[Congressional Record Volume 142, Number 102 (Thursday, July 11, 1996)]
[House]
[Pages H7450-H7454]
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, July 10, 1996.
     Hon. Newt Gingrich,
     Speaker of the House, U.S. House of Representatives, 
         Washington, DC.
       Dear Mr. Speaker: Pursuant to Section 303 of the 
     Congressional Accountability Act of 1955 (2 U.S.C. 
     Sec. 1383), I am transmitting the enclosed notice of proposed 
     rulemaking for publication in the Congressional Record.
       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,
                                                  Ricky Silberman,
                                               Executive Director.
                                 ______
                                 

  Office of Compliance--The Congressional Accountability Act of 1995: 
                Proposed Amendments to Procedural Rules


                     notice of proposed rulemaking

       Summary: The Executive Director of the Office of Compliance 
     is publishing proposed amendments to the rules governing the 
     procedures for the Office of Compliance under the 
     Congressional Accountability Act (P.L. 104-1, 109 Stat. 3). 
     The proposed amendments to the procedural rules have been 
     proposed by the Board of Directors, Office of Compliance.
       Dates: Comments are due within 30 days after publication of 
     this Notice in the Congressional Record.
       Addresses: Submit written comments (an original and ten 
     copies) to the Executive Director, Office of Compliance, Room 
     LA 200, 110 Second Street, S.E., Washington, D.C. 20540-1999. 
     Those wishing to receive notification of receipts 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, D.C., 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

       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 
     employees and employing offices within the legislative 
     branch. Section 303 of the CAA directs that the Executive 
     Director of the Office of Compliance (``Office'') shall, 
     subject to the approval of the Board of Directors (``Board'') 
     of the Office, adopt rules governing the procedures for the 
     Office, and may amend those rules in the same manner. The 
     procedural rules currently in effect, approved by the Board 
     and adopted by the Executive Director, were published 
     December 22, 1995 in the Congressional Record (141 Cong. R. 
     S19239 (daily ed., Dec. 22, 1995)). The proposed revisions 
     and additions that follow amend certain of the existing 
     procedures by which the Office provides for the consideration 
     and resolution of alleged violations of the laws made 
     applicable under Part A of title II of the CAA, and establish 
     procedures for consideration of matters arising under Part D 
     of title II of the CAA, which is generally effective October 
     1, 1996.
       A summary of the proposed amendments is set forth below in 
     Section II; the text of the provisions that are proposed to 
     be added or revised is found in Section III. The Executive 
     Director invites comment from interested persons on the 
     content of these proposed amendments to the procedural rules.

       II. Summary of Proposed Amendments to the Procedural Rules

       (A) A general reorganization of the rules is proposed to 
     accommodate proposed new provisions, and, consequently, to 
     re-order the rules in a clear and logical sequence. As a 
     result, some sections will be moved and/or renumbered. Cross-
     references in appropriate sections will be modified 
     accordingly. These organizational changes are listed in the 
     following comparison table.

        Former section No.                              New section No.
Sec. 2.06  Complaints.........................................Sec. 5.01
Sec. 2.07  Appointment of the Hearing Officer.................Sec. 5.02
Sec. 2.08  Filing, Service and Size Limitations of Motions, Briefs, 
  Responses and Other Documents...............................Sec. 9.01
Sec. 2.09  Dismissal of Complaint.............................Sec. 5.03
Sec. 2.10  Confidentiality....................................Sec. 5.04
Sec. 2.11  Filing of Civil Action.............................Sec. 2.06
Sec. 8.02  Compliance with Final Decisions, Requests for EnforSec. 8.03
Sec. 8.03  Judicial Review....................................Sec. 8.04
Sec. 9.01  Attorney's Fees and Costs..........................Sec. 9.03
Sec. 9.02  Ex Parte Communications............................Sec. 9.04
Sec. 9.03  Settlement Agreements..............................Sec. 9.05
Sec. 9.04  Revocation, Amendment or Waiver of Rules...........Sec. 9.06

       (B) Several revisions are proposed to provide for 
     consideration of matters arising under section 220 (Part D of 
     title II) of the CAA, which applies certain provisions of 
     chapter 71 of title 5, United States Code relating to Federal 
     Service Labor-Management Relations (``chapter 71''). For 
     example, technical changes in the procedural rules will be 
     necessary in order to provide for the exercise by the General 
     Counsel and labor organizations of various rights and 
     responsibilities under section 220 of the Act. These proposed 
     revisions are as follows:
       Section 1.01. ``Scope and Policy'' is proposed to be 
     amended by inserting in the first sentence a reference to 
     Part D of title II of the CAA in order to clarify that the 
     procedural rules now govern procedures under that Part of the 
     Act.

[[Page H7451]]

       Section 1.02(c) is proposed to be amended to make the 
     definition of the term ``employee'' consistent with the 
     definition contained in the substantive regulations to be 
     issued by the Board under section 220 of the CAA.
       Section 1.02(i) is proposed to be amended to redefine the 
     term ``party'' to include, as appropriate, the General 
     Counsel or a labor organization.
       A new section 1.02(j) defining ``respondent'' is proposed 
     to be added. (The addition of subsection (j) will result in 
     the subsequent subsections being renumbered accordingly.)
       Section 1.05 ``Designation of Representative'' is to be 
     revised to allow for a labor organization to designate a 
     representative.
       Section 1.07(c), relating to confidentiality requirements, 
     is proposed to be amended to include a labor organization as 
     a participant within the meaning of that section.
       Section 7.04(b) concerning the scheduling of the prehearing 
     conference is modified to substitute the word ``parties'' for 
     ``employee and the employing office''.
       (C) Modifications to subsections 1.07 (b) and (d), 
     concerning confidentiality requirements, are proposed in 
     order to clarify the requirements and restrictions set forth 
     in these subsections, and to make clear that a party or its 
     representative may disclose information obtained in 
     confidential proceedings for limited purposes under certain 
     conditions.
       (D) Section 2.04 ``Mediation,'' is proposed to be amended 
     in certain respects.
       In section 204(a) the language ``including any and all 
     possibilities'' would be modified to read ``including the 
     possibility'' of reaching a resolution.
       Section 204(e)(2) is proposed to be modified to allow 
     parties jointly to request an extension of the mediation 
     period orally, instead of permitting only written requests 
     for such extensions.
       Section 2.04(f)(2) is proposed to be revised to explain 
     more fully the procedures involving the ``Agreement to 
     Mediate''.
       A new subsection 2.04(h) is proposed regarding informal 
     resolutions and settlement agreements. (The subsections 
     following the newly added subsection 2.04(h) would be 
     renumbered accordingly.)
       (E) Subpart E of the Procedural Rules had been reserved for 
     the implementation of section 220 of the CAA. The Board has 
     recently published proposed regulations pursuant to section 
     220(d) (142 Cong. R. S5070 and H5153 (daily ed., May 15, 
     1996)) and section 220(e) (142 Cong. R., S5552 and H5563 
     (daily ed., May 23, 1996)) to implement the applied 
     provisions of chapter 71. In light of those proposed 
     regulations and the proposed modifications of the procedural 
     rules discussed herein, it is not necessary to reserve a 
     subpart for procedures specific to the implementation of 
     section 220.
       (F) As discussed above, Subpart E is no longer reserved for 
     procedural rules implementing section 220 of the CAA. 
     However, as part of the general reorganization of the 
     procedural rules, Subpart E will be entitled ``Complaints,'' 
     and will consist of sections 206, 207, 209 and 210 moved from 
     Subpart B and renumbered as shown in the comparison table, 
     above.
       In addition to proposed modifications to section 5.01 
     (formerly section 206) required by the implementation of 
     section 220 (e.g. provision for the General Counsel to file 
     or amend complaints and the addition of references to labor 
     organizations as parties), section 5.01(e) is proposed to be 
     amended to state how service of a complaint will be 
     effectuated and section 501(f) is proposed to be amended to 
     provide that a failure to file an answer or to raise a claim 
     or defense as to any allegation(s) in a complaint or amended 
     complaint shall constitute an admission of such allegation(s) 
     and that affirmative defenses not raised in an answer shall 
     be deemed waived. A respondent's motion for leave to amend an 
     answer will ordinarily be granted unless to do so would 
     unduly prejudice the rights of the other party or unduly 
     delay or otherwise interfere with or impede the proceedings.
       Section 5.03 (formerly section 2.09) is proposed to be 
     revised to reflect the General Counsel's role under section 
     220 of the CAA and to provide that a Hearing Officer, not the 
     Executive Director, may approve the withdrawal of a 
     complaint.
       (G) Section 7.07, relating to the conduct of hearings, is 
     proposed to be revised to include a new subsection (e), 
     providing that ``[a]ny objection not made before a Hearing 
     Officer shall be deemed waived in the absence of clear 
     error.'' The current section 7.07(e) will be renumbered 
     section 7.07(f), and it is proposed to be amended to provide 
     that if the representative of a labor organization, as well 
     as that of an employee or a witness, has a conflict of 
     interest, that representative may be disqualified.
       (H) Subpart H, relating to proceedings before the Board, is 
     proposed to be amended in the following ways.
       (1) A new subsection 8.01(i) is proposed to allow for 
     amicus participation, as appropriate, in proceedings before 
     the Board, in a manner consistent with section 416 of the 
     CAA.
       (2) A new section 8.02 ``Reconsideration'' is proposed to 
     allow for a party to seek Board reconsideration of a final 
     decision or order of the Board. The sections following 
     section 8.02 in Subpart H would be renumbered accordingly.
       (3) Section 8.04 ``Judicial Review'' is proposed to be 
     revised to state that the United States Court of Appeals for 
     the Federal Circuit shall have jurisdiction, as appropriate, 
     over petitions under section 220(c)(3) and section 405(g) or 
     406(e) of the Act.
       (I) A new section 9.02 ``Signing of Pleadings, Motions, and 
     Other Filings; Violation of Rules; Sanctions'' is proposed to 
     be added.
       (J) A section had been reserved in the procedural rules for 
     a provision on ex parte communications. The text of the 
     proposed rule, which will be found at section 9.04 of the 
     amended rules, is set forth in Section III, below.
       (K) It is proposed that the opening sentence of section 
     9.05(a) (formerly 9.03(a)), ``Informal Resolutions and 
     Settlement Agreements'' be modified to make it clear that 
     section 9.05 applies only where covered employees have 
     initiated proceedings under the CAA.

          III. Text of Proposed Amendments to Procedural Rules

     Sec. 1.01 Scope and policy
       These rules of the Office of Compliance govern the 
     procedures for consideration and resolution of alleged 
     violations of the laws made applicable under Parts A and D of 
     title II of the Congressional Accountability Act of 1995. The 
     rules include procedures for counseling, mediation, and for 
     electing between filing a complaint with the Office of 
     Compliance and filing a civil action in a district court of 
     the United States. The rules also address the procedures for 
     the conduct of hearings held as a result of the filing of a 
     complaint and for appeals to the Board of Directors of the 
     Office of Compliance from Hearing Officer decisions, as well 
     as other matters of general applicability to the dispute 
     resolution process and to the operations of the Office of 
     Compliance. It is the policy of the Office that these rules 
     shall be applied with due regard to the rights of all parties 
     and in a manner that expedites the resolution of disputes.
     Sec. 1.02(c)
       Employee. The term ``employee'' includes an applicant for 
     employment and a former employee, except as provided in 
     section 2421.3(b) of the Board's rules under section 220 of 
     the Act.
     Sec. 1.02(i)
       Party. The term ``party'' means: (1) the employee or the 
     employing office in a proceeding under Part A of title II of 
     the Act; or (2) the labor organization, individual employing 
     office or employing activity, or, as appropriate, the General 
     Counsel in a proceeding under Part D of title II of the Act.
     Sec. 1.02(j)
       Respondent. The term ``respondent'' means the party against 
     which a complaint is filed.
     Sec. 1.05 Designation of Representative.
       (a) An employee, a witness, a labor organization, or an 
     employing office wishing to be represented by another 
     individual must file with the Office a written notice of 
     designation of representative. The representative may be, but 
     is not required to be, an attorney.
       (b) Service where there is a representative. All service of 
     documents shall be directed to the representative, unless the 
     represented individual, labor organization, or employing 
     office specifies otherwise and until such time as that 
     individual, labor organization, or employing office notifies 
     the Executive Director of an amendment or revocation of the 
     designation of representative. Where a designation of 
     representative is in effect, all time limitations for receipt 
     of materials by the represented individual or entity shall be 
     computed in the same manner as for unrepresented individuals 
     or entities with service of the documents, however, directed 
     to the representative, as provided.
     Sec. 1.07(b)
       Prohibition. Unless specifically authorized by the 
     provisions of the CAA or by order of the Board, the Hearing 
     Officer or a court, or by the procedural rules of the Office, 
     no participant in counseling, mediation or other proceedings 
     made confidential under section 416 of the CAA 
     (``confidential proceedings'') may disclose the contents or 
     records of those proceedings to any person or entity. Nothing 
     in these rules prohibits a bona fide representative of a 
     party under section 1,05 from engaging in communications with 
     that party for the purpose of participation in the 
     proceedings, provided that such disclosure is not made in the 
     presence of individuals not reasonably necessary to the 
     representative's representation of that party. Moreover, 
     nothing in these rules prohibits a party or its 
     representative from disclosing information obtained in 
     confidential proceedings for the limited purposes of 
     investigating claims, ensuring compliance with the Act or 
     preparing its prosecution or defense, to the extent that such 
     disclosure is reasonably necessary to accomplish the 
     aforementioned purposes and provided that the party making 
     the disclosure takes all reasonably appropriate steps to 
     ensure that persons to whom the information is disclosed 
     maintain the confidentiality of such information.
     Sec. 1.07(c)
       Participant. For the purposes of this rule, participant 
     means any individual, labor organization, employing office or 
     party, including a designated representative, that becomes a 
     participant in counseling under section 402, mediation under 
     section 403, the complaint and hearing process under section 
     405, or an appeal to the Board under section 406 of the Act, 
     or any related proceeding which is expressly or by necessity 
     deemed confidential under the Act or these rules.

[[Page H7452]]

     Sec. 1.07(d)
       Contents or records of confidential proceedings. For the 
     purpose of this rule, the contents or records of counseling, 
     mediation or other proceeding includes the information 
     disclosed by participants to the proceedings, and records 
     disclosed by either the opposing party, witnesses or the 
     Office. A participant is free to disclose facts and other 
     information obtained from any source outside of the 
     confidential proceedings. For example, an employing office or 
     its representatives may disclose information about its 
     employment practices and personnel actions, provided that the 
     information was not obtained in a confidential proceeding. 
     However, an employee who obtains that information in 
     mediation or other confidential proceeding may not disclose 
     such information.
       Similarly, information forming the basis for the allegation 
     of a complaining employee may be disclosed by that employee, 
     provided that the information contained in those allegations 
     was not obtained in a confidential proceeding. However, the 
     employing office or its representatives may not disclose that 
     information if it was obtained in a confidential proceeding.
     Sec. 2.04(a)
       (a) Explanation. Mediation is a process in which employees, 
     employing offices and their representatives, if any, meet 
     separately and/or jointly with a neutral trained to assist 
     them in resolving disputes. As parties to the mediation, 
     employees, employing offices and their representatives 
     discuss alternatives to continuing their dispute, including 
     the possibility of reaching a voluntary, mutually 
     satisfactory resolution. The neutral has no power to impose a 
     specific resolution, and the mediation process, whether or 
     not a resolution is reached, is strictly confidential, 
     pursuant to section 416 of the Act.
     Sec. 2.04(f)(2)
       (2) The Agreement to Mediate. At the commencement of the 
     mediation, the neutral will ask the parties to sign an 
     agreement prepared by the Office (``the Agreement to 
     Mediate''). The Agreement to Mediate will set out the 
     conditions under which mediation will occur, including the 
     requirement that the participants adhere to the 
     confidentiality of the process. The Agreement to Mediate will 
     also provide that the parties to the mediation will not seek 
     to have the counselor or the neutral participate, testify or 
     otherwise present evidence in any subsequent civil action 
     under section 408 of the Act or any other proceeding.
     2.04(h)
       Informal Resolutions and Settlement Agreements. At any time 
     during mediation the parties may resolve or settle a dispute 
     in accordance with section 9.05 of these rules.
     Sec. 5.01 (formerly Sec. 2.06) Complaints
       (a) Who may file.
       (1) An employee who has completed mediation under section 
     2.04 may timely file a complaint with the Office alleging any 
     violation of sections 201 through 107 of the Act.
       (2) The General Counsel may file a complaint alleging a 
     violation of section 220 of the Act.
       (b) When to file.
       (1) A complaint may be filed by an employee no sooner than 
     30 days after the date of receipt of the notice under section 
     2.04(i), but no later than 90 days after receipt of that 
     notice.
       (2) A complaint may be filed by the General Counsel after 
     the investigation of a charge filed under section 220 of the 
     Act.
       (c) Form and Contents.
       (1) Complaints filed by covered employees. A complaint 
     shall be written or typed on a complaint form available from 
     the Office. All complaints shall be signed by the covered 
     employee, or his or her representative, and shall contain the 
     following information:
       (i) the name, mailing address, and telephone number(s) of 
     the complainant;
       (ii) the name, address and telephone number of the 
     employing office against which the complaint is brought;
       (iii) the name(s) and title(s) of the individual(s) 
     involved in the conduct that the employee claims is a 
     violation of the Act;
       (iv) a description of the conduct being challenged, 
     including the date(s) of the conduct;
       (v) a brief description of why the complainant believes the 
     challenged conduct is a violation of the Act and the 
     section(s) of the Act involved;
       (vi) a statement of the relief or remedy sought; and
       (vii) the name, address, and telephone number of the 
     representative, if any, who will act on behalf of the 
     complainant.
       (2) Complaints filed by the General Counsel. A compliant 
     filed by the General Counsel shall be typed, signed by the 
     General Counsel or his designee and shall contain the 
     following information:
       (i) the name, address and telephone number of the employing 
     office and/or labor organization alleged to have violated 
     section 220 against which the compliant is brought;
       (ii) notice of the charge filed alleging a violation of 
     section 220;
       (iii) a description of the acts and conduct that are 
     alleged to be violations of the Act, including all relevant 
     dates and places and the names and titles of the responsible 
     individuals; and
       (iv) a statement of the relief or remedy sought.
       (d) Amendments. Amendments to the complaint may be 
     permitted by the Office or, after assignment, by a Hearing 
     Officer, on the following conditions: that all parties to the 
     proceeding have adequate notice to prepare to meet the new 
     allegations; that the amendments, as appropriate, relate to 
     the violations for which the employee has completed 
     counseling and mediation, or relate to the charge(s) 
     investigated by the General Counsel; and that permitting such 
     amendments will not unduly prejudice the rights of the 
     employing office, the labor organization, or other parties, 
     unduly delay the completeion of the hearing or otherwise 
     interfere with or impede the proceedings.
       (e) Service of Complaint. Upon receipt of a complaint or an 
     amended complaint, the Office shall serve the respondent, or 
     its designated representative, by hand delivery or certified 
     mail, with a copy of the complaint or amended complaint and a 
     copy of these rules. The Office shall include a service list 
     containing the names and addresses of the parties and their 
     designated representatives.
       (f) Answer. Within 15 days after receipt of a copy of a 
     complaint or an amended complaint, the respondent shall file 
     an answer with the Office and serve one copy on the 
     complainant. The answer shall contain a statement of the 
     position of the respondent on each of the issues raised in 
     the complaint or amended complaint, including admissions, 
     denials, or explanations of each allegation made in the 
     complaint and any affirmative defenses or other defenses to 
     the complaint.
       Failure to file an answer or to raise a claim or defense as 
     to any allegation(s) shall constitute an admission of such 
     allegation(s). Affirmative defense not raised in an answer 
     shall be deemed waived. A respondent's motion for leave to 
     amend an answer will ordinarily be granted unless to do so 
     would unduly prejudice the rights of the other party or 
     unduly delay or otherwise interfere with or impede the 
     proceedings.
     Sec. 5.03 (formerly Sec. 2.09) Dismissed of Complaints
       (a) A Hearing Officer may, after notice and an opportunity 
     to respond, dismiss any claim that the Hearing Officer finds 
     to be frivolous or that fails to state a claim upon with 
     relief may be granted, including, but not limited to, claims 
     that were not advanced in counseling or mediation.
       (b) A Hearing Officer may, after notice and an opportunity 
     to respond, dismiss a complaint because it fails to comply 
     with the applicable time limits or other requirements under 
     the Act or these rules.
       (c) If the General Counsel or any complainant fails to 
     proceed with an action, the Hearing Officer may dismiss the 
     complaint with prejudice.
       (d) Appeal. A dismissal by the Hearing Officer made under 
     section 5.03(a)-(c) or 7.16 of these rules may be subject to 
     appeal before the Board if the aggrieved party files a timely 
     petition for review under section 8.01.
       (e) Withdrawal of Complaint by Complainant. At any time a 
     complainant may withdraw his or her own complaint by filing a 
     notice with the Office for transmittal to the Hearing Officer 
     and by serving a copy on the employing office or 
     representative. Any such withdrawal must be approved by the 
     Hearing Officer.
       (f) Withdrawal of Complaint by the General Counsel. At any 
     time to the opening of the hearing the General Counsel may 
     withdraw his complaint by filing a notice with the Executive 
     Director and the Hearing Officer and by serving a copy on the 
     respondent. After opening of the hearing, any such withdrawal 
     must be approved by the Hearing Officer.
     Sec. 7.04(b)
       Scheduling of the Prehearing Conference. Within 7 days 
     after assignment, the Hearing Officer shall serve on the 
     parties and their designated representatives written notice 
     setting forth the time, date, and place of the prehearing 
     conference.
     Sec. 7.07(E)
       (e) Any objection not made before a Hearing Officer shall 
     be deemed waived in the absence of clear error.
     Sec. 7.07(f)
       (f) If the Hearing Officer concludes that a representative 
     of an employee, a witness, a labor organization or an 
     employing office has a conflict of interest, he or she may, 
     after giving the representative an opportunity to respond, 
     disqualify the representative. In that event, within the time 
     limits for hearing and decision established by the Act, the 
     affected party will have a reasonable time to retain other 
     representation.
     Sec. 8.01(i)
       The Board may invite amicus participation, in appropriate 
     circumstances, in a manner consistent with the requirements 
     of section 416 of the CAA.
     Sec. 8.02 Reconsideration
       After a final decision or order of the Board has been 
     issued, a party to the proceeding before the Board, who can 
     establish in its moving papers that reconsideration is 
     necessary because the Board has overlooked or misapprehended 
     points of law or fact, may move for reconsideration of such 
     final decision or order. The motion shall be filed within 15 
     days after service of the Board's decision or order. No 
     response shall be filed unless the Board so orders. The 
     filing and pendency of a motion under this provision shall 
     not operate to stay the action of the Board unless so ordered 
     by the Board.
     Sec. 8.04 Judicial Review
       Pursuant to section 407 of the Act--
       (a) the United States Court of Appeals for the Federal 
     Circuit shall have jurisdiction

[[Page H7453]]

     over any proceeding commenced by a petition or:
       (1) a party aggrieved by a final decision of the Board 
     under section 406(e) in cases arising under part A of title 
     II, or
       (2) the General Counsel or a respondent before the Board 
     who files a petition under section 220(c)(3) of the Act.
       (b) The U.S. Court of Appeals for the Federal Circuit shall 
     have jurisdiction over any petition of the General Counsel, 
     filed in the name of the Office and at the direction of the 
     Board, to enforce a final decision under section 405(g) or 
     406(e) with respect to a violation of part A or D of title II 
     of the Act.
       (c) The party filing a petition for review shall serve a 
     copy on the opposing party or parties or their 
     representative(s).
     Sec. 9.02 Signing of Pleadings, Motions and Other Filings; 
         Violation of Rules; Sanctions
       Every pleading, motion, and other filing of a party 
     represented by an attorney or other designated representative 
     shall be signed by the attorney or representative. A party 
     who is not represented shall sign the pleading, motion or 
     other filing. The signature of a representative or party 
     constitutes a certificate by the signer that the signer has 
     read the pleading, motion, or other filing; that to the best 
     of the signer's knowledge, information, and belief formed 
     after reasonable inquiry, it is well grounded in fact and is 
     warranted by existing law or a good faith argument for the 
     extension, modification, or reversal of existing law, and 
     that it is not interposed for any improper purpose, such as 
     to harass or to cause unnecessary delay or needless increase 
     in the cost of litigation. If a pleading, motion, or other 
     filing is not signed, it shall be stricken unless it is 
     signed promptly after the omission is called to the attention 
     of the person who is required to sign. If a pleading, motion, 
     or other filing is signed in violation of this rule, a 
     Hearing Officer or the Board, as appropriate, upon motion or 
     upon its own initiative, shall impose upon the person who 
     signed it, a represented party, or both, an appropriate 
     sanction, which may include an order to pay to the other 
     party or parties the amount of the reasonable expenses 
     incurred because of the filing of the pleading, motion, or 
     other filing, including a reasonable attorney's fee. A 
     Hearing Officer or the Board, as appropriate, upon motion or 
     its own initiative may also impose an appropriate sanction, 
     which may include the sanctions specified in section 7.02, 
     for any other violation of these rules that does not result 
     from reasonable error.
     Sec. 9.04 Ex parte Communications.
       (a) Definitions.
       (1) The term person outside the Office means any individual 
     not an employee or agent of the office, any labor 
     organization and agent thereof, and any employing office and 
     agent thereof, and the General Counsel and any agent thereof 
     when prosecuting a complaint proceeding before the Office 
     pursuant to sections 210, 215, or 220 of the CAA. The term 
     also includes any employee of the Office who becomes a party 
     or a witness for a party other than the Office in proceedings 
     as defined in these rules.
       (2) The term ex parte communication means an oral or 
     written communication (a) that is between an interested 
     person outside the Office and a Board member or Hearing 
     Officer who is or may reasonably be expected to be involved 
     in a proceeding or a rulemaking; (b) that is related to a 
     proceeding or a rulemaking; (c) that is not made on the 
     public record; (d) that is not made in the presence of all 
     parties to a proceeding or a rulemaking; and (5) that is 
     made without reasonable prior notice to all parties to a 
     proceeding or a rulemaking.
       (3) For purposes of section 9.04, the term proceeding means 
     the complaint and hearing proceeding under section 405 of the 
     CAA, an appeal to the Board under section 406 of the CAA, 
     pre-election investigatory hearing under section 220 of the 
     CAA, and any other proceeding of the Office established 
     pursuant to regulations issued by the Board under the CAA.
       (4) The term period of rulemaking means the period 
     commencing with the issuance of an advance notice of proposed 
     rulemaking or of a notice of proposed rulemaking, whichever 
     issues first, and concluding with the issuance of a final 
     rule.
       (b) Exception to Coverage. The rules set forth in this 
     section do not apply during periods that the Board designates 
     as periods of negotiated rulemaking.
       (c) Prohibited Ex Parte Communications and Exceptions.
       (1) During a proceeding, it is prohibited knowingly to make 
     or cause to be made:
       (i) a written ex parte communication if copies thereof are 
     not promptly served by the communicator on all parties to the 
     proceeding in accordance with section 9.01 of these Rules; or
       (ii) an oral ex parte communication unless all parties have 
     received advance notice thereof by the communicator and have 
     an adequate opportunity to be present.
       (2) During the period of rulemaking, it is prohibited 
     knowingly to make or cause to be made a written or an oral ex 
     parte communication. During the period of rulemaking, the 
     Office shall treat any written ex parte communication as a 
     comment in response to the advance notice of proposed 
     rulemaking or the notice of proposed rulemaking, whichever is 
     pending, and such communications will therefore be part of 
     the public rulemaking record.
       (3) Notwithstanding the prohibited set forth in (1) and 
     (2), the following ex parte communications are not 
     prohibited:
       (i) those which relate solely to matters which the Board 
     member or Hearing Officer is authorized by law, Office rules, 
     or order of the Board or Hearing Officer to entertain or 
     dispose of on an ex parte basis;
       (ii) those which all parties to the proceeding agree, or 
     which the responsible official formally rule, may be made on 
     an ex parte basis;
       (iii) those which concern only matters of general 
     significance to the field of labor and employment law or 
     administrative practice;
       (iv) those from the General Counsel to the Office or the 
     Board when the General Counsel is acting on behalf of the 
     Office or the Board under any section of the CAA; and
       (v) those which could not reasonably be construed to create 
     either unfairness or the appearance of unfairness in a 
     proceeding or rulemaking.
       (4) It is prohibited knowingly to solicit or cause to be 
     solicited any prohibited ex parte communication.
       (d) Reporting of Prohibited Ex Parte Communications.
       (1) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking and who determines that he or she is being asked 
     to receive a prohibited ex parte communication shall refuse 
     to do so and inform the communicator of this rule.
       (2) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding who 
     knowingly receives a prohibited ex parte communication shall 
     (a) notify the parties to the proceeding that such a 
     communication has been received; and (b) provide the parties 
     with a copy of the communication and of any response thereto 
     (if written) or with a memorandum stating the substance of 
     the communication and any response thereto (if oral). If a 
     proceeding is then pending before either the Board or a 
     Hearing Officer, and if the Board or Hearing Officer so 
     orders, these materials shall then be placed in the record of 
     the proceeding. Upon order of the Hearing Officer or the 
     Board, the parties may be provided with a full opportunity to 
     respond to the alleged prohibited ex parte communication and 
     to address what action, if any, should be taken in the 
     proceeding as a result of the prohibited communication.
       (3) Any Board member involved in a rulemaking who knowingly 
     receives a prohibited ex parte communication shall cause to 
     be published in the Congressional Record a notice that such a 
     communication has been received and a copy of the 
     communication and of any response thereto (if written) or 
     with a memorandum stating the substance of the communication 
     and any response thereto (if oral). Upon order of the Board, 
     these materials shall then be placed in the record of the 
     rulemaking and the Board shall provide interested persons 
     with a full opportunity respond to the alleged prohibited ex 
     parte communication and to address what action, if any, 
     should be taken in the proceeding as a result of the 
     prohibited communication.
       (4) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking and who knowingly receives a prohibited ex parte 
     communication and who fails to comply with the requirements 
     of subsections (1), (2), or (3) above, is subject to internal 
     censure or discipline through the same procedures that the 
     Board utilizes to address and resolve ethical issues.
       (e) Penalties and Enforcement.
       (1) Where a person is alleged to have made or caused 
     another to make a prohibited ex parte communication, the 
     Board or the Hearing Officer (as appropriate) may issue to 
     the person a notice to show cause, returnable within a stated 
     period not less than seven days from the date thereof, why 
     the Board or the Hearing Officer should not determine that 
     the interests of law or justice require that the person be 
     sanctioned by, where applicable, dismissal of his or her 
     claim or interest, the striking of his or her answer, or the 
     imposition of a some other appropriate sanction, including 
     but not limited to the award of attorneys' fees and costs 
     incurred in responding to a prohibited ex parte 
     communication.
       (2) Upon notice and hearing, the Board may censure or 
     suspend or revoke the privilege of practice before the Office 
     of any person who knowingly and willfully makes, solicits, or 
     causes the making of any prohibited ex parte communication. 
     Before formal proceedings under this subsection are 
     instituted, the Board shall first provide notice in writing 
     that it proposes to take such action and that the person or 
     persons may show cause within a period to be stated why the 
     Board should not take such action. Any hearings under this 
     section shall be conducted by a Hearing Officer subject to 
     Board review under section 8.01 of these Rules.
       (3) Any Board member or Hearing Officer who is or may 
     reasonably be expected to be involved in a proceeding or a 
     rulemaking and who knowingly makes or causes to be made a 
     prohibited ex parte communication is subject to internal 
     censure or discipline through the same procedures that the 
     Board utilizes to address and resolve ethical issues.
     Sec. 9.05(a)
       (a) Informal Resolution. At any time before a covered 
     employee who has filed a formal request for counseling files 
     a complaint under section 405, a covered employee and the 
     employing office, on their own, may agree voluntarily and 
     informally to resolve a dispute, so long as the resolution 
     does not require a waiver of a covered employee's

[[Page H7454]]

     rights or the commitment by the employing office to an 
     enforceable obligation.
       Signed at Washington, D.C., on this 10th day of July, 1996.

                                           R. Gaull Silberman,

                                               Executive Director,
     Office of Compliance.

                          ____________________