary: The Board of Directors of the Office of Compliance 
     is publishing proposed regulations to implement section 220 
     of the Congressional Accountability Act of 1995 (``CAA'' or 
     ``Act''), Pub. L. 104-1, 109 Stat. 3. Specifically, these 
     regulations are published pursuant to section 220(d) of the 
     CAA.
       The provisions of section 220 are generally effective 
     October 1, 1996. 2 U.S.C. section 1351. Section 220(d) of the 
     Act directs the Board to issue regulations to implement 
     section 220. The proposed regulations set forth herein are to 
     be applied to the Senate, the House of Representatives, and 
     the Congressional instrumentalities and employees of the 
     Senate, the House of Representatives, and the Congressional 
     instrumentalities. These regulations set forth the 
     recommendations of the Deputy Executive Director for the 
     Senate, the Deputy Executive Director for the House of 
     Representatives and the Executive Director, Office of 
     Compliance, as approved by the Board of Directors, Office of 
     Compliance. A Notice of Proposed Rulemaking under section 
     220(e) is being published separately.

[[Page H5154]]

       Dates: Comments are due within 30 days of publication of 
     this Notice in the Congressional Record.
       Addressess: Submit written comments (an original and 10 
     copies) to the Chair of the Board of Directors, Office of 
     Compliance, Room LA 200, John Adams Building, 110 Second 
     Street, S.E., Washington, DC 20540-1999. Those wishing to 
     receive notification of receipt of comments are requested to 
     include a self-addressed, stamped post card. Comments may 
     also be transmitted by facsimile (``FAX'') machine to (202) 
     426-1913. This is not a toll-free call. Copies of comments 
     submitted by the public will be available for review at the 
     Law Library Reading Room, Room LM-201, Law Library of 
     Congress, James Madison Memorial Building, Washington, DC, 
     Monday through Friday, between the hours of 9:30 a.m. and 
     4:00 p.m.
       For Further Information Contact: Executive Director, Office 
     of Compliance at (202) 724-9250. This notice is also 
     available in the following formats: large print, braille, 
     audio tape, and electronic file on computer disk. Requests 
     for this notice in an alternative format should be made to 
     Mr. Russell Jackson, Director, Service Department, Office of 
     the Sergeant at Arms and Doorkeeper of the Senate, 202-224-
     2705.


                       SUPPLEMENTARY INFORMATION

                             I. Background

                            A. Introduction

       The Congressional Accountability Act of 1995 (``CAA'' or 
     ``Act'') was enacted into law on January 23, 1995. In 
     general, the CAA applies the rights and protections of eleven 
     federal labor and employment law statutes to covered 
     Congressional employees and employing offices. Section 220 of 
     the CAA concerns the application of chapter 71 of title 5, 
     United States Code (``chapter 71'') relating to Federal 
     service labor-management relations. Section 220(a) of the CAA 
     applies the rights, protections and responsibilities 
     established under sections 7102, 7106, 7111 through 7117, 
     7119 through 7122 and 7131 of title 5, United States Code to 
     employing offices and to covered employees and 
     representatives of those employees.
       Section 220(d) authorizes the Board of Directors of the 
     Office of Compliance (``Board'') to issue regulations to 
     implement section 220 and further states that, except as 
     provided in subsection (e), such regulations ``shall be the 
     same as substantive regulations promulgated by the Federal 
     Labor Relations Authority [``FLRA''] to implement the 
     statutory provisions referred to in subsection (a) except-(A) 
     to the extent that the Board may determine, for good cause 
     shown and stated together with the regulation, that a 
     modification of such regulations would be more effective for 
     the implementation of the rights and protections under this 
     section; or (B) as the Board deems necessary to avoid a 
     conflict of interest or appearance of a conflict of 
     interest.''
       Section 220(e) further authorizes the Board to issue 
     regulations on the manner and extent to which the 
     requirements and exemptions of chapter 71 should apply to 
     covered employees who are employed in certain specified 
     offices, ``except . . . that the Board shall exclude from 
     coverage under [section 220] any covered employees who are 
     employed in [the specified offices] if the Board determines 
     that such exclusion is required because of (i) a conflict of 
     interest or appearance of a conflict of interest; or (ii) 
     Congress' constitutional responsibilities.''
       This Notice of Proposed Rulemaking sets forth proposed 
     regulations under section 220(d) of the CAA. A Notice of 
     Proposed Rulemaking with respect to regulations under section 
     220(e) is being published separately.

                B. Advance Notice of Proposed Rulemaking

       On March 6, 1996, the Board of Directors of the Office of 
     Compliance (``Office'') issued an Advance Notice of Proposed 
     Rulemaking (``ANPR'') that solicited comments from interested 
     parties in order to obtain participation and information 
     early in the rulemaking process. 142 Cong. R. S1547 (daily 
     ed., Mar. 6, 1996). In addition to inviting comment on all 
     relevant matters and/or specific questions arising under 
     section 220 of the CAA, the Office sought consultation with 
     the FLRA and the Director of the Office of Personnel 
     Management with regard to the development of these 
     regulations in accordance with section 304(g) of the CAA. The 
     Office has also consulted with interested parties to further 
     its understanding of the need for and content of appropriate 
     regulations.
       The Board received 5 comments on the ANPR: one from the 
     Secretary of the Senate and four from various labor 
     organizations. Based on the information gleaned from its 
     consultations and the comments on the ANPR, the Board is 
     publishing these proposed rules, pursuant to section 220(d) 
     of the CAA.
       1. Substantive Regulations Promulgated by the Federal Labor 
     Relations Authority.--In the ANPR, the Board invited comment 
     on the meaning of the term ``substantive regulations'' under 
     sections 220 and 304 of the CAA and further asked commenters 
     to identify which of the regulations promulgated by the FLRA 
     should be considered substantive regulations within the 
     meaning of section 220 of the CAA. In this regard, the Board 
     noted that certain of the FLRA's regulations relate to 
     processes that implement chapter 71, while others relate to 
     principles or criteria for making decisions that implement 
     chapter 71. The Board invited commenters to discuss whether, 
     in their view, the term ``substantive'' as used in sections 
     220 and 304 of the CAA might be intended to distinguish such 
     regulations from those that are ``procedural'' in nature or 
     content. In addition, the Board specifically invited comment 
     on whether and, if so, to what extent the Board should 
     propose the adoption of the FLRA regulations set forth in 5 
     C.F.R. sections 2411-2416.
        a. Summary of comments: Two commenters addressed the 
     meaning of the term ``substantive regulations.'' One of these 
     two commenters suggested that the term ``substantive 
     regulations'' means ``only those regulations promulgated by 
     the [FLRA] that are necessary to implement the provisions of 
     chapter 71 made applicable'' by section 220 of the CAA. In 
     this commenter's view, the term ``substantive regulations'' 
     should exclude FLRA regulations that address procedural 
     processes already provided for by the CAA. For example, 
     because sections 405 and 406 of the CAA and the Office's 
     procedural rules promulgated under section 303 set forth the 
     procedures for hearings and Board review of hearing officer's 
     decisions, in this commenter's view, provisions of the FLRA's 
     regulations that purport to govern those matters should not 
     be adopted by the Board. In support of its position, the 
     commenter cited to Batterton v. Francis, 432 U.S. 416, 425 
     n.9 (1977).
       This commenter further asserted that the term ``substantive 
     regulations'' should neither include FLRA regulations that 
     are procedural in nature, such as those addressing filing 
     procedures, nor FLRA regulations that address processes 
     already provided for in procedural rules issued by the Office 
     pursuant to section 303 of the CAA, because ``their adoption 
     is not necessary to implement the provisions of chapter 71 
     made applicable by the CAA.'' The commenter stated that the 
     Board has issued regulations, pursuant to section 303, that 
     provide procedures for submissions under Part A of the CAA; 
     the commenter urged that, to the extent possible, the same 
     procedures should be used for submissions under Part D 
     (section 220) of the CAA. The commenter suggested that, if 
     any modifications to the Office's procedural rules are 
     required to implement section 220, the Board should issue 
     additional procedural regulations under section 303 of the 
     CAA, rather than adopt assertedly ``non-substantive'' 
     regulations of the FLRA.
       Based on these views, this commenter took the position 
     that, with certain modifications, all regulations set forth 
     in subchapters C and D of the FLRA's regulations are 
     substantive and should be adopted by the Board. Within those 
     subchapters, this commenter suggested the exclusion of those 
     regulations that the commenter deemed purely procedural. 
     ``Finally, this commenter opined that the regulations in 
     subchapter B, set forth at sections 2411-2416, should not be 
     adopted by the Board as those sections do not implement 
     provisions of chapter 71, as applied by the CAA.
        The other commenter did not propose to define the term 
     ``substantive regulations.'' Rather, this commenter asserted 
     that, at present, it is not necessary for the Board to decide 
     which of the FLRA's regulations are substantive. Instead, 
     this commenter suggested that, although the FLRA's 
     regulations may or may not be ``substantive regulations,'' 
     the regulations are sound procedural guides that the Board 
     is free to follow in the exercise of its general 
     rulemaking authority under sections 303 and 304 of the 
     CAA. The commenter pointed to the approach to rulemaking 
     followed by the FLRA and the National Labor Relations 
     Board (NLRB) as models for the Board, arguing that both 
     the FLRA's and the NLRB's regulations include the various 
     processes by which unfair labor practice and 
     representation cases may be brought and considered and 
     that neither the FLRA nor the NLRB has sought to ``define 
     substantive rights by regulation.''
       Finally, one other commenter, while not addressing the 
     meaning of the term ``substantive regulations,'' suggested 
     that the Board should adopt all of the FLRA's regulations, 
     including sections 2411-2416.
       b. Board consideration and conclusion: The Board first 
     examines the question of the meaning of the term 
     ``substantive regulations'' under sections 220 and 304 of the 
     Act. Under settled principles of administrative law, 
     substantive regulations are regulations implementing an 
     underlying statute that are issued by a regulatory body 
     pursuant to its statutory authority. See Batterton v. 
     Francis, 432 U.S. 416, 425 n.9 (1977). Such regulations are 
     generally promulgated in accordance with the Administrative 
     Procedure Act, which requires that substantive rulemaking 
     generally be preceded by a general notice of proposed 
     rulemaking at least thirty days before the effective date of 
     the proposed rule, and further requires that the agency 
     afford interested persons an opportunity to participate in 
     the rulemaking by submitting written comments. Regulations 
     issued pursuant to this process are substantive because they 
     ``have the force and effect of law,'' id., and because, among 
     other things, they ``grant rights, impose obligations, or 
     produce other significant effects on private interests,'' or 
     . . . `effect a change in existent law or policy.' '' 
     American Hospital Assoc. v. Bowen, 834 F.2d 1037, 1044 (D.C. 
     Cir. 1987) (citations omitted).
       That regulations may arguably be procedural in content is, 
     in the Board's view, not a legally sufficient reason for not 
     viewing them as ``substantive regulations.'' Procedural rules 
     can in fact be substantive regulations. Process is frequently 
     the substance of law and regulation; indeed, in the labor 
     laws, process is the predominate means by which

[[Page H5155]]

     substantive regulation is effectuated. Moreover, in 
     administrative law, it is commonplace for regulations 
     covering procedures to be considered substantive regulations; 
     as noted above, the Administrative Procedure Act generally 
     treats regulation of process as substantive regulation. There 
     is no evidence that Congress intended a different approach in 
     the context of the CAA. Thus, it is the Board's conclusion 
     that all regulations promulgated after a notice and comment 
     period by the FLRA to implement chapter 71 are appropriately 
     classified as substantive regulations for the purposes of 
     rulemaking under sections 220 and 304 of the CAA.
       In light of the foregoing, the Board has considered the 
     regulations promulgated by the FLRA in order to determine 
     which of the regulations are ``substantive regulations.'' The 
     regulations promulgated by the FLRA ``are designed to 
     implement the provisions of chapter 71 of title 5 of the 
     United States Code . . . [and] prescribe the procedures, 
     basic principles or criteria under which the Federal Labor 
     Relations Authority or the General Counsel'' will carry out 
     their functions, resolve issues and otherwise administer 
     chapter 71. 5 C.F.R. Sec. 2420.1. In addition, these 
     regulations were issued according to the requirements of the 
     Administrative Procedure Act, with a public notice and 
     comment period. Therefore, it is the Board's judgment that 
     all the regulations promulgated by the FLRA and published at 
     5 C.F.R. 2411-2416, 2420-2430 and 2470-2472 are 
     ``substantive regulations'' within the meaning of sections 
     220 and 304 of the CAA.
       A review of the FLRA's regulations demonstrates, however, 
     that not all of the FLRA's substantive regulations are ones 
     that the Board need adopt. Certain of the FLRA's regulations 
     were promulgated to implement provisions of statutes other 
     than provisions of chapter 71 made applicable by the CAA. In 
     this regard, in the ANPR, the Board noted that sections 2411-
     2416 of the FLRA's regulations treat, among other things, the 
     implementation and applicability of the Freedom of 
     Information Act, the Privacy Act and the Sunshine Act in the 
     FLRA's processes. Although one commenter suggested that the 
     referenced statutes and the FLRA's implementing regulations 
     should govern the processes of the Office of Compliance, 
     these statutes were not incorporated in the CAA and the Board 
     thus is not proposing the adoption of sections 2411-2416 of 
     the FLRA regulations.
       Similarly, the Board does not propose to adopt either 
     section 2430 of the FLRA's regulations, which establishes 
     procedures for applying for awards of attorney fees and other 
     expenses under the Equal Access to Justice Act, 5 U.S.C. 504, 
     or section 2472, which implements provisions of section 6131 
     of title 5 of the United States Code. As neither 5 U.S.C. 504 
     nor 5 U.S.C. 6131 is applied by the CAA, sections 2430 and 
     2472 were not promulgated to implement statutory provisions 
     that are applied by section 220 and, accordingly, the FLRA's 
     regulations implementing them need not be adopted.
       2. Proposed Modification of Substantive Regulations of the 
     FLRA.--In the ANPR, the Board invited comment on whether and 
     to what extent it should, pursuant to section 220(d) of the 
     CAA, modify the substantive regulations promulgated by the 
     FLRA. Section 220(d) provides that the Board shall issue 
     regulations that are the same as applicable substantive 
     regulations of the FLRA ``except to the extent that the Board 
     may determine, for good cause shown and stated together with 
     the regulations, that a modification of such regulations 
     would be more effective for the implementation of the rights 
     and protections under this section'' (emphasis added). 
     Section 220(d) also provides that the Board may modify the 
     FLRA's substantive regulations ``as the Board deems necessary 
     to avoid a conflict of interest or appearance of a conflict 
     of interest.''
       a. Summary of comments: A number of commenters urged that 
     the FLRA's substantive regulations should be adopted without 
     change. One of these commenters particularly stressed, in its 
     view, the need to adopt without change the regulations that 
     treat recourse to the Federal Service Impasses Panel and the 
     Merit Systems Protection Board. But another commenter 
     suggested several modifications to the substantive 
     regulations. In addition to a variety of technical changes in 
     nomenclature and terminology, this commenter specifically 
     suggested the following modifications:
       (1) Regulations implementing provisions of chapter 71 not 
           made applicable by the CAA
       The commenter stated that section 2423.9(b) should not be 
     adopted on the ground that it sets forth procedures 
     implementing 5 U.S.C. section 7123(d), a section not 
     incorporated into the CAA.
       (2) Provisions inapplicable under the CAA
       The commenter further suggested that the definition of the 
     term ``activity'' under section 2421.5 of the FLRA's 
     regulations should be deleted on the ground that it has 
     no applicability in the legislative branch. Further, this 
     commenter suggested that the term ``Government-wide rule'' 
     found throughout the regulations should be changed to 
     ``Government-wide rule applicable to the Senate 
     [Legislative Branch]'' because not all government-wide 
     rules apply to the legislative branch. Similarly, this 
     commenter proposed the deletion of section 2425.3(b) 
     because it relates to civil service employees, of which 
     there are none in the legislative branch. The commenter 
     further suggested that Section 2429.2, relating to 
     transfer and consolidation of cases, should also be 
     deleted because it has no applicability in light of the 
     structure of the Office of Compliance. Finally, according 
     to the commenter, part 2428 of the FLRA's regulations, 
     which relates to enforcement of decisions of the Assistant 
     Secretary of Labor for Labor-Management Relations, should 
     not be adopted because the Assistant Secretary has no 
     authority under the CAA and neither covered employees nor 
     employing offices are bound by the decisions of the 
     Assistant Secretary.
       (3) Regulations addressing procedures governed by 405 and 
           406 of CAA
       The commenter also contended that section 220 of the CAA 
     directs that all representation and unfair labor practice 
     matters that arise under section 220 be referred ``to a 
     hearing officer for decision pursuant to subsection (b) 
     through (h) of section 405.'' Further, according to the 
     commenter, sections 220(c)(1) and (2) require that decisions 
     of the hearing officers be reviewed by the Board under 
     section 406 of the CAA. Consequently, in this commenter's 
     view, the Board should not adopt any FLRA regulation relating 
     to the conduct of hearings on representation petitions or 
     unfair labor practice allegations or relating to Board review 
     of decisions. For example, this commenter suggested that 
     sections 2422.18-22 of the FLRA's regulations should be 
     omitted because they relate to the procedures for the conduct 
     of pre-election investigatory hearings on representation 
     petitions; according to the commenter, procedures for these 
     hearings are governed by section 405 of the CAA and by the 
     Board's procedural rules.
       (4) Consultation Rights
       The commenter additionally suggested that the threshold 
     requirement in section 2426.1 of the FLRA's regulations that 
     a labor organization hold exclusive recognition for 10% or 
     more of the personnel of an employing office in order for 
     that labor organization to obtain consultation rights be 
     modified for good cause. Because of the small size of many 
     employing offices in the legislative branch, the commenter 
     expressed the concern that employing offices would be 
     required to engage in consultation when only one or two 
     employees are represented by a union. Such an obligation to 
     consult would, in this commenter's view, ``interfere with the 
     rights of unrepresented employees because it would 
     necessarily cause delay in implementation of new terms of 
     employment.''
       (5) Posting of Materials
       The commenter suggested that sections 2422.7 and 2422.23 of 
     the FLRA's regulations be modified to prohibit the posting of 
     any material relating to a labor organization in any area 
     open to the public on the basis that such a display of 
     material would create a conflict of interest ``insofar as it 
     may appear that Congress is unduly influenced by particular 
     labor organizations.''
       b. Board Consideration and Response to Comments: Based upon 
     the comments received and the Board's understanding of 
     chapter 71 and the institutions to which it is being made 
     applicable through the CAA, the Board is proposing to adopt 
     the FLRA's regulations published at 5 C.F.R. 2420-29 and 
     2470-71 with only limited modifications. The Board has 
     proposed to delete provisions of the FLRA's regulations 
     that were promulgated to implement provisions of chapter 
     71 that are not applied by the CAA. In this regard, 
     sections 2423.9(b)(c) and (d) have been deleted because 
     they implement section 7123(d) of chapter 71, a provision 
     that is not applied by the CAA. Similarly, section 2429.7 
     of the FLRA's regulations, relating to the issuance of 
     subpoenas, has been deleted because it implements section 
     7132 of chapter 71, a section of chapter 71 that is not 
     applied by the CAA. Finally, as statutory provisions in 
     title 5 that permit executive branch employees to have 
     access to the Merit Systems Protection Board (MSPB) were 
     not applied by the CAA, references to the MSPB have also 
     been deleted. The Board finds that there is good cause to 
     make these modifications for the reasons herein stated.
       In addition, the Board has proposed to make technical 
     changes in definitions, nomenclature and prescribed processes 
     so that the regulations comport with the CAA and the 
     organizational structure of the Office of Compliance. In the 
     Boards judgment, making such changes satisfies the Act's 
     ``good cause'' requirement. However, contrary to one 
     commenter's suggestion that the terms ``activity'' and 
     ``Government-wide'' rule be omitted or modified, the Board is 
     of the view that these concepts have applicability in the 
     context of the CAA and therefore should not be deleted or 
     modified. Of course, the Board welcomes additional comment on 
     these issues as part of interested parties' comments on the 
     proposed rules.
       In addition to the foregoing, the Board has concluded that 
     there is good cause to propose certain other modifications to 
     the FLRA's regulations. These proposed modifications are 
     discussed below.
       (1) Exercise of Investigative and Adjudicatory 
           Responsibilities
       In issuing these proposed regulations to implement section 
     220, the Board has had to determine how it may best exercise 
     its investigative and other authorities and responsibilities 
     under section 220 of the CAA. In this regard, the Board notes 
     that section 220(c)(1) of the CAA provides that the Board 
     shall exercise the authorities of the three member Federal 
     Labor Relations Authority

[[Page H5156]]

     (Authority) under various provisions of chapter 71 and that 
     any ``petition, or other submission that, under chapter 71. . 
     .would be submitted to the. . .Authority shall,. . .be 
     submitted to the Board''. The Board further notes that 
     section 220(c)(1) provides that the Board ``shall refer any 
     matter under this paragraph to a hearing officer for decision 
     pursuant to. . .section 405''; and yet it also states that 
     the Board may direct that the General Counsel carry out the 
     Board's investigative authorities''. Finally, the Board notes 
     that section 220(c)(3) limits judicial review to Board 
     actions on unfair labor practice complaints. As an initial 
     matter, therefore, there is a question as to whether section 
     220(c)(1) should be read to require that all representation, 
     arbitration, negotiability and unfair labor practice issues 
     that come before the Board first be referred to hearing 
     officers for decision under section 405, or only to require 
     referral of those matters that require a formal adversary 
     hearing (involving, among other things, discovery and 
     adherence to formal rules of evidence) in order to resolve 
     the matter in dispute and create a record for judicial 
     review. After considerable reflection, the Board is persuaded 
     that Congress did not intend in the CAA to require that all 
     issues first be presented to a hearing officer under section 
     405.
       By its terms, section 220(c)(1) of the CAA expressly 
     contemplates a distinction between investigative issues and 
     those issues requiring referral for an adversary hearing. 
     Specifically, section 220 expressly acknowledges that the 
     Board possesses and may exercise investigative 
     authorities, and explicitly states that the Board may 
     direct the General Counsel to carry out such investigative 
     authorities. A fortiori, the Board does not have to refer 
     matters involving these ``investigative authorities'' to a 
     hearing officer (but rather may direct the General Counsel 
     to carry them out or carry them out itself).
       The textual reference to the Board's investigative 
     authorities is, in fact, only one of the statutory signals 
     that Congress did not intend to require the Board to refer 
     all issues to a hearing officer for initial decision under 
     Section 405. Section 220(c)(3) further specifies that there 
     shall be judicial review of only Board actions on unfair 
     labor practice complaints. Since one of the key purposes of 
     the section 405 hearing process is to create a record for 
     judicial review, this limitation of the judicial review 
     process is another textual suggestion that Congress intended 
     to require referral to a hearing officer of only those 
     matters that require a hearing of the type contemplated by 
     section 405--i.e., a formal adversary hearing that 
     establishes a record for Board and then judicial review.
       Indeed, in section 220, Congress purported to impose upon 
     the legislative branch the labor law applicable to the 
     executive branch. In that scheme, representation issues, 
     negotiability of bargaining proposals, and review of arbitral 
     awards are not subject to elaborate adversarial procedures. 
     Rather, they are subject to different investigative and 
     decisional process better suited to expeditious and effective 
     resolution of the issues presented. A determination by the 
     Board that the resolution of exceptions to arbitral awards, 
     negotiability of bargaining proposals, and representation 
     petitions, must first be referred to a hearing officer for an 
     adversarial hearing under section 405 would result in an 
     overly cumbersome system that would undermine considerably 
     the effective implementation of Section 220. The Board would 
     not hesitate to implement such a scheme if Congress had 
     clearly commanded it; but, when read in context, the 
     statutory language does not so require, and the legislative 
     history contains no suggestion that Congress intended such a 
     striking departure from the underlying statutory scheme that 
     it was purporting to impose on itself. In such circumstances, 
     the Board cannot find good cause to modify the FLRA's 
     regulations to require formal adversarial proceedings where 
     they are not presently required under chapter 71.
       Accordingly, the Board has examined the range of 
     investigative and adjudicatory functions carried out by the 
     FLRA and its officials under chapter 71 and the FLRA's 
     regulations. The Board has further examined the manner in 
     which those functions may most effectively and appropriately 
     be carried out by the Office under the CAA. The Board has 
     considered the suggestions of the commenters, the differences 
     in organizational structure between the Office of Compliance 
     and the FLRA, and the language and underlying statutory 
     schemes of chapter 71 and the CAA. And, having done so, the 
     Board has concluded that, consistent with the language of 
     section 220(c)(1) and the scheme envisioned and implemented 
     under chapter 71, issues that are presented directly to the 
     Authority may and should also be presented directly to the 
     Board. Likewise, the Board has determined that issues that 
     are submitted to administrative law judges in the chapter 71 
     scheme should be submitted to hearing officers in the CAA 
     scheme. Thus, the Board will decide representation issues, 
     negotiability issues and exceptions to arbitral awards based 
     upon a record developed through direct submissions from the 
     parties and, where necessary, further investigation by the 
     Board (through the person of the Executive Director); and it 
     will refer unfair labor practice complaints to hearing 
     officers for initial decision under section 405 (and then 
     review by the Board and the courts).
       Contrary to one commenter's assertion, 220(c)(1) does not 
     require that pre-election hearings on representation 
     petitions be conducted pursuant to section 405 of the CAA. 
     Such hearings are investigatory in nature; and they do not 
     require formal adversarial proceedings. They are to be 
     conducted as part of the Board's authority to investigate 
     representation petitions pursuant to the provisions of 
     chapter 71 that are applied by the CAA. They thus need not be 
     conducted by hearing officers under section 405.
       (2) Procedural matters
       The Board has further concluded that there is good cause to 
     modify the FLRA's substantive regulations by omitting 
     provisions that set forth procedures which are already 
     provided for under comparable provisions of the Office's 
     procedural rules. There are obvious benefits to having one 
     set of procedural rules for matters arising under the CAA. 
     Indeed, one commenter suggested this beneficial outcome in 
     arguing why certain rules should not be considered to be 
     ``substantive regulations'' within the meaning of section 
     304. While the Board believes that the rules are in fact 
     substantive regulations, it believes that the benefits of 
     having one set of procedural rules provides the ``good 
     cause'' needed to modify the FLRA's substantive regulations 
     in this respect.
       Accordingly, provisions of Part 2423 relating to the filing 
     of complaints and the conduct of hearings on allegations of 
     violations of section 220 have been deleted or modified, as 
     appropriate, where there is a specific regulation on the same 
     matters in the Office's procedural rules. Similarly, 
     provisions of Part 2429 of the FLRA's regulations relating to 
     such matters as service, interlocutory appeals, computation 
     of time, and methods of filing have been deleted or modified, 
     to the extent that they are the same as, or specifically 
     provided for under, procedural rules already issued. Finally, 
     section 2429.9 relating to presentations by an amicus curiae 
     and section 2429.17, which provides procedures for seeking 
     Board reconsideration, have also been deleted. Although these 
     subjects are not now covered by the Office's procedural 
     rules, they have general applicability to Board proceedings 
     under the CAA. The Board has determined that it would be more 
     effective for the implementation of the rights and 
     protections under the CAA to propose and issue rules relating 
     to amicus filings and reconsideration in all matters before 
     the Board as part of a rulemaking under section 303 of the 
     Act.
       (3) Arbitral awards on adverse actions
       The Board also agrees with the commenter who suggested the 
     deletion of section 2425.3(b), a provision that precludes the 
     FLRA's review of arbitration awards involving certain adverse 
     actions. Under chapter 71, Congress generally provided for 
     the review of arbitration awards by the FLRA. However, for 
     awards relating to matters in which an employee has an option 
     of either filing an appeal with the Merit Systems Protection 
     Board (or another adjudicative body) or of filing a grievance 
     under a negotiated grievance procedure, Congress provided for 
     judicial review of the award under the same standards of 
     review that would be accorded to a decision of the MSPB or 
     another appellate body. Therefore, there is a symmetrical 
     framework for the review of arbitration awards involving 
     certain adverse actions in the general Federal civil service 
     in which decisions on such matters, whether made by an 
     arbitrator or an adjudicative body, are subject to the same 
     judicial review. In contrast, there is no such symmetry of 
     review under the CAA because legislative branch employees 
     have no recourse to the MSPB or other similar administrative 
     agencies and there is no judicial review of arbitrators' 
     awards. If section 2425.3(b) were not deleted, employees and 
     employing offices under the CAA would be deprived of a forum 
     for review of arbitration awards involving certain adverse 
     actions. Accordingly, the Board concludes that there is 
     good cause to modify the FLRA's regulations by deleting 
     section 2425.3(b).
       (4) Consultation rights
       Under section 2426.1(a) of the FLRA's regulations, an 
     agency or an agency's primary national subdivision shall 
     accord national consultation rights to a labor organization 
     that ``[h]olds exclusive recognition for either: (i) Ten 
     percent (10%) or more of the total number of civilian 
     personnel employed by the agency and the non-appropriated 
     fund Federal instrumentalities under its jurisdiction, 
     excluding foreign nationals; or (ii) 3,500 or more employees 
     of the agency.'' The Board has determined that the 10% 
     threshold requirement should not be modified for good cause, 
     as one commenter suggested. The Board agrees with the 
     commenter that the small size of many employing offices in 
     the legislative branch must be considered. However, the FLRA 
     considered 10% of the employees of an agency or primary 
     national subdivision to be a significant enough proportion of 
     the employee complement to allow for meaningful 
     consultations, no matter the size of the agency or the number 
     of its employees. No convincing reason has been provided by 
     the commenter why the FLRA's judgment is not workable here, 
     or why there should be a different threshold requirement for 
     small legislative branch employing offices from that 
     applicable to small executive branch agencies.
       By contrast, the same concern for the small size of many 
     employing offices has prompted the Board to conclude that 
     good cause exists to modify the alternate threshold 
     requirement--i.e., the requirement that a

[[Page H5157]]

     labor organization hold exclusive recognition of 3,500 or 
     more of an agency's employees in order to be accorded 
     national consultation rights. Although the Board has been 
     unable through its research to determine the reasoning of the 
     FLRA in choosing the number 3,500 as a threshold requirement, 
     the number corresponds to the considerable size of many of 
     the executive branch agencies. Because none of the employing 
     offices has as many as 35,000 employees, the 3,500 employee 
     threshold is irrelevant in light of the existence of the 
     other threshold requirement, discussed above, of 10% of the 
     employee complement. The Board thus finds that it is 
     unworkable in this context and that there is good cause to 
     delete it.
       Section 2426.11(a) requires that ``[a]n agency shall accord 
     consultation rights on Government-wide rules or regulations 
     to a labor organization that . . . [h]olds exclusive 
     recognition for 3,500 or more employees.'' The Board has 
     determined that this threshold requirement should also be 
     deleted for good cause, since many of the employing offices 
     in the legislative branch are considerably smaller than 
     executive branch agencies. However, once this requirement is 
     omitted, there is no other requirement in the regulations by 
     which to determine whether consultation rights on Government-
     wide rules or regulations should be granted to a labor 
     organization. Therefore, the Board has concluded that the 10% 
     threshold requirement should be employed in this section as 
     well. The 10% figure is used as an alternate criterion to 
     3,500 in according national consultation rights, and it is an 
     appropriate standard to use for according consultation rights 
     on Government-wide regulations as well.
       (5) Enforcement of Decisions of the Assistant Secretary of 
           Labor
       As noted above, one commenter asserted that part 2428 of 
     the FLRA's regulations is inapplicable under the CAA and 
     should be omitted from the Board's regulations. Part 2428 of 
     the FLRA's regulations provides a procedure for the Assistant 
     Secretary of Labor for Labor-Management Relations to petition 
     the FLRA to enforce decisions and orders of the Assistant 
     Secretary with respect to labor organization conduct.
       The Board has concluded that, although the Assistant 
     Secretary has no enforcement authority over covered employing 
     offices or covered employees, nothing in the CAA removes the 
     Assistant Secretary of Labor's authority to regulate the 
     conduct of labor organizations, even those that exclusively 
     represent legislative branch employees. Indeed, 5 U.S.C. 
     7120(d) authorizes the Assistant Secretary of Labor for 
     Labor-Management Relations to regulate the conduct of labor 
     organizations and is specifically incorporated into the CAA. 
     Further, nothing in the CAA would preclude the Assistant 
     Secretary from petitioning the Board to enforce a decision 
     and order involving a labor organization under the 
     jurisdiction of the CAA. In this regard, the FLRA promulgated 
     part 2428 as part of its authority under section 7105 of 
     chapter 71 to ``take such actions as are necessary and 
     appropriate to effectively administer the provisions'' of 
     chapter 71. Under the CAA, the Board has specifically been 
     granted the same authority to administer the provisions of 
     chapter 71 as applied by the CAA. Accordingly, there is not 
     good cause for the Board to omit part 2428 in its entirety or 
     to decline to permit the Assistant Secretary to petition the 
     Board in accordance with the procedures set forth therein.
       However, the Board proposes not to adopt section 2428.3(a), 
     which would require the Board to enforce any decision or 
     order of the Assistant Secretary unless it is ``arbitrary and 
     capricious or based upon manifest disregard of the law.'' In 
     light of section 225(f)(3) of the CAA, which states that the 
     CAA does not authorize executive branch enforcement of the 
     Act, the Board should not adopt a provision that would 
     require the Board to defer to decisions of an executive 
     branch agency. Accordingly, the Board has modified the 
     provisions of part 2428 by omitting section 2428.3(a).
       (6) Production of evidence in pre-election investigatory 
           hearings
       As noted in section I.B.2. above, section 7132 of chapter 
     71, which authorizes the issuance of subpoenas by various 
     FLRA officials, was not made applicable by the CAA. Moreover, 
     as pre-election investigatory hearings are not hearings that 
     are conducted under section 405 of the CAA, subpoenas for 
     documents or witnesses in such pre-election proceedings are 
     not available under the CAA. Nonetheless, in order to 
     properly decide disputed representation issues and 
     effectively implement section 220 of the CAA, a complete 
     investigatory record comparable to that developed by the FLRA 
     under chapter 71 is necessary. Accordingly, there is good 
     cause to modify section 2422.18 of the FLRA's regulations in 
     order to ensure that such a record is made in the absence of 
     the availability of subpoenas. To this end, the Board is 
     specifically proposing the inclusion of section 2422.18(d), 
     which provides that the parties have an obligation to produce 
     existing documents and witnesses for the pre-election 
     investigatory hearing in accordance with the instructions of 
     the Executive Director; and the Board is further proposing 
     that a willful failure to comply with such instructions may 
     in appropriate circumstances result in an adverse inference 
     being drawn on the issue related to the evidence sought.
       (7) Selection of the unfair labor practice procedure or the 
           negotiability procedure
       The Board has determined that there is also good cause to 
     delete the concluding sentence of sections 2423.5 and 2424.5 
     of the FLRA's regulations because, in the context of the CAA, 
     they would serve improperly to deprive judicial review in 
     certain circumstances. Generally, when an employing office 
     asserts it has no duty to bargain over a proposal, a labor 
     organization may seek a Board determination on the issue 
     either through an unfair labor practice proceeding or a 
     negotiability proceeding. However, the concluding 
     sentences of the referenced regulations preclude a labor 
     organization from filing an unfair labor practice charge 
     in cases that solely involve an employing office's 
     allegation that the duty to bargain in good faith does not 
     extend to the matter proposed to be bargained and that do 
     not involve actual or contemplated changes in conditions 
     of employment. In such cases, those sentences of the 
     regulations provide that a labor organization may only 
     file a petition for review of a negotiability issue.
       Unlike chapter 71, the CAA does not provide for direct 
     judicial review of Board decisions and orders on petitions 
     for review of negotiability issues. Rather, judicial review 
     of Board determinations as to the negotiability of collective 
     bargaining proposals is only available through an unfair 
     labor practice proceeding involving a dispute over an 
     employing office's duty to bargain. Accordingly, if sections 
     2423.5 and 2424.5 were not modified, a labor organization 
     would, in certain circumstances, be precluded from electing 
     to file an unfair labor practice charge and possibly 
     obtaining judicial review of a Board decision. Rather, the 
     labor organization would be required to file a petition for 
     review of the negotiability issue and any unfavorable 
     decision would be unreviewable. The Board concludes that it 
     would be more effective for the implementation of the rights 
     and protections under section 220 to delete the two specified 
     sentences, thereby allowing a labor organization to use the 
     unfair labor practice procedures in all circumstances.
       (8) Official time
       Section 2429.13 of the FLRA's regulations requires 
     employing offices to grant ``official time'' to employees 
     when the employees, participation in investigations or 
     hearings is deemed necessary by hearing officers or Office 
     officials. The Board has determined that section 2429.13 of 
     the FLRA's regulations should be modified by striking the 
     last sentence, which would require the payment by employing 
     offices of transportation and per diem expenses associated 
     with employees, participation in investigations or hearings 
     on official time. The Board finds good cause to modify the 
     provision in light of the decision of the United States 
     Supreme Court in Bureau of Alcohol, Tobacco and Firearms v. 
     Federal Labor Relations Authority, 464 U.S. 89, 104 S.Ct. 439 
     (1983), in which the Supreme Court held that the FLRA had 
     exceeded its authority by requiring federal agencies to pay 
     such per diem allowances and travel expenses. This regulatory 
     requirement has been authoritatively and finally invalidated 
     by the Supreme Court and thus has no applicability under the 
     laws that have been incorporated by the CAA.
       (9) The Board's exercise of the authorities of the Federal 
           Service Impasses Panel
       Section 2470 of the FLRA's regulations defines the Federal 
     Service Impasses Panel as all members of the Panel or a 
     quorum thereof and thus permits formal actions to be taken on 
     behalf of the Panel by less than the Panel's full complement 
     of members. The Federal Service Impasses Panel is composed of 
     seven members. The Board, which will exercise the authorities 
     of the Panel pursuant to section 220(c)(4) of the CAA, is a 
     five-member body. It is the Board's determination that it 
     will be more effective for the implementation of section 
     220(c)(4) to provide for the full Board, rather than a quorum 
     thereof, to carry out its authorities under that section. 
     Section 2470 of the regulation has been modified accordingly.
       (10) Conflict of Interest
       As noted above, one commenter asserted that sections 2422.7 
     and 2422.23 of the FLRA's regulations should be modified 
     pursuant to section 220(d)(2)(B). The two referenced sections 
     of the FLRA's regulations provide, respectively, that an 
     employing office may be directed to post a notice advising 
     affected employees of the filing of a representation petition 
     and that an employing office will post a notice of election 
     when an election is to be conducted. In both instances the 
     notices, which in the context of the CAA will be prepared by 
     the Office of Compliance, must be posted in places where 
     notices are normally posted for the affected employees or 
     they may be distributed in a manner by which notices are 
     normally distributed. The commenter urges that these 
     regulatory provisions be modified to prohibit the publication 
     of any material relating to a labor organization in any area 
     open to the public. In support of the proposed modification, 
     the commenter states only that display of such material in 
     public view creates, at the very least, an appearance of a 
     conflict of interest insofar as it may appear that Congress 
     is unduly influenced by particular labor organizations.
       In the ANPR, the Board requested commenters to fully and 
     specifically describe the conflict of interest or appearance 
     thereof that they believe would exist were pertinent FLRA 
     regulations not modified and to explain the necessity for 
     avoiding the asserted

[[Page H5158]]

     conflict or appearance of conflict. The Board further asked 
     commenters to explain how they interpret 220(d)(2)(B) and, in 
     doing so, identify the factual and interpretive materials 
     upon which they are relying. The commenter has not discussed 
     section 220(d)(2)(B) or explained why the proposed 
     modification, a specific prohibition on posting an Office of 
     Compliance notice in a public area, is necessary to avoid an 
     appearance of conflict; indeed, the commenter has not 
     explained how the posting of a notice announcing the filing 
     of a petition or an upcoming election would create the 
     appearance of undue influence asserted by the commenter.
       In the Board's view, no appearance of conflict of interest 
     or undue influence is created by an employing office posting 
     a notice, prepared by the Office of Compliance, advising 
     covered employees of a pending petition or an election under 
     a statute that Congress has specifically applied to itself, 
     similar provisions of which apply in the private and public 
     sectors. Nothing in the FLRA's regulations requires that 
     notices be posted in public areas; the referenced notices 
     must only be posted or distributed in the manner that other 
     information affecting employees is posted or distributed. 
     Moreover, since the notices are prepared by the Office of 
     Compliance, which is an independent office in the legislative 
     branch, no reasonable person could even begin to find undue 
     influence from the posting itself.
       The Board thus concludes that, contrary to the commenter's 
     suggestion, it is not necessary to modify sections 2422.7 and 
     2422.23 of the FLRA's regulations to avoid a conflict of 
     interest or appearance of conflict of interest. The Board 
     therefore proposes to adopt those provisions with only 
     technical changes in nomenclature.

                         II. Method of Approval

       The Board recommends that (1) the version of the proposed 
     regulations that shall apply to the Senate and employees of 
     the Senate be approved by the Senate by resolution; (2) the 
     version of the proposed regulations that shall apply to the 
     House of Representatives and employees of the House of 
     Representatives be approved by the House of Representatives 
     by resolution; and (3) the version of the proposed 
     regulations that shall apply to other covered employees 
     and employing offices be approved by the Congress by 
     concurrent resolution.
       Signed at Washington, D.C., on this 14th day of May, 1996.

                                                Glen D. Nager,

                                               Chair of the Board,
                                             Office of Compliance.

                              Subchapter C

     2420  Purpose and scope
     2421  Meaning of terms as used in this subchapter
     2422  Representation proceedings
     2423  Unfair labor practice proceedings
     2424  Expedited review of negotiability issues
     2425  Review of arbitration awards
     2426  National consultation rights and consultation rights on 
         Government-wide rules or regulations
     2427  General statements of policy or guidance
     2428  Enforcement of Assistant Secretary standards of conduct 
         decisions and orders
     2429  Miscellaneous and general requirements

                              Subchapter D

     2470  General
     2471  Procedures of the Board in impasse proceedings

                              Subchapter C

                      PART 2420--PURPOSE AND SCOPE

     Sec. 2420.1  Purpose and scope.
       The regulations contained in this subchapter are designed 
     to implement the provisions of chapter 71 of title 5 of the 
     United States Code, as applied by section 220 of the 
     Congressional Accountability Act (CAA). They prescribe the 
     procedures, basic principles or criteria under which the 
     Board and the General Counsel, as applicable, will:
       (a) Determine the appropriateness of units for labor 
     organization representation under 5 U.S.C. 7112, as applied 
     by the CAA;
       (b) Supervise or conduct elections to determine whether a 
     labor organization has been selected as an exclusive 
     representative by a majority of the employees in an 
     appropriate unit and otherwise administer the provisions of 5 
     U.S.C. 7111, as applied by the CAA, relating to the according 
     of exclusive recognition to labor organizations;
       (c) Resolve issues relating to the granting of national 
     consultation rights under 5 U.S.C. 7113, as applied by the 
     CAA;
       (d) Resolve issues relating to determining compelling need 
     for employing office rules and regulations under 5 U.S.C. 
     7117(b), as applied by the CAA;
       (e) Resolve issues relating to the duty to bargain in good 
     faith under 5 U.S.C. 7117(c), as applied by the CAA;
       (f) Resolve issues relating to the granting of consultation 
     rights with respect to conditions of employment under 5 
     U.S.C. 7117(d), as applied by the CAA;
       (g) Conduct hearings and resolve complaints of unfair labor 
     practices under 5 U.S.C. 7118, as applied by the CAA;
       (h) Resolve exceptions to arbitrators' awards under 5 
     U.S.C. 7122, as applied by the CAA; and
       (i) Take such other actions as are necessary and 
     appropriate effectively to administer the provisions of 
     chapter 71 of title 5 of the United States Code, as applied 
     by the CAA.

         PART 2421--MEANING OF TERMS AS USED IN THIS SUBCHAPTER

     Sec.
     2421.1  Act; CAA.
     2421.2  Chapter 71.
     2421.3  General Definitions.
     2421.4  National consultation rights; consultation rights on 
         Government-wide rules or regulations; exclusive 
         recognition; unfair labor practices.
     2421.5  Activity.
     2421.6  Primary national subdivision.
     2421.7  Executive Director.
     2421.8  Hearing Officer.
     2421.9  Party.
     2421.10  Intervenor.
     2421.11  Certification.
     2421.12  Appropriate unit.
     2421.13  Secret ballot.
     2421.14  Showing of interest.
     2421.15  Regular and substantially equivalent employment.
     2421.16  Petitioner.
     2421.17  Eligibility Period.
     2421.18  Election Agreement.
     2421.19  Affected by Issues raised.
     2421.20  Determinative challenged ballots.
     Sec. 2421.1  Act; CAA.
       The terms ``Act'' and ``CAA'' mean the Congressional 
     Accountability Act of 1995 (P.L. 104-1, 109 Stat. 3, 2 U.S.C. 
     Sec. Sec. 1301-1438).
     Sec. 2421.2  Chapter 71.
       The term ``chapter 71'' means chapter 71 of title 5 of the 
     United States Code.
     Sec. 2421.3  General Definitions.
       (a) The term ``person'' means an individual, labor 
     organization or employing office.
       (b) Except as noted in subparagraph (3) of this subsection, 
     the term ``employee'' means an individual--
       (1) Who is a current employee, applicant for employment, or 
     former employee of: the House of Representatives; the Senate; 
     the Capitol Guide Service; the Capitol Police; 
     the Congressional Budget Office; the Office of the 
     Architect of the Capitol; the Office of the Attending 
     Physician; the Office of Compliance; or the Office of 
     Technology Assessment; or
       (2) Whose employment in an employing office has ceased 
     because of any unfair labor practice under section 7116 of 
     title 5 of the United States Code, as applied by the CAA, and 
     who has not obtained any other regular and substantially 
     equivalent employment as determined under regulations 
     prescribed by the Board, but does not include----
       (i) An alien or noncitizen of the United States who 
     occupies a position outside of the United States;
       (ii) A member of the uniformed services;
       (iii) A supervisor or a management official or;
       (iv) Any person who participates in a strike in violation 
     of section 7311 of title 5 of the United States Code, as 
     applied the CAA.
       (3) For the purpose of determining the adequacy of a 
     showing of interest or eligibility for consultation rights, 
     except as required by law, applicants for employment and 
     former employees are not considered employees.
       (c) The term ``employing office'' means--
       (1) The personal office of a Member of the House of 
     Representatives or of a Senator;
       (2) A committee of the House of Representatives or the 
     Senate or a joint committee;
       (3) Any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate; or
       (4) The Capitol Guide Board, the Capitol Police Board, the 
     Congressional Budget Office, the Office of the Architect of 
     the Capitol, the Office of the Attending Physician, the 
     Office of Compliance, and the Office of Technology 
     Assessment.
       (d) The term ``labor'' organization means an organization 
     composed in whole or in part of employees, in which employees 
     participate and pay dues, and which has as a purpose the 
     dealing with an employing office concerning grievances and 
     conditions of employment, but does not include--
       (1) An organization which, by its constitution, or 
     otherwise, denies membership because of race, color, creed, 
     national origin, sex, age, preferential or nonpreferential 
     civil service status, political affiliation, marital status, 
     or handicapping condition;
       (2) An organization which advocates the overthrow of the 
     constitutional form of government of the United States;
       (3) An organization sponsored by an employing office; or
       (4) An organization which participates in the conduct or a 
     strike against the Government or any agency thereof or 
     imposes a duty or obligation to conduct, assist, or 
     participate in such a strike.
       (e) The term ``dues'' means dues, fees, and assessments.
       (f) The term ``Board'' means the Board of Directors of the 
     Office of Compliance.
       (g) The term ``collective bargaining agreement'' means an 
     agreement entered into as a result of collective bargaining 
     pursuant to the provisions of chapter 71 of title 5 of the 
     United States Code, as applied by the CAA.
       (h) The term ``grievance'' means any complaint--
       (1) By any employee concerning any matter relating to the 
     employment of the employee;
       (2) By any labor organization concerning any matter 
     relating to the employment of any employee; or

[[Page H5159]]

       (3) By any employee, labor organization, or employing 
     office concerning--
       (i) The effect or interpretation, or a claim of breach, of 
     a collective bargaining agreement; or
       (ii) Any claimed violation, misinterpretation, or 
     misapplication of any law, rule, or regulation affecting 
     conditions of employment.
       (i) The term ``supervisor'' means an individual employed by 
     an employing office having authority in the interest of the 
     employing office to hire, direct, assign, promote, reward, 
     transfer, furlough, layoff, recall, suspend, discipline, or 
     remove employees, to adjust their grievances, or to 
     effectively recommend such action, if the exercise of the 
     authority is not merely routine or clerical in nature, but 
     requires the consistent exercise of independent judgment, 
     except that, with respect to any unit which includes 
     firefighters or nurses, the term ``supervisor'' includes only 
     those individuals who devote a preponderance of their 
     employment time to exercising such authority.
       (j) The term ``management official'' means an individual 
     employed by an employing office in a position the duties and 
     responsibilities of which require or authorize the individual 
     to formulate, determine, or influence the policies of the 
     employing office.
       (k) The term ``collective bargaining'' means the 
     performance of the mutual obligation of the representative of 
     an employing office and the exclusive representative of 
     employees in an appropriate unit in the employing office to 
     meet at reasonable times and to consult and bargain in a 
     good-faith effort to reach agreement with respect to the 
     conditions of employment affecting such employees and to 
     execute, if requested by either party, a written document 
     incorporating any collective bargaining agreement reached, 
     but the obligation referred to in this paragraph does not 
     compel either party to agree to a proposal or to make a 
     concession.
       (l) The ``term confidential employee'' means an employee 
     who acts in a confidential capacity with respect to an 
     individual who formulates or effectuates management policies 
     in the field of labor-management relations.
       (m) The term ``conditions of employment'' means personnel 
     policies, practices, and matters, whether established by 
     rule, regulation, or otherwise, affecting working conditions, 
     except that such term does not include policies, practices, 
     and matters--
       (1) Relating to political activities prohibited under 
     subchapter III of chapter 73 of title 5 of the United States 
     Code, as applied by the CAA;
       (2) Relating to the classification of any position; or
       (3) To the extent such matters are specifically provided 
     for by Federal statute.
       (n) The term ``professional employee'' means--
       (1) An employee engaged in the performance of work--
       (i) Requiring knowledge of an advanced type in a field of 
     science or learning customarily acquired by a prolonged 
     course of specialized intellectual instruction and study in 
     an institution of higher learning or a hospital (as 
     distinguished from knowledge acquired by a general academic 
     education, or from an apprenticeship, or from training in the 
     performance of routine mental, manual, mechanical, or 
     physical activities);
       (ii) Requiring the consistent exercise of discretion and 
     judgment in its performance;
       (iii) Which is predominantly intellectual and varied in 
     character (as distinguished from routine mental, manual, 
     mechanical, or physical work); and
       (iv) Which is of such character that the output produced or 
     the result accomplished by such work cannot be standardized 
     in relation to a given period of time; or
       (2) An employee who has completed the courses of 
     specialized intellectual instruction and study described in 
     subparagraph (1)(i) of this paragraph and is performing 
     related work under appropriate direction and guidance to 
     qualify the employee as a professional employee described in 
     subparagraph (1) of this paragraph.
       (o) The term ``exclusive representative'' means any labor 
     organization which is certified as the exclusive 
     representative of employees in an appropriate unit pursuant 
     to section 7111 of title 5 of the United States Code, as 
     applied by the CAA.
       (p) The term ``firefighter'' means any employee engaged in 
     the performance of work directly connected with the control 
     and extinguishment of fires or the maintenance and use of 
     firefighting apparatus and equipment.
       (q) The term ``United States'' means the 50 states, the 
     District of Columbia, the Commonwealth of Puerto Rico, Guam, 
     the Virgin Islands, the Trust Territory of the Pacific 
     Islands, and any territory or possession of the United 
     States.
       (r) The term ``General Counsel'' means the General Counsel 
     of the Office of Compliance.
       (s) The term ``Assistant Secretary'' means the Assistant 
     Secretary of Labor for Labor-Management Relations.
     Sec. 2421.4 National consultation rights; consultation rights 
         on Government-wide rules or regulations; exclusive 
         recognition; unfair labor practices.
       (a)(1) The term ``national consultation rights'' means that 
     a labor organization that is the exclusive representative of 
     a substantial number of the employees of the employing 
     office, as determined in accordance with criteria prescribed 
     by the Board, shall--
       (i) Be informed of any substantive change in conditions of 
     employment proposed by the employing office; and
       (ii) Be permitted reasonable time to present its views and 
     recommendations regarding the changes.
       (2) National consultation rights shall terminate when the 
     labor organization no longer meets the criteria prescribed by 
     the Board. Any issue relating to any labor organization's 
     eligibility for, or continuation of, national consultation 
     rights shall be subject to determination by the Board.
       (b)(1) The term ``consultation rights on Government-wide 
     rules or regulations'' means that a labor organization which 
     is the exclusive representative of a substantial number of 
     employees of an employing office determined in accordance 
     with criteria prescribed by the Board, shall be granted 
     consultation rights by the employing office with respect to 
     any Government-wide rule or regulation issued by the 
     employing office effecting any substantive change in any 
     condition of employment. Such consultation rights shall 
     terminate when the labor organization no longer meets the 
     criteria prescribed by the Board. Any issue relating to a 
     labor organizations eligibility for, or continuation of, such 
     consultation rights shall be subject to determination by the 
     Board.
       (2) A labor organization having consultation rights under 
     paragraph (1) of this subsection shall--
       (i) Be informed of any substantive change in conditions of 
     employment proposed by the employing office; and
       (ii) shall be permitted reasonable time to present its 
     views and recommendations regarding the changes.
       (3) If any views or recommendations are presented under 
     paragraph (2) of this subsection to an employing office by 
     any labor organization--
       (i) The employing office shall consider the views or 
     recommendations before taking final action on any matter with 
     respect to which the views or recommendations are presented; 
     and
       (ii) The employing office shall provide the labor 
     organization a written statement of the reasons for taking 
     the final action.
       (c) The term ``exclusive recognition'' means that a labor 
     organization has been selected as the sole representative, in 
     a secret ballot election, by a majority of the employees in 
     an appropriate unit who cast valid ballots in an election.
       (d) The term ``unfair labor practices'' means--
       (1) Any of the following actions taken by an employing 
     office--
       (i) Interfering with, restraining, or coercing any employee 
     in the exercise by the employee of any right under chapter 
     71, as applied by the CAA;
       (ii) Encouraging or discouraging membership in any labor 
     organization by discrimination in connection with hiring, 
     tenure, promotion, or other condition of employment;
       (iii) Sponsoring, controlling, or otherwise assisting any 
     labor organization, other than to furnish, upon request, 
     customary and routine services and facilities if the services 
     and facilities are also furnished on an impartial basis to 
     other labor organizations having equivalent status;
       (iv) Disciplining or otherwise discriminating against an 
     employee because the employee has filed a complaint, 
     affidavit, or petition, or has given any information or 
     testimony under chapter 71, as applied by the CAA;
       (v) Refusing to consult or negotiate in good faith with a 
     labor organization as required by chapter 71, as applied by 
     the CAA;
       (vi) Failing or refusing to cooperate in impasse procedures 
     and impasse decisions as required by chapter 71, as applied 
     by the CAA;
       (vii) Enforcing any rule or regulation (other than a rule 
     or regulation implementing section 2302 of this title) which 
     is in conflict with any applicable collective bargaining 
     agreement if the agreement was in effect before the date the 
     rule or regulation was prescribed; or
       (viii) Otherwise failing or refusing to comply with any 
     provision of chapter 71, as applied by the CAA;
       (2) Any of the following actions taken by a labor 
     organization--
       (i) Interfering with, restraining, or coercing any employee 
     in the exercise by the employee of any right under this 
     chapter;
       (ii) Causing or attempting to cause an employing office to 
     discriminate against any employee in the exercise by the 
     employee of any right under this chapter;
       (iii) Coercing, disciplining, fining, or attempting to 
     coerce a member of the labor organization as punishment, 
     reprisal, or for the purpose of hindering or impeding the 
     member's work performance or productivity as an employee or 
     the discharge of the members duties as an employee;
       (iv) Discriminating against an employee with regard to the 
     terms or conditions of membership in the labor organization 
     on the basis of race, color, creed, national origin, sex, 
     age, preferential or nonpreferential civil service status, 
     political affiliation, marital status, or handicapping 
     condition;
       (v) Refusing to consult or negotiate in good faith with an 
     employing office as required by chapter 71, as applied by the 
     CAA;
       (vi) Failing or refusing to cooperate in impasse procedures 
     and impasse decisions as required by chapter 71, as applied 
     by the CAA;
       (vii)(A) Calling, or participating in, a strike, work 
     stoppage, or slowdown, or picketing of an employing office in 
     a labor-management dispute if such picketing interferes with 
     an employing office's operations; or

[[Page H5160]]

       (B) Condoning any activity described in subparagraph (A) of 
     this paragraph by failing to take action to prevent or stop 
     such activity; or
       (viii) Otherwise failing or refusing to comply with any 
     provision of chapter 71, as applied by the CAA;
       (3) Denial of membership by an exclusive representative to 
     any employee in the appropriate unit represented by such 
     exclusive representative except for failure--
       (i) To meet reasonable occupational standards uniformly 
     required for admission, or
       (ii) To tender dues uniformly required as a condition of 
     acquiring and retaining membership.
     Sec. 2421.5  Activity.
       The term ``activity'' means any facility, organizational 
     entity, or geographical subdivision or combination thereof, 
     of any employing office.
     Sec. 2421.6  Primary national subdivision.
       ``Primary national subdivision'' of an employing office 
     means a first-level organizational segment which has 
     functions national in scope that are implemented in field 
     activities.
     Sec. 2421.7  Executive Director.
       ``Executive Director'' means the Executive Director of the 
     Office of Compliance.
     Sec. 2421.8  Hearing Officer.
       The term ``Hearing Officer'' means any individual 
     designated by the Executive Director to preside over a 
     hearing conducted pursuant to section 405 of the CAA on 
     matters within the Office's jurisdiction, including a hearing 
     arising in cases under 5 U.S.C. 7116, as applied by the CAA, 
     and any other such matters as may be assigned.
     Sec. 2421.9  Party.
       The term ``party'' means:
       (a) Any labor organization, employing office or employing 
     activity or individual filing a charge, petition, or request;
       (b) Any labor organization or employing office or activity.
       (1) Named as--
       (i) A charged party in a charge,
       (ii) A respondent in a complaint, or
       (iii) An employing office or activity or an incumbent labor 
     organization in a petition.
       (2) Whose intervention in a proceeding has been permitted 
     or directed by the Board; or
       (3) Who participated as a party.
       (i) In a matter that was decided by an employing office 
     head under 5 U.S.C. 7117, as applied by the CAA, or
       (ii) In a matter where the award of an arbitrator was 
     issued; and
       (c) The General Counsel, or the General Counsel's 
     designated representative, in appropriate proceedings.
     Sec. 2421.10  Intervenor.
       The term ``intervenor'' means a party in a proceeding whose 
     intervention has been permitted or directed by the Board, its 
     agents or representatives.
     Sec. 2421.11  Certification.
       The term ``certification'' means the determination by the 
     Board, its agents or representatives, of the results of an 
     election, or the results of a petition to consolidate 
     existing exclusively recognized units.
     Sec. 2421.12  Appropriate unit.
       The term ``appropriate unit'' means that grouping of 
     employees found to be appropriate for purposes of exclusive 
     recognition under 5 U.S.C. 7111, as applied by the CAA, and 
     for purposes of allotments to representatives under 5 U.S.C. 
     7115(c), as applied by the CAA, and consistent with the 
     provisions of 5 U.S.C. 7112, as applied by the CAA.
     Sec. 2421.13  Secret ballot.
       The term ``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, except in that instance in which any determinative 
     challenged ballot is opened.
     Sec. 2421.14  Showing of interest.
       The term ``showing of interest'' means evidence of 
     membership in a labor organization; employees' signed and 
     dated authorization cards or petitions authorizing a labor 
     organization to represent them for purposes of exclusive 
     recognition; allotment of dues forms executed by an employee 
     and the labor organization's authorized official; current 
     dues records; an existing or recently expired agreement; 
     current certification; employees' signed and dated petitions 
     or cards indicating that they no longer desire to be 
     represented for the purposes of exclusive recognition by the 
     currently certified labor organization; employees' signed and 
     dated petitions or cards indicating a desire that an election 
     be held on a proposed consolidation of units; or other 
     evidence approved by the Board.
     Sec. 2421.15  Regular and substantially equivalent 
         employment.
       The term ``regular and substantially equivalent 
     employment'' means employment that entails substantially the 
     same amount of work, rate of pay, hours, working conditions, 
     location of work, kind of work, and seniority rights, if any, 
     of an employee prior to the cessation of employment in an 
     employing office because of any unfair labor practice under 5 
     U.S.C. 7116, as applied by the CAA.
     Sec. 2421.16  Petitioner.
       ``Petitioner'' means the party filing a petition under Part 
     2422 of this Subchapter.
     Sec. 2421.17  Eligibility period.
       The term ``eligibility period'' means the payroll period 
     during which an employee must be in an employment status with 
     an employing office or activity in order to be eligible to 
     vote in a representation election under Part 2422 of this 
     Subchapter.
     Sec. 2421.18  Election agreement.
       The term ``election agreement'' means an agreement under 
     Part 2422 of this Subchapter signed by all the parties, and 
     approved by the Board, the Executive Director, or any other 
     individual designated by the Board, concerning the details 
     and procedures of a representation election in an appropriate 
     unit.
     Sec. 2421.19  Affected by issues raised.
       The phrase ``affected by issues raised'', as used in Part 
     2422, should be construed broadly to include parties and 
     other labor organizations, or employing offices or activities 
     that have a connection to employees affected by, or questions 
     presented in, a proceeding.
     Sec. 2421.20  Determinative challenged ballots.
       ``Determinative challenged ballots'' are challenges that 
     are unresolved prior to the tally and sufficient in number 
     after the tally to affect the results of the election.

                 PART 2422--REPRESENTATION PROCEEDINGS

     Sec.
     2422.1  Purposes of a petition.
     2422.2  Standing to file a petition.
     2422.3  Contents of a petition.
     2422.4  Service requirements.
     2422.5  Filing petitions.
     2422.6  Notification of filing.
     2422.7  Posting notice of filing of a petition.
     2422.8  Intervention and cross-petitions.
     2422.9  Adequacy of showing of interest.
     2422.10  Validity of showing of interest.
     2422.11  Challenge to the status of a labor organization.
     2422.12  Timeliness of petitions seeking an election.
     2422.13  Resolution of issues raised by a petition.
     2422.14  Effect of withdrawal/dismissal.
     2422.15  Duty to furnish information and cooperate.
     2422.16  Election agreements or directed elections.
     2422.17  Notice of pre-election investigatory hearing and 
         prehearing conference.
     2422.18  Pre-election investigatory hearing procedures.
     2422.19  Motions.
     2422.20  Rights of parties at a pre-election investigatory 
         hearing.
     2422.21  Duties and powers of the Executive Director in the 
         conduct of the pre-election investigatory hearing.
     2422.22  Objections to the conduct of the pre-election 
         investigatory hearing.
     2422.23  Election procedures.
     2422.24  Challenged ballots.
     2422.25  Tally of ballots.
     2422.26  Objections to the election.
     2422.27  Determinative challenged ballots and objections.
     2422.28  Runoff elections.
     2422.29  Inconclusive elections.
     2422.30  Executive Director investigations, notices of pre-
         election investigatory hearings, and actions; Board 
         Decisions and Orders.
     2422.31  Application for review of an Executive Director 
         action.
     2422.32  Certifications and revocations.
     2422.33  Relief obtainable under Part 2423.
     2422.34  Rights and obligations during the pendency of 
         representation proceedings.
     Sec. 2422.1  Purposes of a petition.
       A petition may be filed for the following purposes:
       (a) Elections or Eligibility for dues allotment. To 
     request:
       (1)(i) An election to determine if employees in an 
     appropriate unit wish to be represented for the purpose of 
     collective bargaining by an exclusive representative; and/or
       (ii) A determination of eligibility for dues allotment in 
     an appropriate unit without an exclusive representative; or
       (2) An election to determine if employees in a unit no 
     longer wish to be represented for the purpose of collective 
     bargaining by an exclusive representative.
       (3) Petitions under this subsection must be accompanied by 
     an appropriate showing of interest.
       (b) Clarification or Amendment. To clarify, and/or amend:
       (1) A certification then in effect; and/or
       (2) Any other matter relating to representation.
       (c) Consolidation. To consolidate two or more units, with 
     or without an election, in an employing office and for which 
     a labor organization is the exclusive representative.
     Sec. 2422.2  Standing to file a petition.
       A representation petition may be filed by: an individual; a 
     labor organization; two or more labor organizations acting as 
     a joint-petitioner; an individual acting on behalf of any 
     employee(s); an employing office or activity; or a 
     combination of the above: provided, however, that (a) only a 
     labor organization has standing to file a petition pursuant 
     to section 2422.1(a)(1); (b) only an individual has standing 
     to file a petition pursuant to section 2422.1(a)(2); and (c) 
     only an employing office or a labor organization may file a 
     petition pursuant to section 2422.1(b) or (c).
     Sec. 2422.3  Contents of a petition.
       (a) What to file. A petition must be filed on a form 
     prescribed by the Board and contain the following 
     information:

[[Page H5161]]

       (1) The name and mailing address for each employing office 
     or activity affected by issues raised in the petition, 
     including street number, city, state and zip code.
       (2) The name, mailing address and work telephone number of 
     the contact person for each employing office or activity 
     affected by issues raised in the petition.
       (3) The name and mailing address for each labor 
     organization affected by issues raised in the petition, 
     including street number, city, state and zip code. If a labor 
     organization is affiliated with a national organization, the 
     local designation and the national affiliation should both be 
     included. If a labor organization is an exclusive 
     representative of any of the employees affected by issues 
     raised in the petition, the date of the certification and the 
     date any collective bargaining agreement covering the unit 
     will expire or when the most recent agreement did expire 
     should be included, if known.
       (4) The name, mailing address and work telephone number of 
     the contact person for each labor organization affected by 
     issues raised in the petition.
       (5) The name and mailing address for the petitioner, 
     including street number, city, state and zip code. If a labor 
     organization petitioner is affiliated with a national 
     organization, the local designation and the national 
     affiliation should both be included.
       (6) A description of the unit(s) affected by issues raised 
     in the petition. The description should generally indicate 
     the geographic locations and the classifications of the 
     employees included (or sought to be included) in, and 
     excluded (or sought to be excluded) from, the unit.
       (7) The approximate number of employees in the unit(s) 
     affected by issues raised in the petition.
       (8) A clear and concise statement of the issues raised by 
     the petition and the results the petitioner seeks.
       (9) A declaration by the person signing the petition, under 
     the penalties of the Criminal Code (18 U.S.C. 1001), that the 
     contents of the petition are true and correct to the best of 
     the person's knowledge and belief.
       (10) The signature, title, mailing address and telephone 
     number of the person filing the petition.
       (b) Compliance with 5 U.S.C. 7111(e), as applied by the 
     CAA. A labor organization/petitioner complies with 5 U.S.C. 
     7111(e), as applied by the CAA, by submitting to the 
     employing office or activity and to the Department of Labor a 
     roster of its officers and representatives, a copy of its 
     constitution and bylaws, and a statement of its objectives. 
     By signing the petition form, the labor organization/
     petitioner certifies that it has submitted these documents to 
     the employing activity or office and to the Department of 
     Labor.
       (c) Showing of interest supporting a representation 
     petition. When filing a petition requiring a showing of 
     interest, the petitioner must:
       (1) So indicate on the petition form;
       (2) Submit with the petition a showing of interest of not 
     less than thirty percent (30%) of the employees in the unit 
     involved in the petition; and
       (3) Include an alphabetical list of the names constituting 
     the showing of interest.
       (d) Petition seeking dues allotment. When there is no 
     exclusive representative, a petition seeking certification 
     for dues allotment shall be accompanied by a showing of 
     membership in the petitioner of not less than ten percent 
     (10%) of the employees in the unit claimed to be appropriate. 
     An alphabetical list of names constituting the showing of 
     membership must be submitted.
     Sec. 2422.4  Service requirements.
       Every petition, motion, brief, request, challenge, written 
     objection, or application for review shall be served on all 
     parties affected by issues raised in the filing. The service 
     shall include all documentation in support thereof, with the 
     exception of a showing of interest, evidence supporting 
     challenges to the validity of a showing of interest, and 
     evidence supporting objections to an election. The filer must 
     submit a written statement of service to the Executive 
     Director.
     Sec. 2422.5  Filing petitions.
       (a) Where to file. Petitions must be filed with the 
     Executive Director.
       (b) Number of copies. An original and two (2) copies of the 
     petition and the accompanying material must be filed with the 
     Executive Director.
       (c) Date of filing. A petition is filed when it is received 
     by the Executive Director.
     Sec. 2422.6  Notification of filing.
       (a) Notification to parties. After a petition is filed, the 
     Executive Director, on behalf of the Board, will notify any 
     labor organization, employing office or employing activity 
     that the parties have identified as being affected by issues 
     raised by the petition, that a petition has been filed with 
     the Office. The Executive Director, on behalf of the Board, 
     will also make reasonable efforts to identify and notify any 
     other party affected by the issues raised by the petition.
       (b) Contents of the notification. The notification will 
     inform the labor organization, employing office or employing 
     activity of:
       (1) The name of the petitioner;
       (2) The description of the unit(s) or employees affected by 
     issues raised in the petition; and,
       (3) A statement that all affected parties should advise the 
     Executive Director in writing of their interest in the issues 
     raised in the petition.
     Sec. 2422.7  Posting notice of filing of a petition.
       (a) Posting notice of petition. When appropriate, the 
     Executive Director, on behalf of the Board, after the filing 
     of a representation petition, will direct the employing 
     office or activity to post copies of a notice to all 
     employees in places where notices are normally posted for the 
     employees affected by issues raised in the petition and/or 
     distribute copies of a notice in a manner by which notices 
     are normally distributed.
       (b) Contents of notice. The notice shall advise affected 
     employees about the petition.
       (c) Duration of notice. The notice should be conspicuously 
     posted for a period of ten (10) days and not be altered, 
     defaced, or covered by other material.
     Sec. 2422.8  Intervention and cross-petitions.
       (a) Cross-petitions. A cross-petition is a petition which 
     involves any employees in a unit covered by a pending 
     representation petition. Cross-petitions must be filed in 
     accordance with this subpart.
       (b) Intervention requests and cross-petitions. A request to 
     intervene and a cross-petition, accompanied by any necessary 
     showing of interest, must be submitted in writing and filed 
     with the Executive Director before the pre-election 
     investigatory hearing opens, unless good cause is shown for 
     granting an extension. If no pre-election investigatory 
     hearing is held, a request to intervene and a cross-petition 
     must be filed prior to action being taken pursuant to 
     Sec. 2422.30.
       (c) Labor organization intervention requests. Except for 
     incumbent intervenors, a labor organization seeking to 
     intervene shall submit a statement that it has complied with 
     5 U.S.C. 7111(e), as applied by the CAA, and one of the 
     following:
       (1) A showing of interest of ten percent (10%) or more of 
     the employees in the unit covered by a petition seeking an 
     election, with an alphabetical list of the names of the 
     employees constituting the showing of interest; or
       (2) A current or recently expired collective bargaining 
     agreement covering any of the employees in the unit affected 
     by issues raised in the petition; or
       (3) Evidence that it is or was, prior to a reorganization, 
     the certified exclusive representative of any of the 
     employees affected by issues raised in the petition.
       (d) Incumbent. An incumbent exclusive representative, 
     without regard to the requirements of paragraph (c) of this 
     section, will be considered a party in any representation 
     proceeding raising issues that affect employees the incumbent 
     represents, unless it serves the Board, through the Executive 
     Director, with a written disclaimer of any representation 
     interest in the claimed unit.
       (e) Employing office. An employing office or activity will 
     be considered a party if any of its employees are affected by 
     issues raised in the petition.
       (f) Employing office or activity intervention. An employing 
     office or activity seeking to intervene in any representation 
     proceeding must submit evidence that one or more employees of 
     the employing office or activity may be affected by issues 
     raised in the petition.
     Sec. 2422.9  Adequacy of showing of interest.
       (a) Adequacy. Adequacy of a showing of interest refers to 
     the percentage of employees in the unit involved as required 
     by Sec. Sec. 2422.3 (c) and (d) and 2422.8(c)(1).
       (b) Executive Director investigation and action. The 
     Executive Director, on behalf of the Board, will conduct such 
     investigation as deemed appropriate. The Executive Director's 
     determination, on behalf of the Board, that the showing of 
     interest is adequate is final and binding and not subject to 
     collateral attack at a representation hearing or on appeal to 
     the Board. If the Executive Director determines, on behalf of 
     the Board, that a showing of interest is inadequate, the 
     Executive Director will dismiss the petition, or deny a 
     request for intervention.
     Sec. 2422.10  Validity of showing of interest.
       (a) Validity. Validity questions are raised by challenges 
     to a showing of interest on grounds other than adequacy.
       (b) Validity challenge. The Executive Director or any party 
     may challenge the validity of a showing of interest.
       (c) When and where validity challenges may be filed. Party 
     challenges to the validity of a showing of interest must be 
     in writing and filed with the Executive Director before the 
     pre-election investigatory hearing opens, unless good cause 
     is shown for granting an extension. If no pre-election 
     investigatory hearing is held, challenges to the validity of 
     a showing of interest must be filed prior to action being 
     taken pursuant to Sec. 2422.30.
       (d) Contents of validity challenges. Challenges to the 
     validity of a showing of interest must be supported with 
     evidence.
       (e) Executive Director investigation and action. The 
     Executive Director, on behalf of the Board, will conduct such 
     investigation as deemed appropriate. The Executive Director's 
     determination, on behalf of the Board, that a showing of 
     interest is valid is final and binding and is not subject to 
     collateral attack or appeal to the Board. If the Executive 
     Director finds, on behalf of the Board, that the showing of 
     interest is not valid, the Executive Director will dismiss 
     the petition or deny the request to intervene.
     Sec. 2422.11  Challenge to the status of a labor 
         organization.
       (a) Basis of challenge to labor organization status. The 
     only basis on which a challenge to the status of a labor 
     organization may be made is compliance with 5 U.S.C. 
     7103(a)(4), as applied by the CAA.
       (b) Format and time for filing a challenge. Any party 
     filing a challenge to the status of

[[Page H5162]]

     a labor organization involved in the processing of a petition 
     must do so in writing to the Executive Director before the 
     pre-election investigatory hearing opens, unless good cause 
     is shown for granting an extension. If no hearing is held, 
     challenges must be filed prior to action being taken pursuant 
     to Sec. 2422.30.
     Sec. 2422.12  Timeliness of petitions seeking an election.
       (a) Election bar. Where there is no certified exclusive 
     representative, a petition seeking an election will not be 
     considered timely if filed within twelve (12) months of a 
     valid election involving the same unit or a subdivision of 
     the same unit.
       (b) Certification bar. Where there is a certified exclusive 
     representative of employees, a petition seeking an election 
     will not be considered timely if filed within twelve (12) 
     months after the certification of the exclusive 
     representative of the employees in an appropriate unit. If a 
     collective bargaining agreement covering the claimed unit is 
     pending employing office head review under 5 U.S.C. 7114(c), 
     as applied by the CAA, or is in effect, paragraphs (c), (d), 
     or (e) of this section apply.
       (c) Bar during employing office head review. A petition 
     seeking an election will not be considered timely if filed 
     during the period of employing office head review under 5 
     U.S.C. 7114(c), as applied by the CAA. This bar expires upon 
     either the passage of thirty (30) days absent employing 
     office head action, or upon the date of any timely employing 
     office head action.
       (d) Contract bar where the contract is for three (3) years 
     or less. Where a collective bargaining agreement is in effect 
     covering the claimed unit and has a term of three (3) years 
     or less from the date it became effective, a petition seeking 
     an election will be considered timely if filed not more than 
     one hundred and five (105) and not less than sixty (60) days 
     prior to the expiration of the agreement.
       (e) Contract bar where the contract is for more than three 
     (3) years. Where a collective bargaining agreement is in 
     effect covering the claimed unit and has a term of more than 
     three (3) years from the date it became effective, a petition 
     seeking an election will be considered timely if filed not 
     more than one hundred and five (105) and not less than sixty 
     (60) days prior to the expiration of the initial three (3) 
     year period, and any time after the expiration of the initial 
     three (3) year period.
       (f) Unusual circumstances. A petition seeking an election 
     or a determination relating to representation matters may be 
     filed at any time when unusual circumstances exist that 
     substantially affect the unit or majority representation.
       (g) Premature extension. Where a collective bargaining 
     agreement with a term of three (3) years or less has been 
     extended prior to sixty (60) days before its expiration date, 
     the extension will not serve as a basis for dismissal of a 
     petition seeking an election filed in accordance with this 
     section.
       (h) Contract requirements. Collective bargaining 
     agreements, including agreements that go into effect under 5 
     U.S.C. 7114(c), as applied by the CAA, and those that 
     automatically renew without further action by the parties, do 
     not constitute a bar to a petition seeking an election under 
     this section unless a clear and unambiguous effective date, 
     renewal date where applicable, duration, and termination date 
     are ascertainable from the agreement and relevant 
     accompanying documentation.
     Sec. 2422.13  Resolution of issues raised by a petition.
       (a) Meetings prior to filing a representation petition. All 
     parties affected by the representation issues that may be 
     raised in a petition are encouraged to meet prior to the 
     filing of the petition to discuss their interests and narrow 
     and resolve the issues. If requested by all parties a 
     representative of the Office will participate in these 
     meetings.
       (b) Meetings to narrow and resolve the issues after the 
     petition is filed. After a petition is filed, the Executive 
     Director may require all affected parties to meet to narrow 
     and resolve the issues raised in the petition.
     Sec. 2422.14  Effect of withdrawal/dismissal.
       (a) Withdrawal/dismissal less than sixty (60) days before 
     contract expiration. When a petition seeking an election that 
     has been timely filed is withdrawn by the petitioner or 
     dismissed by the Executive Director or the Board less than 
     sixty (60) days prior to the expiration of an existing 
     agreement between the incumbent exclusive representative and 
     the employing office or activity or any time after the 
     expiration of the agreement, another petition seeking an 
     election will not be considered timely if filed within a 
     ninety (90) day period from either:
       (1) The date the withdrawal is approved; or
       (2) The date the petition is dismissed by the Executive 
     Director when no application for review is filed with the 
     Board; or
       (3) The date the Board rules on an application for review; 
     or
       (4) The date the Board issues a Decision and Order 
     dismissing the petition.
       Other pending petitions that have been timely filed under 
     this Part will continue to be processed.
       (b) Withdrawal by petitioner. A petitioner who submits a 
     withdrawal request for a petition seeking an election that is 
     received by the Executive Director after the notice of pre-
     election investigatory hearing issues or after approval of an 
     election agreement, whichever occurs first, will be barred 
     from filing another petition seeking an election for the same 
     unit or any subdivision of the unit for six (6) months from 
     the date of the approval of the withdrawal by the Executive 
     Director.
       (c) Withdrawal by incumbent. When an election is not held 
     because the incumbent disclaims any representation interest 
     in a unit, a petition by the incumbent seeking an election 
     involving the same unit or a subdivision of the same unit 
     will not be considered timely if filed within six (6) months 
     of cancellation of the election.
     Sec. 2422.15  Duty to furnish information and cooperate.
       (a) Relevant information. After a petition is filed, all 
     parties must, upon request of the Executive Director, furnish 
     the Executive Director and serve all parties affected by 
     issues raised in the petition with information concerning 
     parties, issues, and agreements raised in or affected by the 
     petition.
       (b) Inclusions and exclusions. After a petition seeking an 
     election is filed, the Executive Director, on behalf of the 
     Board, may direct the employing office or activity to furnish 
     the Executive Director and all parties affected by issues 
     raised in the petition with a current alphabetized list of 
     employees and job classifications included in and/or excluded 
     from the existing or claimed unit affected by issues raised 
     in the petition.
       (c) Cooperation. All parties are required to cooperate in 
     every aspect of the representation process. This obligation 
     includes cooperating fully with the Executive Director, 
     submitting all required and requested information, and 
     participating in prehearing conferences and pre-election 
     investigatory hearings. The failure to cooperate in the 
     representation process may result in the Executive Director 
     or the Board taking appropriate action, including dismissal 
     of the petition or denial of intervention.
     Sec. 2422.16  Election agreements or directed elections.
       (a) Election agreements. Parties are encouraged to enter 
     into election agreements.
       (b) Executive Director directed election. If the parties 
     are unable to agree on procedural matters, specifically, the 
     eligibility period, method of election, dates, hours, or 
     locations of the election, the Executive Director, on behalf 
     of the Board, will decide election procedures and issue a 
     Direction of Election, without prejudice to the rights of a 
     party to file objections to the procedural conduct of the 
     election.
       (c) Opportunity for an investigatory hearing. Before 
     directing an election, the Executive Director shall provide 
     affected parties an opportunity for a pre-election 
     investigatory hearing on other than procedural matters.
       (d) Challenges or objections to a directed election. A 
     Direction of Election issued under this section will be 
     issued without prejudice to the right of a party to file a 
     challenge to the eligibility of any person participating in 
     the election and/or objections to the election.
     Sec. 2422.17  Notice of pre-election investigatory hearing 
         and prehearing conference.
       (a) Purpose of notice of an investigatory hearing. The 
     Executive Director, on behalf of the Board, may issue a 
     notice of pre-election investigatory hearing involving any 
     issues raised in the petition.
       (b) Contents. The notice of hearing will advise affected 
     parties about the pre-election investigatory hearing. The 
     Executive Director will also notify affected parties of the 
     issues raised in the petition and establish a date for the 
     prehearing conference.
       (c) Prehearing conference. A prehearing conference will be 
     conducted by the Executive Director or her designee, either 
     by meeting or teleconference. All parties must participate in 
     a prehearing conference and be prepared to fully discuss, 
     narrow and resolve the issues set forth in the notification 
     of the prehearing conference.
       (d) No interlocutory appeal of investigatory hearing 
     determination. The Executive Director's determination of 
     whether to issue a notice of pre-election investigatory 
     hearing is not appealable to the Board.
     Sec. 2422.18  Pre-election investigatory hearing procedures.
       (a) Purpose of a pre-election investigatory hearing. 
     Representation hearings are considered investigatory and not 
     adversarial. The purpose of the hearing is to develop a full 
     and complete record of relevant and material facts.
       (b) Conduct of hearing. Pre-election investigatory hearings 
     will be open to the public unless otherwise ordered by the 
     Executive Director or her designee. There is no burden of 
     proof, with the exception of proceedings on objections to 
     elections as provided for in Sec. 2422.27(b). Formal rules of 
     evidence do not apply.
       (c) Pre-election investigatory hearing. Pre-election 
     investigatory hearings will be conducted by the Executive 
     Director or her designee.
       (d) Production of evidence. Parties have the obligation to 
     produce existing documents and witnesses for the 
     investigatory hearing in accordance with the instructions of 
     the Executive Director or her designee. If a party willfully 
     fails to comply with such instructions, the Board may draw an 
     inference adverse to that party on the issue related to the 
     evidence sought.
       (e) Transcript. An official reporter will make the official 
     transcript of the pre-election investigatory hearing. Copies 
     of the official transcript may be examined in the Office 
     during normal working hours. Requests

[[Page H5163]]

     by parties to purchase copies of the official transcript 
     should be made to the official hearing reporter.
     Sec. 2422.19  Motions.
       (a) Purpose of a motion. Subsequent to the issuance of a 
     notice of pre-election investigatory hearing in a 
     representation proceeding, a party seeking a ruling, an 
     order, or relief must do so by filing or raising a motion 
     stating the order or relief sought and the grounds 
     therefor. Challenges and other filings referenced in other 
     sections of this subpart may, in the discretion of the 
     Executive Director or her designee, be treated as a 
     motion.
       (b) Prehearing motions. Prehearing motions must be filed in 
     writing with the Executive Director. Any response must be 
     filed with the Executive Director within five (5) days after 
     service of the motion. The Executive Director shall rule on 
     the motion.
       (c) Motions made at the investigatory hearing. During the 
     pre-election investigatory hearing, motions will be made to 
     the Executive Director or her designee, and may be oral on 
     the record, unless otherwise required in this subpart to be 
     in writing. Responses may be oral on the record or in 
     writing, but, absent permission of the Executive Director or 
     her designee, must be provided before the hearing closes. The 
     Executive Director or her designee will rule on motions made 
     at the hearing.
       (d) Posthearing motions. Motions made after the hearing 
     closes must be filed in writing with the Board. Any response 
     to a posthearing motion must be filed with the Board within 
     five (5) days after service of the motion.
     Sec. 2422.20  Rights of parties at a pre-election 
         investigatory hearing.
       (a) Rights. A party at a pre-election investigatory hearing 
     will have the right:
       (1) To appear in person or by a representative;
       (2) To examine and cross-examine witnesses; and
       (3) To introduce into the record relevant evidence.
       (b) Documentary evidence and stipulations. Parties must 
     submit two (2) copies of documentary evidence to the 
     Executive Director or her designee and copies to all other 
     parties. Stipulations of fact between/among the parties may 
     be introduced into evidence.
       (c) Oral argument. Parties will be entitled to a reasonable 
     period prior to the close of the hearing for oral argument. 
     Presentation of a closing oral argument does not preclude a 
     party from filing a brief under paragraph (d) of this 
     section.
       (d) Briefs. A party will be afforded an opportunity to file 
     a brief with the Board.
       (1) An original and two (2) copies of a brief must be filed 
     with the Board within thirty (30) days from the close of the 
     hearing.
       (2) A written request for an extension of time to file a 
     brief must be filed with and received by the Board no later 
     than five (5) days before the date the brief is due.
       (3) No reply brief may be filed without permission of the 
     Board.
     Sec. 2422.21  Duties and powers of the Executive Director in 
         the conduct of the pre-election investigatory hearing.
       (a) Duties. The Executive Director or her designee, on 
     behalf of the Board, will receive evidence and inquire fully 
     into the relevant and material facts concerning the matters 
     that are the subject of the investigatory hearing, and may 
     make recommendations on the record to the Board.
       (b) Powers. During the period a case is assigned to the 
     Executive Director or her designee for pre-election 
     investigatory hearing and prior to the close of the hearing, 
     the Executive Director or her designee may take any action 
     necessary to schedule, conduct, continue, control, and 
     regulate the pre-election investigatory hearing, including 
     ruling on motions when appropriate.
     Sec. 2422.22  Objections to the conduct of the pre-election 
         investigatory hearing.
       (a) Objections. Objections are oral or written complaints 
     concerning the conduct of a pre-election investigatory 
     hearing.
       (b) Exceptions to rulings. There are automatic exceptions 
     to all adverse rulings.
     Sec. 2422.23  Election procedures.
        (a) Executive Director conducts or supervises election. 
     The Executive Director, on behalf of the Board, will decide 
     to conduct or supervise the election. In supervised 
     elections, employing offices or activities will perform all 
     acts as specified in the Election Agreement or Direction of 
     Election.
       (b) Notice of election. Prior to the election a notice of 
     election, prepared by the Executive Director, will be posted 
     by the employing office or activity in places where notices 
     to employees are customarily posted and/or distributed in a 
     manner by which notices are normally distributed. The notice 
     of election will contain the details and procedures of the 
     election, including the appropriate unit, the eligibility 
     period, the date(s), hour(s) and location(s) of the election, 
     a sample ballot, and the effect of the vote.
       (c) Sample ballot. The reproduction of any document 
     purporting to be a copy of the official ballot that suggests 
     either directly or indirectly to employees that the Board 
     endorses a particular choice in the election may constitute 
     grounds for setting aside an election if objections are filed 
     under Sec. 2422.26.
       (d) Secret ballot. All elections will be by secret ballot.
       (e) Intervenor withdrawal from ballot. When two or more 
     labor organizations are included as choices in an election, 
     an intervening labor organization may, prior to the approval 
     of an election agreement or before the direction of an 
     election, file a written request with the Executive Director 
     to remove its name from the ballot. If the request is not 
     received prior to the approval of an election agreement or 
     before the direction of an election, unless the parties 
     and the Executive Director, on behalf of the Board, agree 
     otherwise, the intervening labor organization will remain 
     on the ballot. The Executive Director's decision on the 
     request is final and not subject to the filing of an 
     application for review with the Board.
       (f) Incumbent withdrawal from ballot in an election to 
     decertify an incumbent representative. When there is no 
     intervening labor organization, an election to decertify an 
     incumbent exclusive representative will not be held if the 
     incumbent provides the Executive Director with a written 
     disclaimer of any representation interest in the unit. When 
     there is an intervenor, an election will be held if the 
     intervening labor organization proffers a thirty percent 
     (30%) showing of interest within the time period established 
     by the Executive Director.
       (g) Petitioner withdraws from ballot in an election. When 
     there is no intervening labor organization, an election will 
     not be held if the petitioner provides the Executive Director 
     with a written request to withdraw the petition. When there 
     is an intervenor, an election will be held if the intervening 
     labor organization proffers a thirty percent (30%) showing of 
     interest within the time period established by the Executive 
     Director.
       (h) Observers. All parties are entitled to representation 
     at the polling location(s) by observers of their own 
     selection subject to the Executive Director's approval.
       (1) Parties desiring to name observers must file in writing 
     with the Executive Director a request for specifically named 
     observers at least fifteen (15) days prior to an election. 
     The Executive Director may grant an extension of time for 
     filing a request for specifically named observers for good 
     cause where a party requests such an extension or on the 
     Executive Director's own motion. The request must name and 
     identify the observers requested.
       (2) An employing office or activity may use as its 
     observers any employees who are not eligible to vote in the 
     election, except:
       (i) Supervisors or management officials;
       (ii) Employees who have any official connection with any of 
     the labor organizations involved; or
       (iii) Non-employees of the legislative branch.
       (3) A labor organization may use as its observers any 
     employees eligible to vote in the election, except:
       (i) Employees on leave without pay status who are working 
     for the labor organization involved; or
       (ii) Employees who hold an elected office in the union.
       (4) Objections to a request for specific observers must be 
     filed with the Executive Director stating the reasons in 
     support within five (5) days after service of the request.
       (5) The Executive Director's ruling on requests for and 
     objections to observers is final and binding and is not 
     subject to the filing of an application for review with the 
     Board.
     Sec. 2422.24  Challenged ballots.
       (a) Filing challenges. A party or the Executive Director 
     may, for good cause, challenge the eligibility of any person 
     to participate in the election prior to the employee voting.
       (b) Challenged ballot procedure. An individual whose 
     eligibility to vote is in dispute will be given the 
     opportunity to vote a challenged ballot. If the parties and 
     the Region are unable to resolve the challenged ballot(s) 
     prior to the tally of ballots, the unresolved challenged 
     ballot(s) will be impounded and preserved until a 
     determination can be made, if necessary, by the Executive 
     Director or the Board.
     Sec. 2422.25  Tally of ballots.
       (a) Tallying the ballots. When the election is concluded, 
     the Executive Director or her designee will tally the 
     ballots.
       (b) Service of the tally. When the tally is completed, the 
     Executive Director will serve the tally of ballots on the 
     parties in accordance with the election agreement or 
     direction of election.
       (c) Valid ballots cast. Representation will be determined 
     by the majority of the valid ballots cast.
     Sec. 2422.26  Objections to the election.
       (a) Filing objections to the election. Objections to the 
     procedural conduct of the election or to conduct that may 
     have improperly affected the results of the election may be 
     filed by any party. Objections must be filed and received by 
     the Executive Director within five (5) days after the tally 
     of ballots has been served. Any objections must be timely 
     regardless of whether the challenged ballots are sufficient 
     in number to affect the results of the election. The 
     objections must be supported by clear and concise reasons. An 
     original and two (2) copies of the objections must be 
     received by the Executive Director.
       (b) Supporting evidence. The objecting party must file with 
     the Executive Director evidence, including signed statements, 
     documents and other materials supporting the objections 
     within ten (10) days after the objections are filed.
     Sec. 2422.27  Determinative challenged ballots and 
         objections.
       (a) Investigation. The Executive Director, on behalf of the 
     Board, will investigate objections and/or determinative 
     challenged ballots that are sufficient in number to affect 
     the results of the election.

[[Page H5164]]

       (b) Burden of proof. A party filing objections to the 
     election bears the burden of proof by a preponderance of the 
     evidence concerning those objections. However, no party bears 
     the burden of proof on challenged ballots.
       (c) Executive Director action. After investigation, the 
     Executive Director will take appropriate action consistent 
     with Sec. 2422.30.
       (d) Consolidated hearing on objections and/or determinative 
     challenged ballots and an unfair labor practice hearing. When 
     appropriate, and in accordance with Sec. 2422.33, objections 
     and/or determinative challenged ballots may be consolidated 
     with an unfair labor practice hearing. Such consolidated 
     hearings will be conducted by a Hearing Officer. Exceptions 
     and related submissions must be filed with the Board and the 
     Board will issue a decision in accordance with Part 2423 of 
     this chapter and section 406 of the CAA, except for the 
     following:
       (1) Section 2423.18 of this Subchapter concerning the 
     burden of proof is not applicable;
       (2) The Hearing Officer may not recommend remedial action 
     to be taken or notices to be posted; and,
       (3) References to charge and complaint in Part 2423 of this 
     chapter will be omitted.
     Sec. 2422.28  Runoff elections.
       (a) When a runoff may be held. A runoff election is 
     required in an election involving at least three (3) choices, 
     one of which is no union or neither, when no choice receives 
     a majority of the valid ballots cast. However, a runoff may 
     not be held until the objections to the election and 
     determinative challenged ballots have been resolved.
       (b) Eligibility. Employees who were eligible to vote in the 
     original election and who are also eligible on the date of 
     the runoff election may vote in the runoff election.
       (c) Ballot. The ballot in the runoff election will provide 
     for a selection between the two choices receiving the largest 
     and second largest number of votes in the election.
     Sec. 2422.29  Inconclusive elections.
       (a) Inconclusive elections. An inconclusive election is one 
     where challenged ballots are not sufficient to affect the 
     outcome of the election and one of the following occurs:
       (1) The ballot provides for at least three (3) choices, one 
     of which is no union or neither and the votes are equally 
     divided; or
       (2) The ballot provides for at least three (3) choices, the 
     choice receiving the highest number of votes does not receive 
     a majority, and at least two other choices receive the next 
     highest and same number of votes; or
       (3) When a runoff ballot provides for a choice between two 
     labor organizations and results in the votes being equally 
     divided; or
       (4) When the Board determines that there have been 
     significant procedural irregularities.
       (b) Eligibility to vote in a rerun election. A current 
     payroll period will be used to determine eligibility to vote 
     in a rerun election.
       (c) Ballot. If a determination is made that the election is 
     inconclusive, the election will be rerun with all the choices 
     that appeared on the original ballot.
       (d) Number of reruns. There will be only one rerun of an 
     inconclusive election. If the rerun results in another 
     inconclusive election, the tally of ballots will indicate a 
     majority of valid ballots has not been cast for any choice 
     and a certification of results will be issued. If necessary, 
     a runoff may be held when an original election is rerun.
     Sec. 2422.30  Executive Director investigations, notices of 
         pre-election investigatory hearings, and actions; Board 
         Decisions and Orders.
       (a) Executive Director investigation. The Executive 
     Director, on behalf of the Board, will make such 
     investigation of the petition and any other matter as the 
     Executive Director deems necessary.
       (b) Executive Director notice of pre-election investigatory 
     hearing. On behalf of the Board, the Executive Director will 
     issue a notice of pre-election investigatory hearing to 
     inquire into any matter about which a material issue of fact 
     exists, where there is an issue as to whether a question 
     concerning representation exists, and any time there is 
     reasonable cause to believe a question exists regarding unit 
     appropriateness.
       (c) Executive Director action. After investigation and/or 
     hearing, when a pre-election investigatory hearing has been 
     ordered, the Executive Director may, on behalf of the Board, 
     approve an election agreement, dismiss a petition or deny 
     intervention where there is an inadequate or invalid showing 
     of interest, or dismiss a petition where there is an 
     undisputed bar to further processing of the petition under 
     law, rule or regulation.
       (d) Appeal of Executive Director action. A party may file 
     with the Board an application for review of an Executive 
     Director action taken pursuant to section (c) above.
       (e) Contents of the Record. When no pre-election 
     investigatory hearing has been conducted all material 
     submitted to and considered by the Executive Director during 
     the investigation becomes a part of the record. When a pre-
     election investigatory hearing has been conducted, the 
     transcript and all material entered into evidence, including 
     any posthearing briefs, become a part of the record.
       (f) Transfer of record to Board; Board Decisions and 
     Orders. In cases that are submitted to the Board for decision 
     in the first instance, the Board shall decide the issues 
     presented based upon the record developed by the Executive 
     Director, including the transcript of the pre-election 
     investigatory hearing, if any, documents admitted into the 
     record and briefs and other approved submissions from the 
     parties. The Board may direct that a secret ballot 
     election be held, issue an order dismissing the petition, 
     or make such other disposition of the matter as it deems 
     appropriate.
     Sec. 2422.31  Application for review of an Executive Director 
         action.
       (a) Filing an application for review. A party must file an 
     application for review with the Board within sixty (60) days 
     of the Executive Director's action. The sixty (60) day time 
     limit provided for in 5 U.S.C. 7105(f), as applied by the 
     CAA, may not be extended or waived.
       (b) Contents. An application for review must be sufficient 
     to enable the Board to rule on the application without 
     recourse to the record; however, the Board may, in its 
     discretion, examine the record in evaluating the application. 
     An application must specify the matters and rulings to which 
     exception(s) is taken, include a summary of evidence relating 
     to any issue raised in the application, and make specific 
     reference to page citations in the transcript if a hearing 
     was held. An application may not raise any issue or rely on 
     any facts not timely presented to the Executive Director.
       (c) Review. The Board may, in its discretion, grant an 
     application for review when the application demonstrates that 
     review is warranted on one or more of the following grounds:
       (1) The decision raises an issue for which there is an 
     absence of precedent;
       (2) Established law or policy warrants reconsideration; or,
       (3) There is a genuine issue over whether the Executive 
     Director has:
       (i) Failed to apply established law;
       (ii) Committed a prejudicial procedural error;
       (iii) Committed a clear and prejudicial error concerning a 
     substantial factual matter.
       (d) Opposition. A party may file with the Board an 
     opposition to an application for review within ten (10) days 
     after the party is served with the application. A copy must 
     be served on the Executive Director and all other parties and 
     a statement of service must be filed with the Board.
       (e) Executive Director action becomes the Board's action. 
     An action of the Executive Director becomes the action of the 
     Board when:
       (1) No application for review is filed with the Board 
     within sixty (60) days after the date of the Executive 
     Director's action; or
       (2) A timely application for review is filed with the Board 
     and the Board does not undertake to grant review of the 
     Executive Director's action within sixty (60) days of the 
     filing of the application; or
       (3) The Board denies an application for review of the 
     Executive Director's action.
       (f) Board grant of review and stay. The Board may rule on 
     the issue(s) in an application for review in its order 
     granting the application for review. Neither filing nor 
     granting an application for review shall stay any action 
     ordered by the Executive Director unless specifically ordered 
     by the Board.
       (g) Briefs if review is granted. If the Board does not rule 
     on the issue(s) in the application for review in its order 
     granting review, the Board may, in its discretion, afford the 
     parties an opportunity to file briefs. The briefs will be 
     limited to the issue(s) referenced in the Board's order 
     granting review.
     Sec. 2422.32  Certifications and revocations.
       (a) Certifications. The Executive Director, on behalf of 
     the Board, will issue an appropriate certification when:
       (1) After an election, runoff, or rerun,
       (i) No objections are filed or challenged ballots are not 
     determinative, or
       (ii) Objections and determinative challenged ballots are 
     decided and resolved; or
       (2) The Executive Director takes an action requiring a 
     certification and that action becomes the action of the Board 
     under Sec. 2422.31(e) or the Board otherwise directs the 
     issuance of a certification.
       (b) Revocations. Without prejudice to any rights and 
     obligations which may exist under the CAA, the Executive 
     Director, on behalf of the Board, will revoke a recognition 
     or certification, as appropriate, and provide a written 
     statement of reasons when an incumbent exclusive 
     representative files, during a representation proceeding, a 
     disclaimer of any representational interest in the unit.
     Sec. 2422.33  Relief obtainable under Part 2423.
       Remedial relief that was or could have been obtained as a 
     result of a motion, objection, or challenge filed or raised 
     under this subpart, may not be the basis for similar relief 
     if filed or raised as an unfair labor practice under Part 
     2423 of this Chapter: provided, however, that related matters 
     may be consolidated for hearing as noted in Sec. 2422.27(d) 
     of this subpart.
     Sec. 2422.34  Rights and obligations during the pendency of 
         representation proceedings.
       (a) Existing recognitions, agreements, and obligations 
     under the CAA. During the pendency of any representation 
     proceeding, parties are obligated to maintain existing 
     recognitions, adhere to the terms and conditions of existing 
     collective bargaining agreements, and fulfill all other 
     representational and bargaining responsibilities under the 
     CAA.
       (b) Unit status of individual employees. Notwithstanding 
     paragraph (a) of this section and except as otherwise 
     prohibited by law, a party may take action based on its 
     position regarding the bargaining unit status of individual 
     employees, pursuant to 5 U.S.C.

[[Page H5165]]

     7103(a)(2), 7112(b) and (c), as applied by the CAA: provided, 
     however, that its actions may be challenged, reviewed, and 
     remedied where appropriate.

              PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

     Sec.
     2423.1  Applicability of this part.
     2423.2  Informal proceedings.
     2423.3  Who may file charges.
     2423.4  Contents of the charge; supporting evidence and 
         documents.
     2423.5  Selection of the unfair labor practice procedure or 
         the negotiability procedure.
     2423.6  Filing and service of copies.
     2423.7  Investigation of charges.
     2423.8  Amendment of charges.
     2423.9  Action by the General Counsel.
     2423.10  Determination not to file complaint.
     2423.11  Settlement or adjustment of issues.
     2423.12  Filing and contents of the complaint.
     2423.13  Answer to the complaint.
     2423.14  Prehearing disclosure; conduct of hearing.
     2423.15  Intervention.
     2423.16  [Reserved]
     2423.17  [Reserved]
     2423.18  Burden of proof before the Hearing Officer.
     2423.19  Duties and powers of the Hearing Officer.
     2423.20  [Reserved]
     2423.21  [Reserved]
     2423.22  [Reserved]
     2423.23  [Reserved]
     2423.24  [Reserved]
     2423.25  [Reserved]
     2423.26  Hearing Officer decisions; entry in records of the 
         Office.
     2423.27  Appeal to the Board.
     2423.28  [Reserved]
     2423.29  Action by the Board.
     2423.30  Compliance with decisions and orders of the Board.
     2423.31  Backpay proceedings.
     Sec. 2423.1  Applicability of this part.
       This part is applicable to any charge of alleged unfair 
     labor practices occurring on or after October 1, 1996.
     Sec. 2423.2  Informal proceedings.
       (a) The purposes and policies of chapter 71, as applied by 
     the CAA, can best be achieved by the cooperative efforts of 
     all persons covered by the program. To this end, it shall be 
     the policy of the Board and the General Counsel to encourage 
     all persons alleging unfair labor practices and persons 
     against whom such allegations are made to meet and, in good 
     faith, attempt to resolve such matters prior to the filing of 
     unfair labor practice charges.
       (b) In furtherance of the policy referred to in paragraph 
     (a) of this section, and noting the 180 day period of 
     limitation set forth in section 220(c)(2) of the CAA, it 
     shall be the policy of the Board and the General Counsel to 
     encourage the informal resolution of unfair labor practice 
     allegations subsequent to the filing of a charge and prior to 
     the filing of a complaint by the General Counsel.
       (c) In order to afford the parties an opportunity to 
     implement the policy referred to in paragraphs (a) and (b) of 
     this section, the investigation of an unfair labor practice 
     charge by the General Counsel will normally not commence 
     until the parties have been afforded a reasonable amount of 
     time, not to exceed fifteen (15) days from the filing of the 
     charge, during which period the parties are urged to attempt 
     to informally resolve the unfair labor practice allegation.
     Sec. 2423.3  Who may file charges.
       An employing office, employing activity, or labor 
     organization may be charged by any person with having engaged 
     in or engaging in any unfair labor practice prohibited under 
     5 U.S.C. 7116, as applied by the CAA.
     Sec. 2423.4  Contents of the charge; supporting evidence and 
         documents.
       (a) A charge alleging a violation of 5 U.S.C. 7116, as 
     applied by the CAA, shall be submitted on forms prescribed by 
     the General Counsel and shall contain the following:
       (1) The name, address and telephone number of the person(s) 
     making the charge;
       (2) The name, address and telephone number of the employing 
     office or activity, or labor organization against whom the 
     charge is made;
       (3) A clear and concise statement of the facts constituting 
     the alleged unfair labor practice, a statement of the 
     section(s) and subsection(s) of chapter 71 of title 5 of the 
     United States Code made applicable by the CAA alleged to have 
     been violated, and the date and place of occurrence of the 
     particular acts; and
       (4) A statement of any other procedure invoked involving 
     the subject matter of the charge and the results, if any, 
     including whether the subject matter raised in the charge (i) 
     has been raised previously in a grievance procedure; (ii) has 
     been referred to the Board under Part 2471 of these 
     regulations, or the Federal Mediation and Conciliation 
     Service, or (iii) involves a negotiability issue raised by 
     the charging party in a petition pending before the Board 
     pursuant to Part 2424 of this subchapter.
       (b) Such charge shall be in writing and signed and shall 
     contain a declaration by the person signing the charge, under 
     the penalties of the Criminal Code (18 U.S.C. 1001), that its 
     contents are true and correct to the best of that person's 
     knowledge and belief.
       (c) When filing a charge, the charging party shall submit 
     to the General Counsel any supporting evidence and documents.
     Sec. 2423.5  Selection of the unfair labor practice procedure 
         or the negotiability procedure.
       Where a labor organization files an unfair labor practice 
     charge pursuant to this part which involves a negotiability 
     issue, and the labor organization also files pursuant to part 
     2424 of this subchapter a petition for review of the same 
     negotiability issue, the Board and the General Counsel 
     ordinarily will not process the unfair labor practice charge 
     and the petition for review simultaneously. Under such 
     circumstances, the labor organization must select under which 
     procedure to proceed. Upon selection of one procedure, 
     further action under the other procedure will ordinarily be 
     suspended. Such selection must be made regardless of whether 
     the unfair labor practice charge or the petition for review 
     of a negotiability issue is filed first. Notification of this 
     selection must be made in writing at the time that both 
     procedures have been invoked, and must be served on the 
     Board, the General Counsel and all parties to both the unfair 
     labor practice case and the negotiability case.
     Sec. 2423.6  Filing and service of copies.
       (a) An original and four (4) copies of the charge together 
     with one copy for each additional charged party named shall 
     be filed with the General Counsel.
       (b) Upon the filing of a charge, the charging party shall 
     be responsible for the service of a copy of the charge 
     (without the supporting evidence and documents) upon the 
     person(s) against whom the charge is made, and for filing a 
     written statement of such service with the General Counsel. 
     The General Counsel will, as a matter of course, cause a copy 
     of such charge to be served on the person(s) against whom the 
     charge is made, but shall not be deemed to assume 
     responsibility for such service.
       (c) A charge will be deemed to be filed when it is received 
     by the General Counsel in accordance with the requirements in 
     paragraph (a) of this section.
     Sec. 2423.7  Investigation of charges.
       (a) The General Counsel shall conduct such investigation of 
     the charge as the General Counsel deems necessary. Consistent 
     with the policy set forth in Sec. 2423.2, the investigation 
     will normally not commence until the parties have been 
     afforded a reasonable amount of time, not to exceed fifteen 
     (15) days from the filing of the charge, to informally 
     resolve the unfair labor practice allegation.
       (b) During the course of the investigation all parties 
     involved will have an opportunity to present their evidence 
     and views to the General Counsel.
       (c) In connection with the investigation of charges, all 
     persons are expected to cooperate fully with the General 
     Counsel.
       (d) The purposes and policies of chapter 71, as applied by 
     the CAA, can best be achieved by the full cooperation of all 
     parties involved and the voluntary submission of all 
     potentially relevant information from all potential sources 
     during the course of the investigation. To this end, it shall 
     be the policy of the Board and the General Counsel to protect 
     the identity of individuals and the substance of the 
     statements and information they submit or which is obtained 
     during the investigation as a means of assuring the Board's 
     and the General Counsel's continuing ability to obtain all 
     relevant information.
     Sec. 2423.8  Amendment of charges.
       Prior to the issuance of a complaint, the charging party 
     may amend the charge in accordance with the requirements set 
     forth in Sec. 2423.6.
     Sec. 2423.9  Action by the General Counsel.
       (a) The General Counsel shall take action which may consist 
     of the following, as appropriate:
       (1) Approve a request to withdraw a charge;
       (2) Refuse to file a complaint;
       (3) Approve a written settlement and recommend that the 
     Executive Director approve a written settlement agreement in 
     accordance with the provisions of section 414 of the CAA;
       (4) File a complaint;
       (5) Upon agreement of all parties, transfer to the Board 
     for decision, after filing of a complaint, a stipulation of 
     facts in accordance with the provisions of Sec. 2429.1(a) of 
     this subchapter; or
       (6) Withdraw a complaint.
     Sec. 2423.10  Determination not to file complaint.
       (a) If the General Counsel determines that the charge has 
     not been timely filed, that the charge fails to state an 
     unfair labor practice, or for other appropriate reasons, the 
     General Counsel may request the charging party to withdraw 
     the charge, and in the absence of such withdrawal within a 
     reasonable time, decline to file a complaint.
       (b) The charging party may not obtain a review of the 
     General Counsel's decision not to file a complaint.
     Sec. 2423.11  Settlement or adjustment of issues.
       (a) At any stage of a proceeding prior to hearing, where 
     time, the nature of the proceeding, and the public interest 
     permit, all interested parties shall have the opportunity to 
     submit to the Executive Director or General Counsel, as 
     appropriate, for consideration, all facts and arguments 
     concerning offers of settlement, or proposals of adjustment.

                        Precomplaint settlements

       (b)(1) Prior to the filing of any complaint or the taking 
     of other formal action, the General Counsel will afford the 
     charging

[[Page H5166]]

     party and the respondent a reasonable period of time in which 
     to enter into a settlement agreement to be submitted to and 
     approved by the General Counsel and the Executive Director. 
     Upon approval by the General Counsel and Executive Director 
     and compliance with the terms of the settlement agreement, no 
     further action shall be taken in the case. If the respondent 
     fails to perform its obligations under the settlement 
     agreement, the General Counsel may determine to institute 
     further proceedings.
       (2) In the event that the charging party fails or refuses 
     to become a party to a settlement agreement offered by the 
     respondent, if the General Counsel concludes that the offered 
     settlement will effectuate the policies of chapter 71, as 
     applied by the CAA, the agreement shall be between the 
     respondent and the General Counsel and the latter shall 
     decline to file a complaint.

                    Post complaint settlement policy

       (c) Consistent with the policy reflected in paragraph (a) 
     of this section, even after the filing of a complaint, the 
     Board favors the settlement of issues. Such settlements may 
     be accomplished as provided in paragraph (b) of this section. 
     The parties may, as part of the settlement, agree to waive 
     their right to a 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 such a 
     settlement agreement will also contain the respondent's 
     consent to the Board's application for the entry of a decree 
     by the United States Court of Appeals for the Federal Circuit 
     enforcing the Board's order.

                 Post complaint prehearing settlements

       (d)(1) If, after the filing of a complaint, the charging 
     party and the respondent enter into a settlement agreement, 
     and such agreement is accepted by the General Counsel, the 
     settlement agreement shall be submitted to the Executive 
     Director for approval.
       (2) If, after the filing of a complaint, the charging party 
     fails or refuses to become a party to a settlement agreement 
     offered by the respondent, and the General Counsel concludes 
     that the offered settlement will effectuate the policies of 
     chapter 71, as applied by the CAA, the agreement shall be 
     between the respondent and the General Counsel. The charging 
     party will be so informed and provided a brief written 
     statement by the General Counsel of the reasons therefor. The 
     settlement agreement together with the charging party's 
     objections, if any, and the General Counsel's written 
     statements, shall be submitted to the Executive Director for 
     approval. The Executive Director may approve or disapprove 
     any settlement agreement.
       (3) After the filing of a complaint, if the General Counsel 
     concludes that it will effectuate the policies of chapter 71, 
     as applied by the CAA, the General Counsel may withdraw the 
     complaint.

              Settlements after the opening of the hearing

       (e)(1) After filing of a complaint and after opening of the 
     hearing, if the General Counsel concludes that it will 
     effectuate the policies of chapter 71, as applied by the CAA, 
     the General Counsel may request the Hearing Officer for 
     permission to withdraw the complaint and, having been granted 
     such permission to withdraw the complaint, may approve a 
     settlement and recommend that the Executive Director approve 
     the settlement pursuant to paragraph (b) of this section.
       (2) If, after filing of a complaint and after opening of 
     the hearing, the parties enter into a settlement agreement 
     that contains the respondent's consent to the Board's 
     application for the entry of a decree by the United States 
     Court of Appeals for the Federal Circuit enforcing the 
     Board's order, the General Counsel may request the Hearing 
     Officer and the Executive Director to approve such settlement 
     agreement, and upon such approval, to transmit the agreement 
     to the Board for approval.
       (3) If the charging party fails or refuses to become a 
     party to a settlement agreement, offered by the respondent, 
     that contains the respondent's consent to the Board's 
     application for the entry of a decree by the United States 
     Court of Appeals for the Federal Circuit enforcing the 
     Board's order, and the General Counsel concludes that the 
     offered settlement will effectuate the policies of chapter 
     71, as applied to the CAA, the agreement shall be between the 
     respondent and the General Counsel. After the charging party 
     is given an opportunity to state on the record or in writing 
     the reasons for opposing the settlement, the General Counsel 
     may request the Hearing Officer and the Executive Director to 
     approve such settlement agreement, and upon such approval, to 
     transmit the agreement to the Board for approval. The Board 
     may approve or disapprove any such settlement agreement or 
     return the case to the Hearing Officer for other appropriate 
     action.
     Sec. 2423.12  Filing and contents of the complaint.
       (a) After a charge is filed, if it appears to the General 
     Counsel that formal proceedings in respect thereto should be 
     instituted, the General Counsel shall file a formal 
     complaint: Provided, however, that a determination by the 
     General Counsel to file a complaint shall not be subject to 
     review.
       (b) The complaint shall include:
       (1) Notice of the charge;
       (2) Any information required pursuant to the Procedural 
     Rules of the Office.
       (c) Any such complaint may be withdrawn before the hearing 
     by the General Counsel.
     Sec. 2423.13  Answer to the complaint.
       A respondent shall file an answer to a complaint in 
     accordance with the requirements of the Procedural Rules of 
     the Office.
     Sec. 2423.14  Prehearing disclosure; conduct of hearing.
       The procedures for prehearing discovery and the conduct of 
     the hearing are set forth in the Procedural Rules of the 
     Office.
     Sec. 2423.15  Intervention.
       Any person involved and desiring to intervene in any 
     proceeding pursuant to this part shall file a motion in 
     accordance with the procedures set forth in the Procedural 
     Rules of the Office. The motion shall state the grounds upon 
     which such person claims involvement.
     Sec. 2423.16  [Reserved]
     Sec. 2423.17  [Reserved]
     Sec. 2423.18  Burden of proof before the Hearing Officer.
       The General Counsel shall have the responsibility of 
     presenting the evidence in support of the complaint and shall 
     have the burden of proving the allegations of the complaint 
     by a preponderance of the evidence.
     2423.19  Duties and powers of the Hearing Officer.
       It shall be the duty of the Hearing Officer to inquire 
     fully into the facts as they relate to the matter before such 
     Hearing Officer, subject to the rules and regulations of the 
     Office and the Board.
     Sec. 2423.20  [Reserved]
     Sec. 2423.21  [Reserved]
     Sec. 2423.22  [Reserved]
     Sec. 2423.23  [Reserved]
     Sec. 2423.24  [Reserved]
     Sec. 2423.25  [Reserved]
     Sec. 2423.26  Hearing Officer decisions; entry in records of 
         the Office.
       In accordance with the Procedural Rules of the Office, the 
     Hearing Officer shall issue a written decision and that 
     decision will be entered into the records of the Office.
     Sec. 2423.27  Appeal to the Board.
       An aggrieved party may seek review of a decision and order 
     of the Hearing Officer in accordance with the Procedural 
     Rules of the Office.
     Sec. 2423.28  [Reserved]
     Sec. 2423.29  Action by the Board.
       (a) If an appeal is filed, the Board shall review the 
     decision of the Hearing Officer in accordance with section 
     406 of the CAA, and the Procedural Rules of the Office.
       (b) Upon finding a violation, the Board shall issue an 
     order:
       (1) To cease and desist from any such unfair labor practice 
     in which the employing office or labor organization is 
     engaged;
       (2) Requiring the parties to renegotiate a collective 
     bargaining agreement in accordance with the order of the 
     Board and requiring that the agreement, as amended, be given 
     retroactive effect;
       (3) Requiring reinstatement of an employee with backpay in 
     accordance with 5 U.S.C. 5596; or
       (4) Including any combination of the actions described in 
     paragraphs (1) through (3) of this paragraph (b), or such 
     other action as will carry out the purpose of the chapter 71, 
     as applied by the CAA.
        (c) Upon finding no violation, the Board shall dismiss the 
     complaint.
     Sec. 2423.30  Compliance with decisions and orders of the 
         Board.
       When remedial action is ordered, the respondent shall 
     report to the Office within a specified period that the 
     required remedial action has been effected. When the General 
     Counsel or the Executive Director finds that the required 
     remedial action has not been effected, the General Counsel or 
     the Executive Director shall take such action as may be 
     appropriate, including referral to the Board for enforcement.
     Sec. 2423.31  Backpay proceedings.
       After the entry of a Board order directing payment of 
     backpay, or the entry of a court decree enforcing such order, 
     if it appears to the General Counsel that a controversy 
     exists which cannot be resolved without a formal proceeding, 
     the General Counsel may issue and serve on all parties a 
     backpay specification accompanied by a request for hearing or 
     a request for hearing without a specification. Upon receipt 
     of the request for hearing, the Executive Director will 
     appoint an independent Hearing Officer. The respondent shall, 
     within twenty (20) days after the service of a backpay 
     specification, file an answer thereto in accordance with the 
     Office's Procedural Rules. No answer need be filed by the 
     respondent to a notice of hearing issued without a 
     specification. After the issuance of a notice of hearing, 
     with or without a backpay specification, the hearing 
     procedures provided in the Procedural Rules of the Office 
     shall be followed insofar as applicable.

          PART 2424--EXPEDITED REVIEW OF NEGOTIABILITY ISSUES

                    Subpart A--Instituting an Appeal

     Sec.
     2424.1  Conditions governing review.
     2424.2  Who may file a petition.
     2424.3  Time limits for filing.
     2424.4  Content of petition; service.
     2424.5  Selection of the unfair labor practice procedure or 
         the negotiability procedure.
     2424.6  Position of the employing office; time limits for 
         filing; service.
     2424.7  Response of the exclusive representative; time limits 
         for filing; service.
     2424.8  Additional submissions to the Board.
     2424.9  Hearing.
     2424.10  Board decision and order; compliance.

[[Page H5167]]

   Subpart B--Criteria for Determining Compelling Need for Employing 
                      Office Rules and Regulations

     2424.11  Illustrative criteria.

                    Subpart A--Instituting an Appeal

     Sec. 2424.1  Conditions governing review.
       The Board will consider a negotiability issue under the 
     conditions prescribed by 5 U.S.C. 7117 (b) and (c), as 
     applied by the CAA, namely: If an employing office involved 
     in collective bargaining with an exclusive representative 
     alleges that the duty to bargain in good faith does not 
     extend to any matter proposed to be bargained because, as 
     proposed, the matter is inconsistent with law, rule or 
     regulation, the exclusive representative may appeal the 
     allegation to the Board when----
       (a) It disagrees with the employing office's allegation 
     that the matter as proposed to be bargained is inconsistent 
     with any Federal law or any Government-wide rule or 
     regulation; or
       (b) It alleges, with regard to any employing office rule or 
     regulation asserted by the employing office as a bar to 
     negotiations on the matter, as proposed, that:
       (1) The rule or regulation violates applicable law, or rule 
     or regulation of appropriate authority outside the employing 
     office;
       (2) The rule or regulation was not issued by the employing 
     office or by any primary national subdivision of the 
     employing office, or otherwise is not applicable to bar 
     negotiations with the exclusive representative, under 5 
     U.S.C. 7117(a)(3), as applied by the CAA; or
       (3) No compelling need exists for the rule or regulation to 
     bar negotiations on the matter, as proposed, because the rule 
     or regulation does not meet the criteria established in 
     subpart B of this part.
     Sec. 2424.2  Who may file a petition.
       A petition for review of a negotiability issue may be filed 
     by an exclusive representative which is a party to the 
     negotiations.
     Sec. 2424.3  Time limits for filing.
       The time limit for filing a petition for review is fifteen 
     (15) days after the date the employing office's allegation 
     that the duty to bargain in good faith does not extend to the 
     matter proposed to be bargained is served on the exclusive 
     representative. The exclusive representative shall request 
     such allegation in writing and the employing office shall 
     make the allegation in writing and serve a copy on the 
     exclusive representative: provided, however, that review of a 
     negotiability issue may be requested by an exclusive 
     representative under this subpart without a prior written 
     allegation by the employing office if the employing office 
     has not served such allegation upon the exclusive 
     representative within ten (10) days after the date of the 
     receipt by any employing office bargaining representative at 
     the negotiations of a written request for such allegation.
     Sec. 2424.4  Content of petition; service.
       (a) A petition for review shall be dated and shall contain 
     the following:
       (1) A statement setting forth the express language of the 
     proposal sought to be negotiated as submitted to the 
     employing office;
       (2) An explicit statement of the meaning attributed to the 
     proposal by the exclusive representative including:
       (i) Explanation of terms of art, acronyms, technical 
     language, or any other aspect of the language of the proposal 
     which is not in common usage; and
       (ii) Where the proposal is concerned with a particular work 
     situation, or other particular circumstances, a description 
     of the situation or circumstances which will enable the Board 
     to understand the context in which the proposal is intended 
     to apply;
       (3) A copy of all pertinent material, including the 
     employing office's allegation in writing that the matter, as 
     proposed, is not within the duty to bargain in good faith, 
     and other relevant documentary material; and
       (4) Notification by the petitioning labor organization 
     whether the negotiability issue is also involved in an unfair 
     labor practice charge filed by such labor organization under 
     part 2423 of this subchapter and pending before the General 
     Counsel.
       (b) A copy of the petition including all attachments 
     thereto shall be served on the employing office head and on 
     the principal employing office bargaining representative at 
     the negotiations.
       (c)(1) Filing an incomplete petition for review will result 
     in the exclusive representative being asked to provide the 
     missing or incomplete information. Noncompliance with a 
     request to complete the record may result in dismissal of the 
     petition.
       (2) The processing priority accorded to an incomplete 
     petition, relative to other pending negotiability appeals, 
     will be based upon the date when the petition is completed 
     not the date it was originally filed.
     Sec. 2424.5  Selection of the unfair labor practice procedure 
         or the negotiability procedure.
       Where a labor organization files an unfair labor practice 
     charge pursuant to part 2423 of this subchapter which 
     involves a negotiability issue, and the labor organization 
     also files pursuant to this part a petition for review of the 
     same negotiability issue, the Board and the General Counsel 
     ordinarily will not process the unfair labor practice charge 
     and the petition for review simultaneously. Under such 
     circumstances, the labor organization must select under which 
     procedure to proceed. Upon selection of one procedure, 
     further action under the other procedure will ordinarily be 
     suspended. Such selection must be made regardless of whether 
     the unfair labor practice charge or the petition for review 
     of a negotiability issue is filed first. Notification of this 
     selection must be made in writing at the time that both 
     procedures have been invoked, and must be served on the 
     Board, the General Counsel and all parties to both the unfair 
     labor practice case and the negotiability case.
     Sec. 2424.6  Position of the employing office; time limits 
         for filing; service.
       (a) Within thirty (30) days after the date of the receipt 
     by the head of an employing office of a copy of a petition 
     for review of a negotiability issue the employing office 
     shall file a statement
       (1) Withdrawing the allegation that the duty to bargain in 
     good faith does not extend to the matter proposed to be 
     negotiated; or
       (2) Setting forth in full its position on any matters 
     relevant to the petition which it wishes the Board to 
     consider in reaching its decision, including a full and 
     detailed statement of its reasons supporting the allegation. 
     The statement shall cite the section of any law, rule or 
     regulation relied upon as a basis for the allegation and 
     shall contain a copy of any internal employing office rule or 
     regulation so relied upon. The statement shall include:
       (i) Explanation of the meaning the employing office 
     attributes to the proposal as a whole, including any terms of 
     art, acronyms, technical language or any other aspect of the 
     language of the proposal which is not in common usage; and
       (ii) Description of a particular work situation, or other 
     particular circumstance the employing office views the 
     proposal to concern, which will enable the Board to 
     understand the context in which the proposal is considered to 
     apply by the employing office.
       (b) A copy of the employing office's statement of position, 
     including all attachments thereto shall be served on the 
     exclusive representative.
     Sec. 2424.7  Response of the exclusive representative; time 
         limits for filing; service.
       (a) Within fifteen (15) days after the date of the receipt 
     by an exclusive representative of a copy of an employing 
     office's statement of position the exclusive representative 
     shall file a full and detailed response stating its position 
     and reasons for:
       (1) Disagreeing with the employing office's allegation that 
     the matter, as proposed to be negotiated, is inconsistent 
     with any Federal law or Government-wide rule or regulation; 
     or
       (2) Alleging that the employing office's rules or 
     regulations violate applicable law, or rule or regulation or 
     appropriate authority outside the employing office; that the 
     rules or regulations were not issued by the employing office 
     or by any primary national subdivision of the employing 
     office, or otherwise are not applicable to bar negotiations 
     under 5 U.S.C. 7117(a)(3), as applied by the CAA; or that no 
     compelling need exists for the rules or regulations to bar 
     negotiations.
       (b) The response shall cite the particular section of any 
     law, rule or regulation alleged to be violated by the 
     employing office's rules or regulations; or shall explain the 
     grounds for contending the employing office rules or 
     regulations are not applicable to bar negotiations under 5 
     U.S.C. 7117(a)(3), as applied by the CAA, or fail to meet the 
     criteria established in subpart B of this part, or were not 
     issued at the employing office headquarters level or at the 
     level of a primary national subdivision.
       (c) A copy of the response of the exclusive representative 
     including all attachments thereto shall be served on the 
     employing office head and on the employing office's 
     representative of record in the proceeding before the Board.
     Sec. 2424.8  Additional submissions to the Board.
       The Board will not consider any submission filed by any 
     party, whether supplemental or responsive in nature, other 
     than those authorized under Sec. Sec. 2424.2 through 2424.7 
     unless such submission is requested by the Board; or unless, 
     upon written request by any party, a copy of which is served 
     on all other parties, the Board in its discretion grants 
     permission to file such submission.
     Sec. 2424.9  Hearing.
       A hearing may be held, in the discretion of the Board, 
     before a determination is made under 5 U.S.C. 7117(b) or (c), 
     as applied by the CAA. If a hearing is held, it shall be 
     expedited to the extent practicable and shall not include the 
     General Counsel as a party.
     Sec. 2424.10  Board decision and order; compliance.
       (a) Subject to the requirements of this subpart the Board 
     shall expedite proceedings under this part to the extent 
     practicable and shall issue to the exclusive representative 
     and to the employing office a written decision on the 
     allegation and specific reasons therefor at the earliest 
     practicable date.
       (b) If the Board finds that the duty to bargain extends to 
     the matter proposed to be bargained, the decision of the 
     Board shall include an order that the employing office shall 
     upon request (or as otherwise agreed to by the parties) 
     bargain concerning such matter. If the Board finds that the 
     duty to bargain does not extend to the matter proposed to be 
     negotiated, the Board shall so state and issue an order 
     dismissing the petition for review of the negotiability 
     issue. If the Board finds that the duty to bargain extends to 
     the matter proposed to be bargained only at the election of 
     the employing office, the Board shall so state and issue an 
     order dismissing the petition for review of the negotiability 
     issue.

[[Page H5168]]

       (c) When an order is issued as provided in paragraph (b) of 
     this section, the employing office or exclusive 
     representative shall report to the Executive Director within 
     a specified period failure to comply with an order that the 
     employing office shall upon request (or as otherwise agreed 
     to by the parties) bargain concerning the disputed matter.

   Subpart B--Criteria for Determining Compelling Need for Employing 
                      Office Rules and Regulations

     Sec. 2424.11  Illustrative criteria.
       A compelling need exists for an employing office rule or 
     regulation concerning any condition of employment when the 
     employing office demonstrates that the rule or regulation 
     meets one or more of the following illustrative criteria:
       (a) The rule or regulation is essential, as distinguished 
     from helpful or desirable, to the accomplishment of the 
     mission or the execution of functions of the employing office 
     or primary national subdivision in a manner which is 
     consistent with the requirements of an effective and 
     efficient government.
       (b) The rule or regulation is necessary to insure the 
     maintenance of basic merit principles.
       (c) The rule or regulation implements a mandate to the 
     employing office or primary national subdivision under law or 
     other outside authority, which implementation is essentially 
     nondiscretionary in nature.

                PART 2425--REVIEW OF ARBITRATION AWARDS

     Sec.
     2425.1  Who may file an exception; time limits for filing; 
         opposition; service.
     2425.2  Content of exception.
     2425.3  Grounds for review.
     2425.4  Board decision.
     Sec. 2425.1  Who may file an exception; time limits for 
         filing; opposition; service.
       (a) Either party to arbitration under the provisions of 
     chapter 71 of title 5 of the United States Code, as applied 
     by the CAA, may file an exception to an arbitrator's award 
     rendered pursuant to the arbitration.
       (b) The time limit for filing an exception to an 
     arbitration award is thirty (30) days beginning on the date 
     the award is served on the filing party.
       (c) An opposition to the exception may be filed by a party 
     within thirty (30) days after the date of service of the 
     exception.
       (d) A copy of the exception and any opposition shall be 
     served on the other party.
     Sec. 2425.2  Content of exception.
       An exception must be a dated, self-contained document which 
     sets forth in full:
       (a) A statement of the grounds on which review is 
     requested;
       (b) Evidence or rulings bearing on the issues before the 
     Board;
       (c) Arguments in support of the stated grounds, together 
     with specific reference to the pertinent documents and 
     citations of authorities; and
       (d) A legible copy of the award of the arbitrator and 
     legible copies of other pertinent documents; and
       (e) The name and address of the arbitrator.
     Sec. 2425.3  Grounds for review.
       The Board will review an arbitrator's award to which an 
     exception has been filed to determine if the award is 
     deficient--
       (a) Because it is contrary to any law, rule or regulation; 
     or
       (b) On other grounds similar to those applied by Federal 
     courts in private sector labor-management relations.
     Sec. 2425.4  Board decision.
       The Board shall issue its decision and order taking such 
     action and making such recommendations concerning the award 
     as it considers necessary, consistent with applicable laws, 
     rules, or regulations.

  PART 2426--NATIONAL CONSULTATION RIGHTS AND CONSULTATION RIGHTS ON 
                  GOVERNMENT-WIDE RULES OR REGULATIONS

                Subpart A--National Consultation Rights

     Sec.
     2426.1  Requesting; granting; criteria.
     2426.2  Requests; petition and procedures for determination 
         of eligibility for national consultation rights.
     2426.3  Obligation to consult.

 Subpart B--Consultation Rights on Government-wide Rules or Regulations

     2426.11  Requesting; granting; criteria.
     2426.12  Requests; petition and procedures for determination 
         of eligibility for consultation rights on Government-wide 
         rules or regulations.
     2426.13  Obligation to consult.

                Subpart A--National Consultation Rights

     Sec. 2426.1  Requesting; granting; criteria.
       (a) An employing office shall accord national consultation 
     rights to a labor organization that:
       (1) Requests national consultation rights at the employing 
     office level; and
       (2) Holds exclusive recognition for ten percent (10%) or 
     more of the total number of personnel employed by the 
     employing office.
       (b) An employing office's primary national subdivision 
     which has authority to formulate conditions of employment 
     shall accord national consultation rights to a labor 
     organization that:
       (1) Requests national consultation rights at the primary 
     national subdivision level; and
       (2) Holds exclusive recognition for ten percent (10%) or 
     more of the total number of personnel employed by the primary 
     national subdivision.
       (c) In determining whether a labor organization meets the 
     requirements as prescribed in paragraphs (a)(2) and (b)(2) of 
     this section, the following will not be counted:
       (1) At the employing office level, employees represented by 
     the labor organization under national exclusive recognition 
     granted at the employing office level.
       (2) At the primary national subdivision level, employees 
     represented by the labor organization under national 
     exclusive recognition granted at the agency level or at that 
     primary national subdivision level.
       (d) An employing office or a primary national subdivision 
     of an employing office shall not grant national consultation 
     rights to any labor organization that does not meet the 
     criteria prescribed in paragraphs (a), (b) and (c) of this 
     section.
     Sec. 2426.2  Requests; petition and procedures for 
         determination of eligibility for national consultation 
         rights.
       (a) Requests by labor organizations for national 
     consultation rights shall be submitted in writing to the 
     headquarters of the employing office or the employing 
     office's primary national subdivision, as appropriate, which 
     headquarters shall have fifteen (15) days from the date of 
     service of such request to respond thereto in writing.
       (b) Issues relating to a labor organization's eligibility 
     for, or continuation of, national consultation rights shall 
     be referred to the Board for determination as follows:
       (1) A petition for determination of the eligibility of a 
     labor organization for national consultation rights under 
     criteria set forth in Sec. 2426.1 may be filed by a labor 
     organization.
       (2) A petition for determination of eligibility for 
     national consultation rights shall be submitted on a form 
     prescribed by the Board and shall set forth the following 
     information:
       (i) Name and affiliation, if any, of the petitioner and its 
     address and telephone number;
       (ii) A statement that the petitioner has submitted to the 
     employing office or the primary national subdivision and to 
     the Assistant Secretary a roster of its officers and 
     representatives, a copy of its constitution and bylaws, and a 
     statement of its objectives;
       (iii) A declaration by the person signing the petition, 
     under the penalties of the Criminal Code (18 U.S.C. 1001), 
     that its contents are true and correct to the best of such 
     person's knowledge and belief;
       (iv) The signature of the petitioner's representative, 
     including such person's title and telephone number;
       (v) The name, address, and telephone number of the 
     employing office or primary national subdivision in which the 
     petitioner seeks to obtain or retain national consultation 
     rights, and the persons to contact and their titles, if 
     known;
       (vi) A showing that petitioner holds adequate exclusive 
     recognition as required by Sec. 2426.1; and
       (vii) A statement as appropriate:
       (A) That such showing has been made to and rejected by the 
     employing office or primary national subdivision, together 
     with a statement of the reasons for rejection, if any, 
     offered by that employing office or primary national 
     subdivision;
       (B) That the employing office or primary national 
     subdivision has served notice of its intent to terminate 
     existing national consultation rights, together with a 
     statement of the reasons for termination; or
       (C) That the employing office or primary national 
     subdivision has failed to respond in writing to a request for 
     national consultation rights made under Sec. 2426.2(a) within 
     fifteen (15) days after the date the request is served on the 
     employing office or primary national subdivision.
       (3) The following regulations govern petitions filed under 
     this section:
       (i) A petition for determination of eligibility for 
     national consultation rights shall be filed with the 
     Executive Director.
       (ii) An original and four (4) copies of a petition shall be 
     filed, qtogether with a statement of any other relevant facts 
     and of all correspondence.
       (iii) Copies of the petition together with the attachments 
     referred to in paragraph (b)(3)(ii) of this section shall be 
     served by the petitioner on all known interested parties, and 
     a written statement of such service shall be filed with the 
     Executive Director.
       (iv) A petition shall be filed within thirty (30) days 
     after the service of written notice by the employing office 
     or primary national subdivision of its refusal to accord 
     national consultation rights pursuant to a request under 
     Sec. 2426.2(a) or its intention to terminate existing 
     national consultation rights. If an employing office or 
     primary national subdivision fails to respond in writing to a 
     request for national consultation rights made under 
     Sec. 2426.2(a) within fifteen (15) days after the date the 
     request is served on the employing office or primary national 
     subdivision, a petition shall be filed within thirty (30) 
     days after the expiration of such fifteen (15) day period.
       (v) If an employing office or primary national subdivision 
     wishes to terminate national consultation rights, notice of 
     its intention to do so shall include a statement of its 
     reasons and shall be served not less than thirty (30) days 
     prior to the intended termination date. A labor organization, 
     after receiving such notice, may file a petition within the 
     time period prescribed herein, and thereby cause to be stayed 
     further action by

[[Page H5169]]

     the employing office or primary national subdivision pending 
     disposition of the petition. If no petition has been filed 
     within the provided time period, an employing office or 
     primary national subdivision may terminate national 
     consultation rights.
       (vi) Within fifteen (15) days after the receipt of a copy 
     of the petition, the employing office or primary national 
     subdivision shall file a response thereto with the Executive 
     Director raising any matter which is relevant to the 
     petition.
       (vii) The Executive Director, on behalf of the Board, shall 
     make such investigations as the Executive Director deems 
     necessary and thereafter shall issue and serve on the parties 
     a determination with respect to the eligibility for national 
     consultation rights which shall be final: provided, however, 
     that an application for review of the Executive Director's 
     determination may be filed with the Board in accordance with 
     the procedure set forth in Sec. 2422.31 of this subchapter. A 
     determination by the Executive Director to issue a notice of 
     hearing shall not be subject to the filing of an application 
     for review.On behalf of the Board, the Executive Director, if 
     appropriate, may cause a notice of hearing to be issued to 
     all interested parties where substantial factual issues exist 
     warranting an investigatory hearing. Investigatory hearings 
     shall be conducted by the Executive Director or her designee 
     in accordance with Sec. 2422.17 through Sec. 2422.22 of this 
     subchapter and after the close of the investigatory hearing a 
     Decision and Order shall be issued by the Board in accordance 
     with Sec. 2422.30 of this subchapter.
     2426.3  Obligation to consult.
       (a) When a labor organization has been accorded national 
     consultation rights, the employing office or the primary 
     national subdivision which has granted those rights shall, 
     through appropriate officials, furnish designated 
     representatives of the labor organization:
       (1) Reasonable notice of any proposed substantive change in 
     conditions of employment; and
       (2) Reasonable time to present its views and 
     recommendations regarding the change.
       (b) If a labor organization presents any views or 
     recommendations regarding any proposed substantive change in 
     conditions of employment to an employing office or a primary 
     national subdivision, that employing office or primary 
     national subdivision shall:
       (1) Consider the views or recommendations before taking 
     final action on any matter with respect to which the views or 
     recommendations are presented; and
       (2) Provide the labor organization a written statement of 
     the reasons for taking the final action.
       (c) Nothing in this subpart shall be construed to limit the 
     right of any employing office or exclusive representative to 
     engage in collective bargaining.

 Subpart B--Consultation Rights on Government-wide Rules or Regulations

     2426.11  Requesting; granting; criteria.
       (a) An employing office shall accord consultation rights on 
     Government-wide rules or regulations to a labor organization 
     that:
       (1) Requests consultation rights on Government-wide rules 
     or regulations from an employing office; and
       (2) Holds exclusive recognition for ten percent (10%) or 
     more of the total number of employees employed by the 
     employing office.
       (b) An employing office shall not grant consultation rights 
     on Government-wide rules or regulations to any labor 
     organization that does not meet the criteria prescribed in 
     paragraph (a) of this section.
     2426.12  Requests; petition and procedures for determination 
         of eligibility for consultation rights on Government-wide 
         rules or regulations.
       (a) Requests by labor organizations for consultation rights 
     on Government-wide rules or regulations shall be submitted in 
     writing to the headquarters of the employing office, which 
     headquarters shall have fifteen (15) days from the date of 
     service of such request to respond thereto in writing.
       (b) Issues relating to a labor organization's eligibility 
     for, or continuation of, consultation rights on Government-
     wide rules or regulations shall be referred to the Board for 
     determination as follows:
       (1) A petition for determination of the eligibility of a 
     labor organization for consultation rights under criteria set 
     forth in Sec. 2426.11 may be filed by a labor organization.
       (2) A petition for determination of eligibility for 
     consultation rights shall be submitted on a form prescribed 
     by the Board and shall set forth the following information:
       (i) Name and affiliation, if any, of the petitioner and its 
     address and telephone number;
       (ii) A statement that the petitioner has submitted to the 
     employing office and to the Assistant Secretary a roster of 
     its officers and representatives, a copy of its constitution 
     and bylaws, and a statement of its objectives;
       (iii) A declaration by the person signing the petition, 
     under the penalties of the Criminal Code (18 U.S.C. 1001), 
     that its contents are true and correct to the best of such 
     person's knowledge and belief;
       (iv) The signature of the petitioner's representative, 
     including such person's title and telephone number;
       (v) The name, address, and telephone number of the 
     employing office in which the petitioner seeks to obtain or 
     retain consultation rights on Government-wide rules or 
     regulations, and the persons to contact and their titles, if 
     known;
       (vi) A showing that petitioner meets the criteria as 
     required by Sec. 2426.11; and
       (vii) A statement, as appropriate:
       (A) That such showing has been made to and rejected by the 
     employing office, together with a statement of the reasons 
     for rejection, if any, offered by that employing office;
       (B) That the employing office has served notice of its 
     intent to terminate existing consultation rights on 
     Government-wide rules or regulations, together with a 
     statement of the reasons for termination; or
       (C) That the employing office has failed to respond in 
     writing to a request for consultation rights on Government-
     wide rules or regulations made under Sec. 2426.12(a) within 
     fifteen (15) days after the date the request is served on the 
     employing office.
       (3) The following regulations govern petitions filed under 
     this section:
       (i) A petition for determination of eligibility for 
     consultation rights on Government-wide rules or regulations 
     shall be filed with the Executive Director.
       (ii) An original and four (4) copies of a petition shall be 
     filed, together with a statement of any other relevant facts 
     and of all correspondence.
       (iii) Copies of the petition together with the attachments 
     referred to in paragraph (b)(3)(ii) of this section shall be 
     served by the petitioner on the employing office, and a 
     written statement of such service shall be filed with the 
     Executive Director.
       (iv) A petition shall be filed within thirty (30) days 
     after the service of written notice by the employing office 
     of its refusal to accord consultation rights on Government-
     wide rules or regulations pursuant to a request under 
     Sec. 2426.12(a) or its intention to terminate such existing 
     consultation rights. If an employing office fails to respond 
     in writing to a request for consultation rights on 
     Government-wide rules or regulations made under 
     Sec. 2426.12(a) within fifteen (15) days after the date the 
     request is served on the employing office, a petition shall 
     be filed within thirty (30) days after the expiration of such 
     fifteen (15) day period.
       (v) If an employing office wishes to terminate consultation 
     rights on Government-wide rules or regulations, notice of its 
     intention to do so shall be served not less than thirty (30) 
     days prior to the intended termination date. A labor 
     organization, after receiving such notice, may file a 
     petition within the time period prescribed herein, and 
     thereby cause to be stayed further action by the employing 
     office pending disposition of the petition. If no petition 
     has been filed within the provided time period, an employing 
     office may terminate such consultation rights.
       (vi) Within fifteen (15) days after the receipt of a copy 
     of the petition, the employing office shall file a response 
     thereto with the Executive Director raising any matter which 
     is relevant to the petition.
       (vii) The Executive Director, on behalf of the Board, shall 
     make such investigation as the Executive Director deems 
     necessary and thereafter shall issue and serve on the parties 
     a determination with respect to the eligibility for 
     consultation rights which shall be final: Provided, however, 
     that an application for review of the Executive Director's 
     determination may be filed with the Board in accordance with 
     the procedure set forth in Sec. 2422.31 of this subchapter. A 
     determination by the Executive Director to issue a notice of 
     investigatory hearing shall not be subject to the filing of 
     an application for review. On behalf of the Board, the 
     Executive Director, if appropriate, may cause a notice of 
     investigatory hearing to be issued where substantial factual 
     issues exist warranting a hearing. Investigatory hearings 
     shall be conducted by the Executive Director or her designee 
     in accordance with Sec. 2422.17 through Sec. 2422.22 of this 
     chapter and after the close of the investigatory hearing a 
     Decision and Order shall be issued by the Board in accordance 
     with Sec. 2422.30 of this subchapter.
     Sec. 2426.13  Obligation to consult.
       (a) When a labor organization has been accorded 
     consultation rights on Government-wide rules or regulations, 
     the employing office which has granted those rights shall, 
     through appropriate officials, furnish designated 
     representatives of the labor organization:
       (1) Reasonable notice of any proposed Government-wide rule 
     or regulation issued by the employing office affecting any 
     substantive change in any condition of employment; and
       (2) Reasonable time to present its views and 
     recommendations regarding the change.
       (b) If a labor organization presents any views or 
     recommendations regarding any proposed substantive change in 
     any condition of employment to an employing office, that 
     employing office shall:
       (1) Consider the views or recommendations before taking 
     final action on any matter with respect to which the views or 
     recommendations are presented; and
       (2) Provide the labor organization a written statement of 
     the reasons for taking the final action.

          PART 2427--GENERAL STATEMENTS OF POLICY OR GUIDANCE

     Sec.
     2427.1  Scope.
     2427.2  Requests for general statements of policy or 
         guidance.

[[Page H5170]]

     2427.3  Content of request.
     2427.4  Submissions from interested parties.
     2427.5  Standards governing issuance of general statements of 
         policy or guidance.
     Sec. 2427.1  Scope.
       This part sets forth procedures under which requests may be 
     submitted to the Board seeking the issuance of general 
     statements of policy or guidance under 5 U.S.C. 7105(a)(1), 
     as applied by the CAA.
       Sec. 2427.2  Requests for general statements of policy or 
     guidance.
       (a) The head of an employing office (or designee), the 
     national president of a labor organization (or designee), or 
     the president of a labor organization not affiliated with a 
     national organization (or designee) may separately or jointly 
     ask the Board for a general statement of policy or guidance. 
     The head of any lawful association not qualified as a labor 
     organization may also ask the Board for such a statement 
     provided the request is not in conflict with the provisions 
     of chapter 71 of title 5 of the United States Code, as 
     applied by the CAA, or other law.
       (b) The Board ordinarily will not consider a request 
     related to any matter pending before the Board or General 
     Counsel.
     Sec. 2427.3  Content of request.
       (a) A request for a general statement of policy or guidance 
     shall be in writing and must contain:
       (1) A concise statement of the question with respect to 
     which a general statement of policy or guidance is requested 
     together with background information necessary to an 
     understanding of the question;
       (2) A statement of the standards under Sec. 2427.5 upon 
     which the request is based;
       (3) A full and detailed statement of the position or 
     positions of the requesting party or parties;
       (4) Identification of any cases or other proceedings known 
     to bear on the question which are pending under the CAA; and
       (5) Identification of other known interested parties.
       (b) A copy of each document also shall be served on all 
     known interested parties, including the General Counsel, 
     where appropriate.
     Sec. 2427.4  Submissions from interested parties.
       Prior to issuance of a general statement of policy or 
     guidance the Board, as it deems appropriate, will afford an 
     opportunity to interested parties to express their views 
     orally or in writing.
     Sec. 2427.5  Standards governing issuance of general 
         statements of policy or guidance.
       In deciding whether to issue a general statement of policy 
     or guidance, the Board shall consider:
       (a) Whether the question presented can more appropriately 
     be resolved by other means;
       (b) Where other means are available, whether a Board 
     statement would prevent the proliferation of cases involving 
     the same or similar question;
       (c) Whether the resolution of the question presented would 
     have general applicability under chapter 71, as applied by 
     the CAA;
       (d) Whether the question currently confronts parties in the 
     context of a labor-management relationship;
       (e) Whether the question is presented jointly by the 
     parties involved; and
       (f) Whether the issuance by the Board of a general 
     statement of policy or guidance on the question would promote 
     constructive and cooperative labor-management relationships 
     in the legislative branch and would otherwise promote the 
     purposes of chapter 71, as applied by the CAA.

  PART 2428--ENFORCEMENT OF ASSISTANT SECRETARY STANDARDS OF CONDUCT 
                          DECISIONS AND ORDERS

     Sec.
     2428.1  Scope.
     2428.2  Petitions for enforcement.
     2428.3  Board decision.
     Sec. 2428.1  Scope.
       This part sets forth procedures under which the Board, 
     pursuant to 5 U.S.C. 7105(a)(2)(I), as applied by the CAA, 
     will enforce decisions and orders of the Assistant Secretary 
     in standards of conduct matters arising under 5 U.S.C. 7120, 
     as applied by the CAA.
     Sec. 2428.2  Petitions for enforcement.
       (a) The Assistant Secretary may petition the Board to 
     enforce any Assistant Secretary decision and order in a 
     standards of conduct case arising under 5 U.S.C. 7120, as 
     applied by the CAA. The Assistant Secretary shall transfer to 
     the Board the record in the case, including a copy of the 
     transcript if any, exhibits, briefs, and other documents 
     filed with the Assistant Secretary. A copy of the petition 
     for enforcement shall be served on the labor organization 
     against which such order applies.
       (b) An opposition to Board enforcement of any such 
     Assistant Secretary decision and order may be filed by the 
     labor organization against which such order applies twenty 
     (20) days from the date of service of the petition, unless 
     the Board, upon good cause shown by the Assistant Secretary, 
     sets a shorter time for filing such opposition. A copy of the 
     opposition to enforcement shall be served on the Assistant 
     Secretary.
     Sec. 2428.3  Board decision.
       The Board shall issue its decision on the case enforcing, 
     enforcing as modified, or refusing to enforce, the decision 
     and order of the Assistant Secretary.

           PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS

                        Subpart A--Miscellaneous

     Sec.
     2429.1  Transfer of cases to the Board.
     2429.2  [Reserved]
     2429.3  Transfer of record.
     2429.4  Referral of policy questions to the Board.
     2429.5  Matters not previously presented; official notice.
     2429.6  Oral argument.
     2429.7  [Reserved]
     2429.8  [Reserved]
     2429.9  [Reserved]
     2429.10  Advisory opinions.
     2429.11  [Reserved]
     2429.12  [Reserved]
     2429.13  Official time.
     2429.14  Witness fees.
     2429.15  Board requests for advisory opinions.
     2429.16  General remedial authority.
     2429.17  [Reserved]
     2429.18  [Reserved]

                    Subpart B--General Requirements

     2429.21  [Reserved]
     2429.22  [Reserved]
     2429.23  Extension; waiver.
     2429.24  [Reserved]
     2429.25  [Reserved]
     2429.26  [Reserved]
     2429.27  [Reserved]
     2429.28  Petitions for amendment of regulations.

                        Subpart A--Miscellaneous

     Sec. 2429.1  Transfer of cases to the Board.
       In any unfair labor practice case under part 2423 of this 
     subchapter in which, after the filing of a complaint, the 
     parties stipulate that no material issue of fact exists, the 
     Executive Director may, upon agreement of all parties, 
     transfer the case to the Board; and the Board may decide the 
     case on the basis of the formal documents alone. Briefs in 
     the case must be filed with the Board within thirty (30) 
     days from the date of the Executive Director's order 
     transferring the case to the Board. The Board may also 
     remand any such case to the Executive Director for further 
     processing. Orders of transfer and remand shall be served 
     on all parties.
     Sec. 2429.2  [Reserved]
     Sec. 2429.3  Transfer of record.
       In any case under part 2425 of this subchapter, upon 
     request by the Board, the parties jointly shall transfer the 
     record in the case, including a copy of the transcript, if 
     any, exhibits, briefs and other documents filed with the 
     arbitrator, to the Board.
     Sec. 2429.4  Referral of policy questions to the Board.
       Notwithstanding the procedures set forth in this 
     subchapter, the General Counsel, or theAssistant Secretary, 
     may refer for review and decision or general ruling by the 
     Board any case involving a major policy issue that arises in 
     a proceeding before any of them. Any such referral shall be 
     in writing and a copy of such referral shall be served on all 
     parties to the proceeding. Before decision or general ruling, 
     the Board shall obtain the views of the parties and other 
     interested persons, orally or in writing, as it deems 
     necessary and appropriate. The Board may decline a referral.
     Sec. 2429.5  Matters not previously presented; official 
         notice.
       The Board will not consider evidence offered by a party, or 
     any issue, which was not presented in the proceedings before 
     the Executive Director, Hearing Officer, or arbitrator. The 
     Board may, however, take official notice of such matters as 
     would be proper.
     Sec. 2429.6  Oral argument.
       The Board or the General Counsel, in their discretion, may 
     request or permit oral argument in any matter arising under 
     this subchapter under such circumstances and conditions as 
     they deem appropriate.
     Sec. 2429.7  [Reserved]
     Sec. 2429.8  [Reserved]
     Sec. 2429.9  [Reserved]
     Sec. 2429.10  Advisory opinions.
       The Board and the General Counsel will not issue advisory 
     opinions.
     Sec. 2429.11  [Reserved]
     Sec. 2429.12  [Reserved]
     Sec. 2429.13  Official time.
       If the participation of any employee in any phase of any 
     proceeding before the Board under section 220 of the CAA, 
     including the investigation of unfair labor practice charges 
     and representation petitions and the participation in 
     hearings and representation elections, is deemed necessary by 
     the Board, the Executive Director, the General Counsel, any 
     Hearing Officer, or other agent of the Board designated by 
     the Board, such employee shall be granted official time for 
     such participation, including necessary travel time, as 
     occurs during the employee's regular work hours and when the 
     employee would otherwise be in a work or paid leave status.
     Sec. 2429.14  Witness fees.
       (a) Witnesses (whether appearing voluntarily, or under a 
     subpena) shall be paid the fee and mileage allowances which 
     are paid subpenaed witnesses in the courts of the United 
     States: Provided, that any witness who is employed by the 
     Federal Government shall not be entitled to receive witness 
     fees in addition to compensation received pursuant to 
     Sec. 2429.13.
       (b) Witness fees and mileage allowances shall be paid by 
     the party at whose instance the witnesses appear, except when 
     the witness receives compensation pursuant to Sec. 2429.13.

[[Page H5171]]

     Sec. 2429.15  Board requests for advisory opinions.
       (a) Whenever the Board, pursuant to 5 U.S.C. 7105(i), as 
     applied by the CAA, requests an advisory opinion from the 
     Director of the Office of Personnel Management concerning the 
     proper interpretation of rules, regulations, or policy 
     directives issued by that Office in connection with any 
     matter before the Board, a copy of such request, and any 
     response thereto, shall be served upon the parties in the 
     matter.
       (b) The parties shall have fifteen (15) days from the date 
     of service of a copy of the response of the Office of 
     Personnel Management to file with the Board comments on that 
     response which the parties wish the Board to consider before 
     reaching a decision in the matter. Such comments shall be in 
     writing and copies shall be served upon the other parties in 
     the matter and upon the Office of Personnel Management.
     Sec. 2429.16  General remedial authority.
       The Board shall take any actions which are necessary and 
     appropriate to administer effectively the provisions of 
     chapter 71 of title 5 of the United States Code, as applied 
     by the CAA.
     Sec. 2429.17  [Reserved]
     Sec. 2429.18  [Reserved]

                    Subpart B--General Requirements

     Sec. 2429.21  [Reserved]
     Sec. 2429.22  [Reserved]
     Sec. 2429.23  Extension; waiver.
       (a) Except as provided in paragraph (d) of this section, 
     the Board or General Counsel, or their designated 
     representatives, as appropriate, may extend any time limit 
     provided in this subchapter for good cause shown, and shall 
     notify the parties of any such extension. Requests for 
     extensions of time shall be in writing and received by the 
     appropriate official not later than five (5) days before the 
     established time limit for filing, shall state the position 
     of the other parties on the request for extension, and shall 
     be served on the other parties.
       (b) Except as provided in paragraph (d) of this section, 
     the Board or General Counsel, or their designated 
     representatives, as appropriate, may waive any expired time 
     limit in this subchapter in extraordinary circumstances. 
     Request for a waiver of time limits shall state the position 
     of the other parties and shall be served on the other 
     parties.
       (c) The time limits established in this subchapter may not 
     be extended or waived in any manner other than that described 
     in this subchapter.
       (d) Time limits established in 5 U.S.C. 7105(f), 7117(c)(2) 
     and 7122(b), as applied by the CAA, may not be extended or 
     waived under this section.
     Sec. 2429.24  [Reserved]
     Sec.  2429.25  [Reserved]
     Sec. 2429.26  [Reserved]
     Sec. 2429.27  [Reserved]
     Sec. 2429.28  Petitions for amendment of regulations.
       Any interested person may petition the Board in writing for 
     amendments to any portion of these regulations. Such petition 
     shall identify the portion of the regulations involved and 
     provide the specific language of the proposed amendment 
     together with a statement of grounds in support of such 
     petition.

                         SUBCHAPTER D IMPASSES

                           PART 2470--GENERAL

                          Subpart A-- Purpose

     Sec.
     2470.1 Purpose.

                         Subpart B--Definitions

     2470.2 Definitions.

                           Subpart A--Purpose

     Sec. 2470.1 Purpose.
       The regulations contained in this subchapter are intended 
     to implement the provisions of section 7119 of title 5 of the 
     United States Code, as applied by the CAA. They prescribe 
     procedures and methods which the Board may utilize in the 
     resolution of negotiation impasses when voluntary 
     arrangements, including the services of the Federal Mediation 
     and Conciliation Service or any other third-party mediation, 
     fail to resolve the disputes.

                         Subpart B--Definitions

     Sec. 2470.2 Definitions.
       (a) The terms Executive Director, employing office, labor 
     organization, and conditions of employment as used herein 
     shall have the meaning set forth in Part 2421 of these rules.
       (b) The terms designated representative or designee of the 
     Board means a Board member, a staff member, or other 
     individual designated by the Board to act on its behalf.
       (c) The term hearing means a factfinding hearing, 
     arbitration hearing, or any other hearing procedure deemed 
     necessary to accomplish the purposes of 5 U.S.C. 7119, as 
     applied by the CAA.
       (d) The term impasse means that point in the negotiation of 
     conditions of employment at which the parties are unable to 
     reach agreement, notwithstanding their efforts to do so by 
     direct negotiations and by the use of mediation or other 
     voluntary arrangements for settlement.
       (e) The term Board means the Board of Directors of the 
     Office of Compliance.
       (f) The term party means the agency or the labor 
     organization participating in the negotiation of conditions 
     of employment.
       (g) The term voluntary arrangements means any method 
     adopted by the parties for the purpose of assisting them in 
     their resolution of a negotiation dispute which is not 
     inconsistent with the provisions of 5 U.S.C. 7119, as applied 
     by the CAA.

       PART 2471--PROCEDURES OF THE BOARD IN IMPASSE PROCEEDINGS

     Sec.
     2471.1  Request for Board consideration; request for Board 
         approval of binding arbitration.
     2471.2  Request form.
     2471.3  Content of request.
     2471.4  Where to file.
     2471.5  Copies and service.
     2471.6  Investigation of request; Board recommendation and 
         assistance; approval of binding arbitration.
     2471.7  Preliminary hearing procedures.
     2471.8  Conduct of hearing and prehearing conference.
     2471.9  Report and recommendations.
     2471.10  Duties of each party following receipt of 
         recommendations.
     2471.11  Final action by the Board.
     2471.12  Inconsistent labor agreement provisions.
     Sec. 2471.1  Request for Board consideration; request for 
         Board approval of binding arbitration.
       If voluntary arrangements, including the services of the 
     Federal Mediation and Conciliation Services or any other 
     third-party mediation, fail to resolve a negotiation impasse:
       (a) Either party, or the parties jointly, may request the 
     Board to consider the matter by filing a request as 
     hereinafter provided; or the Board may, pursuant to 5 U.S.C. 
     7119(c)(1), as applied by the CAA, undertake consideration of 
     the matter upon request of (i) the Federal Mediation and 
     Conciliation Service, or (ii) the Executive Director; or
       (b) The parties may jointly request the Board to approve 
     any procedure, which they have agreed to adopt, for binding 
     arbitration of the negotiation impasse by filing a request as 
     hereinafter provided.
     Sec. 2471.2  Request form.
       A form has been prepared for use by the parties in filing a 
     request with the Board for consideration of an impasse or 
     approval of a binding arbitration procedure. Copies are 
     available from the Executive Director, Office of Compliance.
     Sec. 2471.3  Content of request.
       (a) A request from a party or parties to the Board for 
     consideration of an impasse must be in writing and include 
     the following information:
       (1) Identification of the parties and individuals 
     authorized to act on their behalf;
       (2) Statement of issues at impasse and the summary 
     positions of the initiating party or parties with respect to 
     those issues; and
       (3) Number, length, and dates of negotiation and mediation 
     sessions held, including the nature and extent of all other 
     voluntary arrangements utilized.
       (b) A request for approval of a binding arbitration 
     procedure must be in writing, jointly filed by the parties, 
     and include the following information about the pending 
     impasse:
       (1) Identification of the parties and individuals 
     authorized to act on their behalf;
       (2) Brief description of the impasse including the issues 
     to be submitted to the arbitrator;
       (3) Number, length, and dates of negotiation and mediation 
     sessions held, including the nature and extent of all other 
     voluntary arrangements utilized;
       (4) Statement that the proposals to be submitted to the 
     arbitrator contain no questions concerning the duty to 
     bargain; and
       (5) Statement of the arbitration procedures to be used, 
     including the type of arbitration, the method of selecting 
     the arbitrator, and the arrangement for paying for the 
     proceedings or, in the alternative, those provisions of the 
     parties' labor agreement which contain this information.
     Sec. 2471.4  Where to file.
       Requests to the Board provided for in this part, and 
     inquiries or correspondence on the status of impasses or 
     other related matters, should be addressed to the Executive 
     Director, Office of Compliance.
     Sec. 2471.5  Copies and service.
       (a) Any party submitting a request for Board consideration 
     of an impasse or a request for approval of a binding 
     arbitration procedure shall file an original and one copy 
     with the Board and shall serve a copy of such request upon 
     all counsel of record or other designated representative(s) 
     of parties, upon parties not so represented, and upon any 
     mediation service which may have been utilized. When the 
     Board acts on a request from the Federal Mediation and 
     Conciliation Service or acts on a request from the Executive 
     Director, it will notify the parties to the dispute, their 
     counsel of record or designated representatives, if any, and 
     any mediation service which may have been utilized. A clean 
     copy capable of being used as an original for purposes such 
     as further reproduction may be submitted for the original. 
     Service upon such counsel or representative shall constitute 
     service upon the party, but a copy also shall be transmitted 
     to the party.
       (b) Any party submitting a response to or other document in 
     connection with a request for Board consideration of an 
     impasse or a request for approval of a binding arbitration 
     procedure shall file an original and one copy with the Board 
     and shall serve a copy of the document upon all counsel of 
     record or other designated representative(s) of parties, 
     or upon parties not so represented. A clean copy capable 
     of being used as an original for

[[Page H5172]]

     purposes such as further reproduction may be submitted for 
     the original. Service upon such counsel or representative 
     shall constitute service upon the party, but a copy also 
     shall be transmitted to the party.
       (c) A signed and dated statement of service shall accompany 
     each document submitted to the Board. The statement of 
     service shall include the names of the parties and persons 
     served, their addresses, the date of service, the nature of 
     the document served, and the manner in which service was 
     made.
       (d) The date of service or date served shall be the day 
     when the matter served is deposited in the U.S. mail or is 
     delivered in person.
       (e) Unless otherwise provided by the Board or its 
     designated representatives, any document or paper filed with 
     the Board under these rules, together with any enclosure 
     filed therewith, shall be submitted on 8 1/2" x 11 inch size 
     paper.
     Sec. 2471.6  Investigation of request; Board recommendation 
         and assistance; approval of binding arbitration.
       (a) Upon receipt of a request for consideration of an 
     impasse, the Board or its designee will promptly conduct an 
     investigation, consulting when necessary with the parties and 
     with any mediation service utilized. After due consideration, 
     the Board shall either:
       (1) Decline to assert jurisdiction in the event that it 
     finds that no impasse exists or that there is other good 
     cause for not asserting jurisdiction, in whole or in part, 
     and so advise the parties in writing, stating its reasons; or
       (2) Recommend to the parties procedures, including but not 
     limited to arbitration, for the resolution of the impasse 
     and/or assist them in resolving the impasse through whatever 
     methods and procedures the Board considers appropriate.
       (b) Upon receipt of a request for approval of a binding 
     arbitration procedure, the Board or its designee will 
     promptly conduct an investigation, consulting when necessary 
     with the parties and with any mediation service utilized. 
     After due consideration, the Board shall either approve or 
     disapprove the request; provided, however, that when the 
     request is made pursuant to an agreed-upon procedure for 
     arbitration contained in an applicable, previously negotiated 
     agreement, the Board may use an expedited procedure and 
     promptly approve or disapprove the request, normally within 
     five (5) workdays.
     Sec. 2471.7  Preliminary hearing procedures.
       When the Board determines that a hearing is necessary under 
     Sec. 2471.6, it will:
       (a) Appoint one or more of its designees to conduct such 
     hearing; and
       (b) issue and serve upon each of the parties a notice of 
     hearing and a notice of prehearing conference, if any. The 
     notice will state: (1) The names of the parties to the 
     dispute; (2) the date, time, place, type, and purpose of the 
     hearing; (3) the date, time, place, and purpose of the 
     prehearing conference, if any; (4) the name of the designated 
     representatives appointed by the Board; (5) the issues to be 
     resolved; and (6) the method, if any, by which the hearing 
     shall be recorded.
     Sec. 2471.8  Conduct of hearing and prehearing conference.
       (a) A designated representative of the Board, when so 
     appointed to conduct a hearing, shall have the authority on 
     behalf of the Board to:
       (1) Administer oaths, take the testimony or deposition of 
     any person under oath, receive other evidence, and issue 
     subpenas;
       (2) Conduct the hearing in open, or in closed session at 
     the discretion of the designated representative for good 
     cause shown;
       (3) Rule on motions and requests for appearance of 
     witnesses and the production of records;
       (4) Designate the date on which posthearing briefs, if any, 
     shall be submitted;
       (5) Determine all procedural matters concerning the 
     hearing, including the length of sessions, conduct of persons 
     in attendance, recesses, continuances, and adjournments; and 
     take any other appropriate procedural action which, in the 
     judgment of the designated representative, will promote the 
     purpose and objectives of the hearing.
       (b) A prehearing conference may be conducted by the 
     designated representative of the Board in order to:
       (1) Inform the parties of the purpose of the hearing and 
     the procedures under which it will take place;
       (2) Explore the possibilities of obtaining stipulations of 
     fact;
       (3) Clarify the positions of the parties with respect to 
     the issues to be heard; and
       (4) Discuss any other relevant matters which will assist 
     the parties in the resolution of the dispute.
     Sec. 2471.9  Report and recommendations.
       (a) When a report is issued after a hearing conducted 
     pursuant to Sec. Sec. 2471.7 and 2471.8, it normally shall be 
     in writing and, when authorized by the Board, shall contain 
     recommendations.
       (b) A report of the designated representative containing 
     recommendations shall be submitted to the parties, with two 
     (2) copies to the Executive Director, within a period 
     normally not to exceed thirty (30) calendar days after 
     receipt of the transcript or briefs, if any.
       (c) A report of the designated representative not 
     containing recommendations shall be submitted to the Board 
     with a copy to each party within a period normally not to 
     exceed thirty (30) calendar days after receipt of the 
     transcript or briefs, if any. The Board shall then take 
     whatever action it may consider appropriate or necessary to 
     resolve the impasse.
     Sec. 2471.10  Duties of each party following receipt of 
         recommendations.
       (a) Within thirty (30) calendar days after receipt of a 
     report containing recommendations of the Board or its 
     designated representative, each party shall, after conferring 
     with the other, either:
       (1) Accept the recommendations and so notify the Executive 
     Director; or
       (2) Reach a settlement of all unresolved issues and submit 
     a written settlement statement to the Executive Director; or
       (3) Submit a written statement to the Executive Director 
     setting forth the reasons for not accepting the 
     recommendations and for not reaching a settlement of all 
     unresolved issues.
       (b) A reasonable extension of time may be authorized by the 
     Executive Director for good cause shown when requested in 
     writing by either party prior to the expiration of the time 
     limits.
     Sec. 2471.11  Final action by the Board.
       (a) If the parties do not arrive at a settlement as a 
     result of or during actions taken under Sec. 2471.6(a)(2), 
     2471.7, 2471.8, 2471.9, and 2471.10, the Board may take 
     whatever action is necessary and not inconsistent with 5 
     U.S.C. chapter 71, as applied by the CAA, to resolve the 
     impasse, including but not limited to, methods and procedures 
     which the Board considers appropriate, such as directing the 
     parties to accept a factfinder's recommendations, ordering 
     binding arbitration conducted according to whatever procedure 
     the Board deems suitable, and rendering a binding decision.
       (b) In preparation for taking such final action, the Board 
     may hold hearings, administer oaths, and take the testimony 
     or deposition of any person under oath, or it may appoint or 
     designate one or more individuals pursuant to 5 U.S.C. 
     7119(c)(4), as applied by the CAA, to exercise such authority 
     on its behalf.
       (c) When the exercise of authority under this section 
     requires the holding of a hearing, the procedure contained in 
     Sec. 2471.8 shall apply.
       (d) Notice of any final action of the Board shall be 
     promptly served upon the parties, and the action shall be 
     binding on such parties during the term of the agreement, 
     unless they agree otherwise.
     2471.12  Inconsistent labor agreement provisions.
       Any provisions of the parties' labor agreements relating to 
     impasse resolution which are inconsistent with the provisions 
     of either 5 U.S.C. 7119, as applied by the CAA, or the 
     procedures of the Board shall be deemed to be superseded.

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