[Congressional Record Volume 142, Number 102 (Thursday, July 11, 1996)]
[House]
[Pages H7454-H7472]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NOTICE OF ADOPTION OF REGULATIONS

                                                    U.S. Congress,


                                         Office of Compliance,

                                     Washington, DC, July 9, 1996.
     Hon. Newt Gingrich,
     Speaker of the House, U.S. House of Representatives, 
         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 Adoption of Regulations and 
     Submission for Approval for publication in the Congressional 
     Record. The notice, which the Board has approved, is being 
     issued pursuant to Sec. 220(d).
       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 ADOPTION OF REGULATIONS AND SUBMISSION FOR APPROVAL

       Summary: The Board of Directors of the Office of 
     Compliance, after considering comments to its Notice of 
     Proposed Rulemaking published May 15, 1996 in the 
     Congressional Record, has adopted, and is submitting for 
     approval by the Congress, final regulations implementing 
     section 220 of the Congressional Accountability Act of 1995, 
     Pub. L. 104-1, 109 Stat. 3. Specifically, these regulations 
     are adopted under section 220(d) of the CAA.
       For Further Information Contact: Executive Director, Office 
     of Compliance, Room LA 200, John Adams Building, 110 Second 
     Street, S.E., Washington, DC 20540-1999, Telephone: (202) 
     724-9250.


                       SUPPLEMENTARY INFORMATION

                       I. Background and Summary

        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.''
        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).
        On May 15, 1996, the Board published in the Congressional 
     Record a Notice of Proposed Rulemaking (``NPR'') (142 Cong. 
     R. S5070-89, H5153-72 (daily ed., May 15, 1996). In response 
     to the NPR, the Board received three written comments, two of 
     which were from offices of the Congress and one of which was 
     from a labor organization.
        Parenthetically, it should also be noted that, on May 23, 
     1996, the Board published a Notice of Proposed Rulemaking 
     (142 Cong. R. S5552-56, H5563-68 (daily ed., May 23, 1996)) 
     inviting comments from interested parties on proposed 
     regulations under section 220(e). That subsection 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.'' Final regulations under section 220(e) 
     will be adopted and submitted for Congressional approval 
     separately.

             II. Consideration of Comments and Conclusions

           A. Investigative and adjudicatory responsibilities

        In the NPR, the Board proposed that, like the FLRA , it 
     would decide representation issues, negotiability issues and 
     exceptions to arbitral awards based upon a record developed 
     through direct submissions from the parties and, where 
     necessary, through further investigation by the Board 
     (through the person of the Executive Director). Under the 
     Board's proposed rule, only unfair labor practice issues (and 
     not representation, arbitrability or negotiability issues) 
     would be referred to hearing officers for initial decision 
     under section 405 of the CAA.
       One commenter expressly approved of this proposal. 
     Conversely, two commenters argued that the proposal violates 
     the plain and unambiguous language of the statute, which they 
     read as requiring the Board to refer all section 220 issues, 
     including representation, arbitrability, and negotiability 
     issues, to hearing officers for initial decision under 
     section 405.
       Contrary to the argument that the statutory text 
     unambiguously requires referral of representation, 
     arbitrability, and negotiability issues (as well as unfair 
     labor practice issues) to hearing officers for initial 
     decision pursuant to section 405, section 220(c)(1) simply 
     does not define the ``matter[s]'' that must be referred to 
     hearing officers for initial decision under section 405, much 
     less specify that these ``matter[s]'' include disputed issues 
     of representation, negotiability and/or arbitrability. 
     Moreover, contrary to the assumption of the commenters, there 
     is no sound reason to assume that the ``matter[s]'' that the 
     Board must refer to hearing officers for initial decision 
     under section 405 are co-extensive with the ``petition[s], or 
     other submission[s]'' that the Board receives under section 
     220(c)(1). Since Congress did not require the Board to refer 
     to a hearing officer for initial decision ``any petition or 
     other submission'' that it receives under section 220(c)(1), 
     but rather only ``any matter under this paragraph,'' the 
     interpretive presumption in fact must be that the 
     ``matter[s]'' which the Board must refer are not co-extensive 
     with the ``petitions or other submissions'' that it receives 
     under section 220(c)(1) (but, rather, are only a subset of 
     them.) Whether or not this interpretative presumption can be 
     overcome by other relevant interpretive materials, it is 
     plain that, contrary to the assertion of the commenters, the 
     statutory text is in fact seriously ambiguous about whether 
     controversies involving representation, negotiability, and 
     arbitrability issues are ``matter[s]'' within the meaning of 
     section 220(c)(1) that must be referred to a Hearing Officer 
     pursuant to section 405.
       Moreover, as explained in the NPR, this textual ambiguity 
     is best resolved by interpreting the statutory phrase 
     ``matter'' in section 220(c)(1) to encompass only 
     controversies involving disputed unfair labor practice 
     issues. The term ``matter'' in section 220(c)(1) simply does 
     not appear to refer to representation or other such issues 
     arising out of the Board's ``investigative authorities.'' 
     Indeed, section 220(c)(1) expressly contemplates that the 
     Board may direct the General Counsel (and, a fortiori, not a 
     hearing officer) to carry out these ``investigative 
     authorities,'' which under chapter 71 include the authority, 
     for example, to decide (and not, as one commenter suggests, 
     merely to investigate) disputed representation issues such as 
     whether an individual must be excluded from a unit because he 
     or she is a supervisor.
       Under chapter 71, only controversies involving unfair labor 
     practice issues are subject to formal adversarial processes 
     like those established by section 405; and nothing in the 
     CAA's legislative history shows that Congress understood 
     itself to be departing from chapter 71 in this respect. In 
     these circumstances, under the CAA, the textual ambiguity 
     must be resolved by reference to the interpretive presumption 
     that Congress has subjected itself to the same rules that the 
     executive branch is subject to under chapter 71.
       Furthermore, contrary to the suggestion of one commenter, 
     the reference in the last sentence of section 220(c)(2) to 
     initial hearing officer consideration of unfair labor 
     practice complaints does not detract in any way from the 
     Board's construction of the term ``matter'' in section 
     220(c)(1). The Board's construction of the term ``matter'' in 
     section 220(c)(1) simply does not render this reference in 
     section 220(c)(2) to initial hearing officer consideration of 
     unfair labor practice complaints ``redundant and 
     meaningless,'' as the commenter claims; rather, the reference 
     in section 220(c)(2) simply completes the statute's 
     instruction to the General Counsel concerning how he should 
     process a controversy involving an unfair labor practice 
     issue (just as section 220(c)(1) in parallel instructs the 
     Board concerning how it should process a controversy 
     involving an unfair labor practice issue). Indeed, construing 
     the phrase ``matter'' in section 220(c)(1) to encompass more 
     than just controversies involving unfair labor practice 
     issues would not in any way reduce the redundancy and lack of 
     meaning that the commenter perceives (since, in all events, 
     both section 220(c) (1) and (2) would effectively encompass

[[Page H7455]]

     initial hearing officer consideration of unfair labor 
     practice issues).
       The commenters similarly err in suggesting that the 
     judicial review provisions of section 220(c)(3) demonstrate 
     that the Board must refer more than just unfair labor 
     practice issues to a hearing officer for initial decision 
     under section 405. In making this suggestion, the commenters 
     omit mention of the critical statutory language in section 
     220(c)(3) that only the General Counsel or the respondent to 
     the complaint may seek judicial review of a final Board 
     decision under section 220(c) (1) or (2). This language 
     appears to limit judicial review to cases involving unfair 
     labor practice issues, because it is only in unfair labor 
     practice cases that the parties include either ``the General 
     Counsel or the respondent to the complaint.'' In all events, 
     even if section 220(c)(3) authorized judicial review of more 
     than just unfair labor practice issues, referral of more than 
     controversies involving unfair labor practice issues would 
     not be required: Judicial review does not always require a 
     record created by a formal adversary process, and the Board 
     still has not found a statutory command sufficient to require 
     a formal adversary process where chapter 71 does not do so.
        Finally, there is simply no foundation for the suggestion 
     that the ``real reason'' for the Board's reading of the 
     statute is that referral of representation, arbitrability, or 
     negotiability issues to a hearing officer for initial 
     decision under section 405 would be ``overly cumbersome.'' It 
     is in fact the judgment of the Board, based on its members' 
     many years of practice and experience in this area, that 
     referral of such issues for formal adversary hearings would 
     be overly cumbersome and would undermine considerably the 
     effective implementation of section 220 of the CAA. Indeed, 
     it is difficult for the Board's members to even conceive of 
     how an election could practicably be conducted in the 
     confidential, adversarial processes contemplated by section 
     405. But, while the Board is in fact entitled in its 
     interpretive process to presume that Congress did not intend 
     to be so impracticable, the ``real reason'' for the Board's 
     construction of section 220 is not this significant practical 
     concern. Rather, the ``real reason'' is the one that is 
     stated in the NPR and here--to wit, that neither the 
     statutory language nor the legislative history contain a 
     sufficiently clear command that, in supposedly subjecting 
     itself to the same labor laws as are applicable to the 
     executive branch, Congress intended to make an exception for 
     itself and require formal adversarial proceedings where they 
     are not required under chapter 71. As the Supreme Court has 
     stated: ` ``In a case where the construction of legislative 
     language such as this makes so sweeping and so relatively 
     unorthodox a change as that [suggested] here, [we] think 
     judges as well as detectives may take into consideration the 
     fact that a watch dog did not bark in the night.'' ' Chisom 
     v. Roemer, 501 U.S. 380, 397 (1991), quoting Harrison v. PPG 
     Industries, Inc., 446 U.S. 578, 602 (1980) (Rehnquist, J., 
     dissenting).

                 B. Pre-election investigatory hearings

       In the NPR, the Board proposed to add a new subsection 
     2422.18(d) to provide that the parties have an obligation to 
     produce existing documents and witnesses for pre-election 
     investigatory hearings, in accordance with the instructions 
     of the Board (acting through the person of the Executive 
     Director), and that a willful failure to comply with such 
     instructions could result in an adverse inference being drawn 
     on the issue for which the evidence is sought. The Board 
     noted that section 7132 of chapter 71, which authorizes the 
     issuance of subpoenas by various FLRA officials, was not made 
     applicable by the CAA and that, as pre-election investigatory 
     hearings are not conducted under section 405 of the CAA, 
     subpoenas for documents or witnesses in such pre-election 
     proceedings are not available under the CAA, as they are 
     under chapter 71. The Board thus concluded that there is good 
     cause to modify section 2422.18 of the FLRA's regulations to 
     include subsection (d) because, in order to properly decide 
     disputed representation issues and effectively implement 
     section 220 of the CAA, a complete investigatory record 
     comparable to that developed under chapter 71 is necessary.
       One commenter asserted, consistent with that commenter's 
     view that pre-election investigatory hearings must be 
     conducted under section 405 of the CAA, that the addition of 
     subsection 2422.18(d) is not necessary. Based upon the same 
     rationale, another commenter suggested (1) that section 
     2422.18(b) be modified to provide that the Federal rules of 
     evidence shall apply in pre-election investigatory hearings, 
     and (2) that the Board ``should make the proposed regulations 
     governing service of subpoenas consistent with its own 
     procedural regulations.'' This same commenter also suggested 
     that the Board specifically not adopt that portion of section 
     2422.18(b) which provides that pre-election investigatory 
     hearings are open to the public, because this provision 
     allegedly ``appears to be included to comply with the 
     Sunshine Act'' which ``does not apply to Congress.''
       As noted above, the Board continues to be of the view that 
     pre-election investigatory hearings need not and should not 
     be conducted under section 405 of the CAA. Accordingly, since 
     the commenters criticisms of this proposed regulation are 
     based upon a contrary false premise, the Board adheres to its 
     original conclusion that there is good cause to modify 
     section 2422.18 of the FLRA's regulations by including 
     section 2422.18(d). Further, because pre-election 
     investigatory hearings should not be conducted under section 
     405 of the CAA, there is no good cause to modify section 
     2422.18 to require the application of the Federal rules of 
     evidence or to provide for the issuance or service of 
     subpoenas in connection with such investigatory hearings. 
     Finally, contrary to the assertion of one commenter, there is 
     no indication that the ``Sunshine Act'' (Pub. L. 94-409) 
     formed the basis for the section 2422.18(b) requirement that 
     pre-election hearings be open to the public, and there is no 
     basis for not adopting that subsection, as suggested by the 
     commenter.

      C. Selection of the unfair labor practice procedure or the 
                        negotiability procedure

       In the NPR, the Board determined that there is good cause 
     to delete the concluding sentences of sections 2423.5 and 
     2424.4 of the FLRA's regulations. Specifically, the Board 
     proposed to omit the requirement that a labor organization 
     file a petition for review of a negotiability issue, rather 
     than 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. The Board 
     reasoned that, by eliminating that restriction, a labor 
     organization could choose to seek a Board determination on 
     the issue, as it can with respect to other assertions by 
     employing offices that there is no duty to bargain, through 
     an unfair labor practice proceeding and, if the determination 
     is unfavorable, the labor organization could possibly obtain 
     judicial review by persuading the General Counsel to file a 
     petition for review of the unfavorable Board decision under 
     section 220(c)(3) of the Act. In this regard, the Board 
     stated its view that, unlike chapter 71, the CAA does not 
     provide for direct judicial review of Board decisions and 
     orders on petitions for review of negotiability issues.
        One commenter expressly and specifically agreed that there 
     is good cause for this proposed modification of the FLRA's 
     regulations. The two other commenters asserted that there is 
     not good cause to delete the pertinent sentences from the 
     FLRA's regulations because of their view that, under section 
     220(c)(3), direct judicial review of Board decisions on 
     petitions for review of negotiability issues is available.
        The Board has further considered this issue and has 
     concluded, for reasons different than those urged by the 
     commenters, that it should not delete the concluding 
     sentences of the referenced sections of the FLRA's 
     regulations. Under section 7117 of chapter 71, which is 
     incorporated into the CAA, a labor organization is the only 
     party that may file a petition for Board review of a 
     negotiability issue; the labor organization is always the 
     petitioner and never a respondent, and the General Counsel is 
     never a party. Moreover, section 220(c)(3) provides that only 
     ``the General Counsel or the respondent to the complaint, if 
     aggrieved by a final decision of the Board'' may file a 
     petition for judicial review of a Board decision. 
     Accordingly, it is clear that, under the CAA, it was 
     Congress' intent not to accord labor organizations the right 
     to seek direct judicial review of unfavorable decisions on 
     negotiability issues. Further, in the Board's judgment, 
     questions involving the duty to bargain, where there are no 
     actual or contemplated changes in conditions of employment, 
     are best resolved through a negotiability determination; 
     procedures for the consideration of petitions for review of 
     negotiability issues are more expeditious and less 
     adversarial than unfair labor practice proceedings, and thus 
     the requirement that labor organizations utilize the 
     negotiability procedures is more effective for the 
     implementation of section 220. Accordingly, the concluding 
     sentences of section 2423.5 and 2424.5 of the FLRA's 
     regulations will be included in the Board's final 
     regulations.

 D. Exclusion of certain employing offices from coverage under section 
                                  220

        One commenter urged the Board to exclude certain specific 
     employing offices from coverage under section 220 of the CAA. 
     The commenter reasoned that, since section 7103(a)(3) of 
     chapter 71 specifically defines ``agency'' not to include 
     certain named executive branch agencies, the Board should 
     exempt ``parallel'' employing offices in the House of 
     Representatives from the definition of ``employing office'' 
     in the Board's regulations.
        The Board declines this suggestion. Just as Congress 
     defined the term ``agency'' under chapter 71, Congress has 
     defined ``employing office'' in the CAA. The Board cannot, as 
     the commentor has requested, redefine ``employing office'' by 
     regulation to exclude employing offices that are encompassed 
     by statutory definition.

 E. Exercise of the Board's authority under section 7103(b) of chapter 
                       71, as applied by the CAA

        Under section 220(c)(1) of the CAA, the Board has been 
     granted the authority that the President has under section 
     7103(b) of chapter 71 to ``issue an order excluding any 
     [employing office] or subdivision from coverage under this 
     chapter if the [Board] determines that--
       (a) the [employing office] or subdivision has as a primary 
     function intelligence, counterintelligence, investigative, or 
     national security work, and
       (b) the provisions of this chapter cannot be applied to 
     that [employing office] or subdivision in a manner consistent 
     with national security requirements and considerations.''

[[Page H7456]]

       Two commenters requested that the Board issue regulations 
     under this authority. In doing so, one commenter named five 
     employing offices that it simply asserted should be excluded 
     because their ``primary function . . . is intelligence 
     investigative or national security work''; the other 
     commenter made no specific suggestions as to appropriate 
     exclusions.
       While the Board is willing to exercise its authority 
     derived from section 7103(b) of chapter 71 (when and if it 
     receives information that would allow it to do so), the 
     authority that the Board possesses is to exclude employing 
     offices from coverage under section 220 by ``order,'' not by 
     regulation. Congress wisely recognized that sensitive 
     security issues of this type are not properly addressed in a 
     public rulemaking procedure, but rather are better addressed 
     by executive or administrative order.

                  F. Definition of labor organization

       One commenter correctly pointed out that the words 
     ``bylaws, tacit agreement among its members,'' were omitted 
     from the definition of ``labor organization'' in section 
     2421.3(d). The final regulation has been modified to correct 
     this inadvertent omission.

     G. Substitution of the term ``disability'' for ``handicapping 
                              condition''

       The proposed regulations, in sections 2421.3(d)(1) and 
     2421.4(d)(2)(iv), make reference to the term ``handicapping 
     condition''. That term appears in the FLRA regulations and is 
     derived from the Rehabilitation Act of 1973. In section 
     201(a)(3) of the CAA, the Congress used the term 
     ``disability,'' rather than the term ``handicap'' or 
     ``handicapping condition''. Accordingly, as urged by one 
     commenter, the Board finds good cause to substitute the term 
     ``disability'' for the term ``handicapping condition'' 
     wherever it appears in the regulations.

                      H. Conditions of employment

       One commenter suggested that the Board should modify the 
     definition of the term ``conditions of employment'' in 
     section 2421.3(m)(3) of the proposed regulations to provide 
     that, in addition to ``matters specifically provided for by 
     Federal statute,'' matters specifically provided for by 
     ``resolutions, rules, regulations and other pronouncements of 
     the House of Representatives and/or the Senate having the 
     force and effect of law'' are among the matters excluded from 
     that term. But the definition of ``conditions of employment'' 
     in section 2421.3(m) of the proposed regulations is identical 
     to the statutory definition incorporated by reference into 
     the FLRA's regulations. Moreover, to the extent that 
     resolutions, rules, regulations and pronouncements of the 
     House or Senate have the force and effect of Federal 
     statutes, matters specifically provided for therein are 
     already excluded from ``conditions of employment'' under 
     section 220. The Board thus does not find good cause to 
     change the FLRA's regulation.

                   I. Applicability of certain terms

       1. Government-wide rule or regulation.--The term 
     ``Government-wide rule or regulation'' is found in various 
     contexts in the incorporated provisions of chapter 71 and 
     applicable regulations of the FLRA. One commenter asked that 
     the Board clarify that the term includes ``rules or 
     regulations issued by the House or Senate, as appropriate.'' 
     The commenter cited no authority for the requested change.
       The Board has carefully considered the matter. Its own 
     research reveals that the FLRA has interpreted this term to 
     include only rules or regulations that are generally 
     applicable to the Federal civilian workforce within the 
     executive branch. The Board thus does not find good cause to 
     revise the term to apply to rules or regulations that are not 
     generally applicable to covered employees throughout the 
     entire legislative branch.
       2. Activity; primary national subdivision.--One commenter 
     asserted that the terms ``activity'' and ``primary national 
     subdivision'' have no applicability in the legislative branch 
     and should be omitted from the regulations. However, there 
     was not sufficient information in the comment to allow the 
     Board to make an informed judgment about the validity of the 
     assertion. The Board therefore does not have good cause to 
     modify the FLRA's regulations by deleting these terms; 
     indeed, if the terms are inapplicable, their inclusion in the 
     regulations will have no substantial consequence.

                         J. Consultation rights

        1. National.--Under section 2426.1(a) of the proposed 
     rules, an employing office shall accord national consultation 
     rights to a labor organization that holds exclusive 
     recognition for 10% or more of the total number of personnel 
     employed by the employing office. In this regard, the Board 
     noted that the FLRA has 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. The Board determined that there 
     is no apparent reason why there should be a different 
     threshold requirement for small legislative branch employing 
     offices from that applicable to small executive branch 
     agencies.
       One commenter urged that the Board reconsider its 
     determination. The commenter argued that the threshold should 
     be raised, because in a small employing office of 10 
     employees ``a union could gain consultation rights on the 
     basis of the interest of one employee.''
       The commenter's concern that one employee's ``interest'' in 
     a 10-employee office could require consultations is 
     unfounded. In order to obtain national consultation rights, a 
     labor organization must hold ``exclusive recognition'' for 
     10% of the employees. Section 2421.4(c) of the Board's 
     proposed rules defines the term ``exclusive recognition'' to 
     mean 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 
     ballots in an election.'' The mere ``interest'' of employees 
     does not constitute ``exclusive recognition.'' Further, 
     exclusive recognition cannot, under applicable precedent, be 
     granted for a single employee, because a one-employee unit is 
     not appropriate for exclusive recognition. The Board thus has 
     decided to adhere to its conclusion that there is not good 
     cause to change the 10% threshold.
       2. Government-wide rules or regulations.--In the NPR, the 
     Board concluded that it had good cause to modify the 
     threshold requirement contained in the FLRA's regulations 
     that provide for an agency, in appropriate circumstances, to 
     accord consultation rights on Government-wide rules or 
     regulations to a labor organization that holds exclusive 
     recognition for 3,500 or more employees. The Board reasoned 
     that, because of the size of employing offices covered by the 
     CAA, the 3,500 employee threshold could never be met and 
     needed to be revised. Accordingly, by analogy to the 
     eligibility requirement for national consultation rights, the 
     Board adopted a threshold requirement of 10% of employees.
       One commenter asserted that the Board improperly replaced 
     the 3,500 employee threshold requirement with the 10% 
     requirement, arguing that the intent of the 3,500 employee 
     threshold was to permit consultation only in large agencies. 
     The commenter stated that, because no covered employing 
     office has 3,500 employees, ``consultation on government-wide 
     rules or regulations should not be a requirement under the 
     CAA.''
       The Board has carefully considered the comment and has now 
     concluded that the substitution of a 10% threshold for the 
     3,500 employee requirement would not result in the 
     appropriate standard for the grant of consultation rights on 
     Government-wide rules or regulations. However, contrary to 
     the commenter's assertion, such consultation rights should 
     be, and indeed are, accorded under the CAA.
       Section 7117(d) of chapter 71, which is incorporated into 
     the CAA, provides that a labor organization that is the 
     exclusive representative of a substantial number of 
     employees, as determined in accordance with criteria 
     prescribed by the FLRA, shall be granted consultation rights 
     by any agency with respect to any Government-wide rule or 
     regulation issued by the agency that effects any substantive 
     change in any condition of employment. For example, under the 
     FLRA's regulations, in appropriate circumstances, the Office 
     of Personnel Management (OPM) would be required to accord 
     consultation rights on an OPM-issued government-wide 
     regulation to labor organizations that are the exclusive 
     representatives of at least 3,500 executive branch employees, 
     even if those employees are not employees of OPM. Section 
     7117(d) of chapter 71 was incorporated into the CAA. Thus, in 
     the legislative branch, consultation rights on legislative 
     branch-wide rules or regulations issued by an employing 
     office that effect any substantive change in any condition of 
     employment must be granted to the exclusive representative(s) 
     of a substantial number of covered legislative branch 
     employees.
       The FLRA determined in its regulations that 3,500 employees 
     is a ``substantial'' number of employees in the executive 
     branch. The most recent statistics compiled by OPM's Office 
     of Workforce Information reveal that there are approximately 
     1,958,200 civilian, non-postal, Federal employees. In 
     contrast, the Congressional Research Service reports that 
     there are only approximately 20,100 legislative branch 
     employees currently covered by the CAA. As the covered 
     workforce in the legislative branch is approximately one-
     tenth the size of the analogous executive branch employee 
     complement, the Board concludes that the appropriate 
     threshold requirement for the grant of consultation rights in 
     the legislative branch is 350 employees, or one-tenth the 
     requirement in the executive branch. Accordingly, the Board 
     finds that there is good cause to modify section 2426.11(a) 
     of the FLRA's rules to provide that requests for consultation 
     rights on Government-wide rules or regulations (e.g. rules or 
     regulations that are generally applicable to the legislative 
     branch) will be granted by an employing office, as 
     appropriate, to a labor organization that holds exclusive 
     recognition for 350 or more covered employees in the 
     legislative branch.

             K. Posting of notices in representation cases

       One commenter asserted that sections 2422.7 and 2422.23, 
     which provide for the posting or distribution of certain 
     notices by employing offices, should be modified. In this 
     regard, the commenter argued that these sections of the 
     proposed rules ``give the Executive Director the authority to 
     determine the placement'' of the notice posting and that such 
     determination should be left to the discretion of the 
     employing office. Contrary to the commenter's assertions, 
     however, nothing in the aforementioned regulations deprives 
     an employing office of the desired discretion so long as the 
     notices are posted ``in places where notices to employees are

[[Page H7457]]

     customarily posted and/or distributed in a manner by which 
     notices are normally distributed.'' Accordingly, there is no 
     reason to modify the regulations, as requested by the 
     commenter.

    L. Enforcement of decisions of the Assistant Secretary of Labor

       In the NPR, the Board found good cause to modify section 
     2428.3 of the FLRA's regulations to delete the requirement in 
     section 2428.3(a) that the Board enforce any decision or 
     order of the Assistant Secretary of Labor (Assistant 
     Secretary) unless it is ``arbitrary and capricious or based 
     upon manifest disregard of the law.'' Noting that section 
     225(f)(3) of the CAA specifically states that the CAA does 
     not authorize executive branch enforcement of the Act, the 
     Board concluded that it should not adopt a regulatory 
     provision that would require the Board to defer to decisions 
     of an executive branch agency.
       Two commenters asserted that the Board did not have good 
     cause to modify the FLRA's regulation. Both argued that 
     requiring the Board to enforce a decision and order of the 
     Assistant Secretary is not tantamount to executive branch 
     enforcement of the Act.
       The Board continues to be of the view that, in order to 
     give full effect to section 225(f)(3) of the CAA, it should 
     not defer to decisions of the Assistant Secretary. There is 
     thus good cause to modify section 2428.3 of the FLRA's 
     regulations.

          M. Regulations under section 220(d)(2)(B) of the CAA

       Section 220(d)(2)(B) of the CAA provides that, in issuing 
     regulations to implement section 220, the Board may modify 
     the FLRA's regulations ``as the Board deems necessary to 
     avoid a conflict of interest or appearance of a conflict of 
     interest.'' In the ANPR, the Board requested commenters to 
     identify, where applicable, why a proposed modification of 
     the FLRA's regulations is necessary to avoid a conflict of 
     interest or appearance thereof. In this regard, commenters 
     were advised not only to fully and specifically describe the 
     conflict of interest or appearance thereof that they believed 
     would exist were the pertinent FLRA regulations not modified, 
     but also to explain the necessity for avoiding the asserted 
     conflict or appearance of conflict and how any proposed 
     modification would avoid the identified concerns.
       In response to the ANPR, one commenter argued that the 
     posting requirements of sections 2422.7 and 2422.23 of the 
     FLRA's regulations should be modified. In the NPR, the Board 
     discussed the commenter's suggested modifications and 
     determined that the modifications were not necessary under 
     section 220(d)(2)(B). No other modifications were requested 
     or discussed.
       Another commenter has now urged the Board to ``promulgate a 
     regulation for the exclusion from a bargaining unit of any 
     employee whose membership or participation in the labor 
     organization would present an actual or apparent conflict of 
     interest with the duties of the employee'' in order to 
     ``eliminate by regulation the possibility, or even the 
     appearance of the possibility, that the contents of 
     legislation or legislative policy might be influenced by 
     union membership of Congressional employees.'' This commenter 
     provided no additional explanation for the proposed 
     regulation. Nor did the commenter provide a list of the 
     employees who should be so excluded (or, indeed, any 
     examples).
       The Board has concluded that it is appropriate to adopt a 
     regulation authorizing parties in appropriate circumstances 
     to assert, and the Board to decide where appropriate and 
     relevant, that a conflict of interest (real or apparent) 
     exists that makes it necessary for the Board to modify a 
     requirement that would otherwise be applicable. The 
     regulation is found at section 2420.2.

                        III. Method of Approval

       The Board received no comments on the method of approval 
     for these regulations. Therefore, the Board continues to 
     recommend that (1) the version of the regulations that shall 
     apply to the Senate and employees of the Senate should be 
     approved by the Senate by resolution; (2) the version of the 
     regulations that shall apply to the House of Representatives 
     and employees of the House of Representatives should be 
     approved by the House of Representatives by resolution; and 
     (3) the version of the regulations that apply to other 
     covered employees and employing offices should be approved by 
     concurrent resolution.
       Accordingly, the Board of Directors of the Office of 
     Compliance hereby adopts and submits for approval by the 
     Congress the following regulations.
       Signed at Washington, D.C., on this 9th day of July, 1996.

                                                Glen D. Nager,

                                  Chair of the Board of Directors,
                                             Office of Compliance.

                          ADOPTED REGULATIONS

                              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.
     Sec. 2420.2
       Notwithstanding any other provisions of these regulations, 
     the Board may, in deciding an issue, add to, delete from or 
     modify otherwise applicable requirements as the Board deems 
     necessary to avoid a conflict of interest or the appearance 
     of a conflict of interest.


         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 by the CAA.

[[Page H7458]]

       (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, bylaws, 
     tacit agreement among its members, or otherwise, denies 
     membership because of race, color, creed, national origin, 
     sex, age, preferential or nonpreferential civil service 
     status, political affiliation, marital status, or disability;
       (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
       (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 organization's 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;

[[Page H7459]]

       (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 member's 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 disability;
       (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
       (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.

[[Page H7460]]

     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:
       (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

[[Page H7461]]

     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 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

[[Page H7462]]

     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 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

[[Page H7463]]

       (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.
       (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.

[[Page H7464]]

       (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. 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. Cases which 
     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 which do not involve actual or 
     contemplated changes in conditions of employment may only be 
     filed under part 2424 of this subchapter.
     Sec. 2423.6  Filing and service of copies.
       (a) An original and four (4) copies of the charge together 
     with one copy for each additional charged party named shall 
     be filed with the 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.

[[Page H7465]]

       (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 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:

[[Page H7466]]

       (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.

   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. Cases which 
     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 which do not involve actual or 
     contemplated changes in conditions of employment may only be 
     filed under this part.
     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

[[Page H7467]]

     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. 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.
       (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.
     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;

[[Page H7468]]

       (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, 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 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 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 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.
     Sec. 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

     Sec. 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 350 or more covered 
     employees within the legislative branch.
       (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.
     Sec. 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

[[Page H7469]]

     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 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.
     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

[[Page H7470]]

     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 the Assistant 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.
     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

[[Page H7471]]

     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 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\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. 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,

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     and the action shall be binding on such parties during the 
     term of the agreement, unless they agree otherwise.
     Sec. 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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