[Federal Register Volume 62, Number 100 (Friday, May 23, 1997)]
[Proposed Rules]
[Pages 28378-28389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13661]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 62, No. 100 / Friday, May 23, 1997 / Proposed 
Rules  

[[Page 28378]]


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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2423 and 2429


Unfair Labor Practice Proceedings: Miscellaneous and General 
Requirements

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of proposed rulemaking; notice of meeting.

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SUMMARY: The Federal Labor Relations Authority proposes to revise 
portions of its regulations regarding unfair labor practice (ULP) 
proceedings (Part 2423) and miscellaneous and general requirements 
(Part 2429). The purpose of the proposed revisions is to streamline the 
existing regulations, facilitate dispute resolution, clarify the 
matters to be adjudicated, provide more flexibility to the participants 
in the ULP process, and simplify the filing and service requirements. 
Implementation of the proposed changes will enhance the ULP process, 
raising the level of advocacy and facilitating adjudication of ULP 
claims.

DATES: Comments must be received on or before June 30, 1997. Meetings 
will be held at 10:00 a.m. on June 12, 1997, in Chicago, Illinois, and 
at 10:00 a.m. on June 18, 1997, in Washington, D.C.

ADDRESSES: Mail or deliver written comments to the Office of Case 
Control, Federal Labor Relations Authority, 607 14th Street, NW., 
Washington, DC 20424-0001. The June 12, 1997 meeting will be held at 
the Xerox Centre, 55 West Monroe Street, Room 1610, Chicago, Illinois 
60603. The June 18, 1997 meeting will be held at the Federal Labor 
Relations Authority's Headquarters, 607 14th St. NW., Washington, DC 
20424, 2nd Floor Agenda Room.

FOR FURTHER INFORMATION CONTACT: Regulatory information or registration 
for the Washington meeting: Edward Bachman, Office of Case Control, at 
the address listed above or by telephone # (202) 482-6540. Registration 
for the Chicago meeting: Peter Sutton, Chicago Regional Office, Federal 
Labor Relations Authority, 55 West Monroe Street, Suite 1150, Chicago, 
Illinois 60603, telephone # (312) 886-3465 ext. 22.

SUPPLEMENTARY INFORMATION: The Federal Labor Relations Authority 
established a Task Force to study and evaluate the policies and 
procedures in effect concerning the processing of a ULP complaint from 
the issuance of the complaint through the transfer of the case to the 
Authority after the issuance of a decision and recommended order of an 
Administrative Law Judge-- Secs. 2423.12-2423.31 of the current 
regulations. To this end, the Task Force published a Federal Register 
notice (60 FR 11057) (Mar. 1, 1995) inviting parties to submit written 
recommendations on ways to improve the post complaint ULP process. In 
addition, the Task Force convened focus groups in order to solicit and 
consider customers' views prior to proposing these revisions. The Task 
Force's review of the ULP process also included review of certain of 
the miscellaneous and general requirements of Part 2429.
    The proposed revisions, driven for the most part by the 
recommendations of the Task Force and focus group participants, 
represent the Federal Labor Relations Authority's intent to simplify, 
clarify, and improve the ULP regulations as well as related 
miscellaneous and general regulations in Part 2429. The proposed 
revisions attempt to eliminate perceptions of unfairness and potential 
conflict of interest problems, noted by the Task Force, by moving 
certain post-complaint, administrative responsibilities from the 
Regional Director to the Office of Administrative Law Judges. Another 
major aspect of this revision is the division of Part 2423 into four 
sequential subparts: Subpart A--Filing, Investigating, Resolving and 
Acting on Charges-- Secs. 2423.2-2423.19; Subpart B--Post Complaint, 
Prehearing Procedures--Secs. 2423.20-2423.29; Subpart C--Hearing 
Procedures--Secs. 2423.30-2423.39; and Subpart D--Post-transmission and 
Exceptions to Authority Procedures--Secs. 2423.40-2423.49. Other than 
the minor revisions to Secs. 2423.9 and 2423.11 included in these 
proposed revisions, Subpart A, which sets forth the precomplaint 
procedures, will be revised at a later date. With regard to Subpart A, 
the Office of the General Counsel of the Federal Labor Relations 
Authority has already established internal policies to improve the 
precomplaint process. Recent examples include the Office of the General 
Counsel's policies concerning Settlement, Prosecutorial Discretion, 
Scope of Investigation, Intervention, and Quality in ULP 
Investigations. Proposed revisions to Subpart A are anticipated for 
1998.
    In connection with the proposed revisions to Parts 2423 and 2429, 
two focus group meetings will be conducted. The first focus group 
meeting will be held on June 12, 1997, at the Xerox Centre, 55 West 
Monroe Street, Room 1610, Chicago, Illinois 60603, at 10:00 a.m. 
Persons interested in attending this first meeting on this proposed 
rulemaking should write or call Peter Sutton, Chicago Regional Office, 
Federal Labor Relations Authority, 55 West Monroe Street, Suite 1150, 
Chicago, Illinois 60603, telephone # (312) 886-3465 ext. 22, to confirm 
attendance. The second focus group meeting will be held on June 18, 
1997, at the Federal Labor Relations Authority's Headquarters, 607 14th 
St. N.W., Washington, D.C. 20424, 2nd Floor Agenda Room, at 10:00 a.m. 
Persons interested in attending this second meeting on this proposed 
rulemaking should write or call Edward Bachman, Office of Case Control, 
at the address and phone number listed in the preceding section to 
confirm attendance.
    Copies of all written comments will be available for inspection and 
photocopying between 8 a.m. and 5 p.m., Monday through Friday, in Suite 
415 at the Office of Case Control.
    Sectional analyses of the proposed amendments and revisions to Part 
2423-- Unfair Labor Practice Proceedings and Part 2429--Miscellaneous 
and General Requirements are as follows:

Part 2423--Unfair Labor Practice Proceedings

Section 2423.1

    No change is made to the text; however, the section is separated 
from all subparts to reflect its applicability to the entire part.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges

Sections 2423.2-2423.8, 2423.10

    No changes are made at this time.

[[Page 28379]]

Section 2423.9

    Subsection (a)(3) is amended to incorporate changes to the 
settlement regulations. Subsection (a)(5) of the current regulations, 
which permits the Regional Director to transfer stipulations of fact to 
the Authority pursuant to Sec. 2429.1, is omitted to reflect the 
proposed deletion and reservation of Sec. 2429.1 from the revised 
regulations. Subsection (a)(6) is redesignated as subsection (a)(5).

Section 2423.11

    This section is revised in accord with the new sequential 
arrangement of the ULP regulations. The general settlement policy in 
current subsection (a) is deleted. Revised Sec. 2423.11 consists of the 
precomplaint informal settlement language contained in current 
subsections (b) (1) and (2). Post complaint, prehearing settlement 
provisions, currently in subsections (c)-(d), are revised and removed 
to Subpart B, at proposed Sec. 2423.25. Similarly, the provisions 
currently contained in subsection (e), regarding settlements after the 
opening of the hearing, are revised and moved to Subpart C, proposed 
Sec. 2423.31.

Sections 2423.12-2423.19

    These sections are reserved.

Subpart B--Post Complaint, Prehearing Procedures

Section 2423.20

    Matters related to the complaint and answer, which appear in 
Secs. 2423.12 and 2423.13 of the current regulations, are consolidated 
here. A new provision in subsection (a)(5), requiring that the 
complaint set out the relief sought, is intended to clarify both the 
purpose of the complaint and the remedy to be obtained. Subsection 
(a)(6) regarding scheduling the date, time, and place of the hearing 
reflects the current practice, wherein the Regional Director sets forth 
in the complaint the date, time, and place of the hearing established 
by the Administrative Law Judge. Subsection (b) retains the 20-day 
answer period established in Sec. 2423.13 of the current regulations. 
Subsections (c) and (d) transfer to the Administrative Law Judge 
certain adjudicatory responsibilities related to the complaint and 
answer--including receiving the pleadings, ruling on motions and 
amendments, and scheduling conference and hearing dates. Under the 
current regulations, many of these items are the responsibility of the 
Regional Director. Subsection (d) clarifies the authority of the Chief 
Administrative Law Judge to designate judges in an efficient and 
expeditious manner.

Section 2423.21

    This section incorporates and amends the current motions procedure, 
set out in Sec. 2423.22 of the current regulations. Specifically, 
subsection (a) sets forth the general requirements of motions 
procedure. Subsection (b) shifts the responsibility for ruling on 
prehearing motions from the Regional Director to the Administrative Law 
Judge. This accords with the changes in responsibility made in the 
previous section. In addition, the time deadline for filing prehearing 
motions is changed from 10 days to 15 days before the hearing. This is 
intended to sharpen the factual and legal issues earlier in the 
proceedings and, as a result, clarify the matters being adjudicated. 
Requiring earlier party involvement also is expected to facilitate the 
resolution of disputes. Subsections (c) and (d) explain the filing 
process for post-transmission and interlocutory motions.

Section 2423.22

    This section amends the current Sec. 2423.15 by establishing a 
standard of review for motions to intervene and clarifying the extent 
to which intervenors may participate in the proceedings. These changes 
are expected to improve the Administrative Law Judge's decision-making 
regarding intervention, improve the Authority's ability to review 
rulings on intervention, and, in time, establish a uniform body of law 
in this area. The changes generally accord with Merit Systems 
Protection Board practice (5 CFR 1201.34).

Section 2423.23

    This new section is intended to facilitate the trial process by 
both broadening prehearing disclosure obligations and causing this 
exchange of information to occur at least 21 days in advance of the 
hearing. The 21-day period is necessary in order to permit the parties 
time to properly evaluate and meet deadlines involving other pre-
hearing matters, such as motions, subpoenas, and the pre-hearing 
conference. For example, the exchange of witness lists and theories of 
the case 21 days prior to the hearing will assist parties in making 
informed determinations concerning subpoena requests, which requests 
must be made 15 days prior to the hearing, pursuant to Sec. 2429.7. By 
contrast, under the current regulations (Sec. 2423.14(a)), witness 
lists and documents are exchanged immediately before or at the start of 
the hearing, and case theories are often not revealed until the hearing 
begins. Involving the parties in the disclosure process well in advance 
of the hearing should clarify the issues to be litigated and enable 
knowledgeable settlement discussions.

Section 2423.24

    This new section sets forth an expanded role for the Administrative 
Law Judge in the prehearing process, specifically providing for the 
Judge's regulation of the course and scheduling of prehearing matters. 
Under subsection (c), the Administrative Law Judge has the discretion 
to issue a prehearing order. Subsection (d) renders mandatory a 
prehearing conference to be scheduled by the Administrative Law Judge, 
unless the Administrative Law Judge determines that the conference is 
not necessary and no party has moved for a prehearing conference. At 
such conferences, which may occur telephonically or in person, the 
parties must be prepared to discuss, narrow, and resolve the issues set 
forth in the complaint and answer. The matters that may be discussed at 
the prehearing conference are specifically set forth in the regulation. 
As with Sec. 2423.23, this subsection emphasizes the discussion and 
resolution of issues at an earlier stage in the proceedings. Subsection 
(e), which grants the Administrative Law Judge authority to impose 
sanctions as appropriate, such as the exclusion of evidence or 
submissions regarding sanctions, represents a substantial change from 
the current regulations. Such authority accords with the regulations of 
both the Merit Systems Protection Board (MSPB) (5 CFR 1201.43) and 
Equal Employment Opportunity Commission (EEOC) (29 CFR 1614.109(c)) as 
well as other administrative agencies. In addition to the new 
provisions set forth above, this section also incorporates the current 
Sec. 2423.12(c), which addresses changing the date, time, or place of 
hearing, as well as some of the powers of the Administrative Law Judge 
set forth in the current Sec. 2423.19.

Section 2423.25

    The provisions regarding post complaint, prehearing settlements of 
an informal or formal nature, that appear in the current Sec. 2423.11, 
are moved to this section and appear in subsections (a), (b), and (c). 
A significant change to the overall settlement process is the provision 
for the settlement judge program in subsection (d). This program 
provides the parties with an Administrative Law Judge or other 
appropriate official to conduct negotiations for informal settlements.

[[Page 28380]]

The settlement official shall not be the hearing judge unless otherwise 
agreed to by the parties. Further, all settlement proceedings under 
this program are confidential. This revision implements a successful 
trial program that has been tested by the Authority for the past two 
years and closely parallels the National Labor Relations Board's 
settlement judge program regulations (29 CFR 102.35).

Section 2423.26

    This is a new section that supersedes the current stipulation 
provision in Sec. 2429.1. As under current stipulation practice, the 
parties must agree that no material issue of fact exists. Subsection 
(a) of the revised regulation provides that the parties may jointly 
move to have a case considered on stipulation. Subsection (b) of the 
revised regulation clarifies that stipulations of fact may be submitted 
to the Administrative Law Judge rather than to the Authority. If the 
stipulation is deemed adequate, the Judge may adjudicate the case on 
the basis of the stipulation. This was not expressly authorized in the 
current regulations. Subsection (c) alters the current procedure, by 
providing that the Authority has discretion to grant such motions when 
the Authority concludes that a decision by the Administrative Law Judge 
would not assist in resolution of the case.

Section 2423.27

    This section creates a specific regulation for the filing of a 
motion for summary judgment. The current regulations do not provide for 
the filing of such motions, although the Authority has held that 
motions for summary judgment

serve the same purpose and have the same requirements as motions for 
summary judgment filed with United States District Courts pursuant 
to Rule 56 of the Federal Rules of Civil Procedure.

U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 252-53 
(1995) (citing Department of the Navy, U.S. Naval Ordnance Station, 
Louisville, Kentucky, 33 FLRA 3, 4 (1988)), rev'd on other grounds, No. 
88-1861 (D.C. Cir. Aug. 9, 1990) (unpublished). The requirements in 
this section are comparable to Rule 56 of the Federal Rules of Civil 
Procedure, as well as summary judgment procedures of other federal 
agencies. Time limits are established to prevent the filing of summary 
judgment motions from interfering with the overall post complaint 
process. Also, the requirement that the motion be filed 15 days prior 
to the hearing is consistent with the regulations of the EEOC (29 CFR 
1614.109(e)).

Sections 2423.28-2423.29

    These sections are reserved.

Subpart C--Hearing Procedures

Section 2423.30

    This section regarding the general requirements for conduct of the 
hearing consolidates and condenses various provisions of current 
Secs. 2423.14, 2423.16, 2423.21, 2423.23, and 2423.24. Unnecessary 
language is eliminated, particularly with regard to the relevant 
procedures established in the Administrative Procedure Act (APA), 5 
U.S.C. 554-557. Subsections (a) and (b) incorporate provisions of the 
current regulations regarding an open hearing and conduct of the 
hearing in accordance with the APA. Subsection (d) restates the current 
objection regulation and eliminates antiquated and unclear language in 
the current Sec. 2423.21(b), that

[a]utomatic exceptions will be allowed to all adverse rulings.

Under subsection (d), as under the current regulations (Sec. 2423.23) 
objections not made before an Administrative Law Judge shall be deemed 
waived. Subsections (c), (e), and (f) make no substantive changes from 
the current regulations.

Section 2423.31

    The current Secs. 2423.17 and 2423.19 are consolidated here. As 
with Sec. 2423.30, this section eliminates superfluous language from 
the current regulations without substantively changing the powers and 
duties of the Administrative Law Judge at hearing. Rather than 
delineating specific powers and duties, the revised regulation provides 
general guidance regarding the Administrative Law Judge's authority at 
the hearing. As in Sec. 2423.30, the powers of the Administrative Law 
Judge set forth in the APA at 5 U.S.C. 556, 557, are controlling. 
Subsection (c) is a new provision specifying that the Administrative 
Law Judge may, under certain circumstances, issue bench decisions. 
Settlement procedures to be utilized after the start of the hearing, 
currently found in Sec. 2423.11, are set forth in subsection (d). This 
settlement subsection retains the current practice with minor editorial 
changes.

Section 2423.32

    This section retains the requirement regarding the General 
Counsel's burden of proof obligation, currently set forth in 
Sec. 2423.18. A new provision specifies that the Respondent has the 
burden of establishing any specific defenses to charges in the 
complaint. This is in accord with established Authority precedent. See, 
e.g., Internal Revenue Service (IRS), Washington, D.C. and IRS, Kansas 
City Service Center, Kansas City, Missouri, 50 FLRA 661, 670 (1995) 
(Respondent is required to identify specific anti-disclosure interests 
to support defense that denial of information request is appropriate); 
U.S. Department of Transportation, Federal Aviation Administration, New 
York Tracon, Westbury, New York, 50 FLRA 338, 345 (1995) (Respondent 
has burden of proving elements of Privacy Act defense); Letterkenny 
Army Depot, 35 FLRA 113, 118 (1990) (Respondent has burden of rebutting 
prima facie case of discrimination by a preponderance of the evidence).

Section 2423.33

    This section parallels the current Sec. 2423.25.

Section 2423.34

    This section, which addresses matters related to the Administrative 
Law Judge's decision, incorporates the requirements set out in the 
current Sec. 2423.26.

Sections 2423.35-2423.39

    These sections are reserved.

Subpart D--Post-transmission and Exceptions to Authority Procedures

Section 2423.40

    All matters related to exceptions, cross-exceptions, and 
oppositions, which currently appear in Secs. 2423.26, 2423.27, and 
2423.28, are consolidated here. In addition, this section requires that 
each of these filings include a supporting brief meeting certain format 
requirements. These changes are intended to assist the Authority in 
evaluating arguments, accelerate the issuance of decisions, and improve 
the quality and responsiveness of the Authority's decisions. This 
section also increases the time that respondents have for filing 
oppositions.

Section 2423.41

    Consolidated into one section are matters related to action by the 
Authority and compliance with decisions and orders of the Authority. 
These matters appear in current Secs. 2423.29 and 2423.30. As with the 
reorganizations made elsewhere in the proposed rules, this 
consolidation is intended to facilitate the parties' understanding of 
and compliance with the regulations. This section does not make 
substantive changes to current regulations and practice.

[[Page 28381]]

Section 2423.42

    This section simplifies current Sec. 2423.31, which sets forth the 
procedures to be followed when compliance with a backpay order is at 
issue. Current practice is continued with one exception--backpay 
specifications by the Regional Director are no longer a required part 
of the process. Instead, if the backpay amount is in question, the 
Regional Director may issue a notice of hearing setting forth the 
issues to be resolved without specification. The Respondent is 
responsible for filing an answer to the notice of hearing. Thereafter, 
the ULP hearing procedures are to be followed, with the Administrative 
Law Judge ultimately determining the amount of backpay.

Sections 2423.43-2423.49

    These sections are reserved.

Part 2429--Miscellaneous and General Requirements

Section 2429.1

    This section is removed and reserved. The proposed Sec. 2423.26 
covers this procedure.

Section 2429.7

    The spelling of the term ``subpoena'' is changed throughout this 
section to reflect the more commonly used and dictionary spelling of 
the word. Other than this spelling change, subsections (a) and (b) 
remain the same. Subsection (c) amends the current process wherein 
requests for subpoenas in ULP proceedings are filed with the Regional 
Director and provides instead that such subpoena requests shall be 
filed with the Office of Administrative Law Judges. This revision is in 
keeping with the goal of eliminating any perception of unfairness or 
conflict of interest in ULP proceedings. Subsection (e) provides that 
petitions to revoke a subpoena in the ULP process shall be filed with 
the Administrative Law Judge. A change applying to all proceedings 
before the Authority is that requests for subpoenas shall be granted if 
the issuing authority finds that the testimony or documents are 
material and relevant to the matters under consideration. The intent of 
the regulations is to establish minimal requirements for the obtaining 
of a subpoena. In the ULP process, such subpoenas would be issued, on 
sufficient showing, by the Office of Administrative Law Judges. 
Subsection (d) of the revised regulation also establishes that in all 
proceedings, requests for subpoenas made less than 15 days prior to the 
opening of the hearing shall be granted if sufficient explanation is 
provided as to why the request was not timely filed. Subsection (e) 
clarifies the requirements for revocation of subpoenas and describes 
the presiding official's role in explaining the procedural or other 
ground for the ruling. Subsection (e) also establishes a procedure for 
the revocation of a subpoena if, on further review, the subpoena does 
not appear appropriate. In the ULP process, subpoena revocation 
determinations would be made by an Administrative Law Judge. Subsection 
(f) changes the Federal Labor Relations Authority official responsible 
for court enforcement of subpoenas in all Authority proceedings from 
the General Counsel to the Solicitor of the Authority.

Section 2429.11

    This section retains current language regarding interlocutory 
appeals and also creates a procedure for filing and a standard for 
reviewing interlocutory appeals in the ULP process. This new procedure 
is consistent with both MSPB regulations (5 CFR 1201.91-93) and 
interlocutory appeals procedure under federal practice (28 U.S.C. 
1292(b)).

Section 2429.12

    This section, addressing service on parties by Authority officials 
in all proceedings, simplifies and facilitates service requirements in 
several respects. Corresponding changes are made to other sections 
addressing service by the parties (Secs. 2429.22 and 2429.27) and 
filing with the Authority (Secs. 2429.21 and 2429.24). Subsection (a) 
permits service of process by first-class rather than certified mail, 
although service by certified mail is still permitted. The provision 
permitting service by telegraph is deleted. In another change, service 
by facsimile is permitted for certain procedural and other matters in 
order to facilitate and expedite service where appropriate. However, 
non-procedural determinations, such as recommended decisions of the 
Administrative Law Judge or final decisions of the Authority, which are 
likely to be lengthier and not as time-sensitive, will be served by 
mail. Subsection (c) is revised to address the changes in subsection 
(a); thus, proof of service is now accomplished by certificate of the 
individual serving the papers. Date of service, when service is by 
mail, remains the same. For facsimile service, the date of service is 
the date of facsimile transmission.

Section 2429.13

    This section is amended to eliminate the current provision that 
necessary transportation and per diem expenses for witnesses are paid 
by the employing activity or agency. The revision reflects current 
practice in ULP proceedings.

Section 2429.14

    The substance of subsection (a) is unchanged, although the language 
is simplified and clarified. Subsection (b) is revised in accordance 
with the changes regarding payment of witness fees explained in 
Sec. 2429.13 above. Thus, witness fees, transportation, and per diem 
expenses are paid by the party that calls the witness to testify.

Section 2429.21

    No change is proposed to subsection (a) concerning computation of 
time; however, comments are solicited concerning how it could be 
clarified. Subsection (b) is changed to address the date of filing when 
facsimile transmission is utilized and to clarify that if the filing is 
by commercial delivery, it shall be considered filed on the date it is 
received by the Authority.

Section 2429.22

    This section is revised to permit service by facsimile 
transmission.

Section 2429.24

    Subsection (e) is amended to clarify that documents may be filed by 
commercial delivery. The subsection also permits limited filing by 
facsimile transmission and parallels the change in Sec. 2429.12(a). A 
5-page limitation is placed on such filings to discourage extensive 
filings by facsimile that would potentially overload facsimile 
equipment capabilities and shift voluminous document reproduction 
responsibility from the parties to the Authority office involved.

Section 2429.25

    This section is amended to clarify that where filing by facsimile 
transmission is permitted, one legible copy shall be a sufficient 
submission. The requirement that the parties file an original plus four 
copies of documents not served by facsimile transmission is retained. 
The extra copies facilitate review by the various Authority officials 
with whom the documents are filed.

Section 2429.27

    Subsection (b) is amended to permit service by facsimile. 
Subsection (d) now reflects the date of service when service is 
effected by facsimile.

List of Subjects in 5 CFR Parts 2423 and 2429

    Administrative practice and procedure, Government employees, Labor 
management relations.


[[Page 28382]]


    For the reasons set forth in the preamble, the Federal Labor 
Relations Authority proposes to revise 5 CFR Part 2423 and to amend 5 
CFR Part 2429 as follows:
    1. Part 2423 is revised to read as follows:

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

Sec.
2423.1  Applicability of this part.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges

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 Regional Director.
2423.10  Determination not to issue complaint; review of action by 
the Regional Director.
2423.11  Settlement prior to issuance of a complaint.
2423.12-2423.19  [Reserved]

Subpart B--Post Complaint, Prehearing Procedures

2423.20 Issuance and contents of the complaint; answer to the 
complaint; amendments; role of Office of the Administrative Law 
Judges.
2423.21  Motions procedure.
2423.22  Intervenors.
2423.23  Prehearing disclosure.
2423.24  Powers and duties of the Administrative Law Judge during 
prehearing proceedings.
2423.25  Post Complaint, Prehearing Settlements.
2423.26  Stipulations of fact submissions.
2423.27  Summary judgment motions.
2423.28-2423.29  [Reserved]

Subpart C--Hearing Procedures

2423.30 General rules.
2423.31  Powers and duties of the Administrative Law Judge at the 
hearing.
2423.32  Burden of proof before the Administrative Law Judge.
2423.33  Posthearing briefs.
2423.34  Decision and record.
2423.35-2423.39  [Reserved]
Subpart D--Post-transmission and Exceptions to Authority Procedures
2423.40 Exceptions; oppositions and cross-exceptions; waiver.
2423.41  Action by the Authority; compliance with Authority 
decisions and orders.
2423.42  Backpay proceedings.
2423.43-2423.49  [Reserved]

    Authority: 5 U.S.C. 7134.


Sec. 2423.1  Applicability of this part.

    This part is applicable to any charge of alleged unfair labor 
practices filed with the Authority on or after January 11, 1979.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges


Sec. 2423.2  Informal proceedings.

    (a) The purposes and policies of the Federal Service Labor-
Management Relations Statute 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 Authority 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 with 
the Authority.
    (b) In furtherance of the policy referred to in paragraph (a) of 
this section, and noting the six (6) month period of limitation set 
forth in 5 U.S.C. 7118(a)(4), it shall be the policy of the Authority 
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 issuance of a complaint by the Regional Director.
    (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 Regional 
Director will normally not commence until the parties have been 
afforded a reasonable amount of time, not to exceed 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 activity, agency 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.


Sec. 2423.4  Contents of the charge; supporting evidence and documents.

    (a) A charge alleging a violation of 5 U.S.C. 7116 shall be 
submitted on forms prescribed by the Authority 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 activity, agency, 
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 
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 Federal Service Impasses Panel, the 
Federal Mediation and Conciliation Service, the Equal Employment 
Opportunity Commission, the Merit Systems Protection Board or the 
Special Counsel of the Merit Systems Protection Board for consideration 
or action; or
    (iii) Involves a negotiability issue raised by the charging party 
in a petition pending before the Authority 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 
Regional Director 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 Authority 
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 Authority, 
the appropriate Regional Director and all parties to both the unfair 
labor practice case and the negotiability case. Cases which solely 
involve an agency'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

[[Page 28383]]

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 
Regional Director for the region in which the alleged unfair labor 
practice has occurred or is occurring. A charge alleging that an unfair 
labor practice has occurred or is occurring in two or more regions may 
be filed with the Regional Director for any such region.
    (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 Regional Director. The Regional Director 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 
appropriate Regional Director in accordance with the requirements in 
paragraph (a) of this section.


Sec. 2423.7  Investigation of charges.

    (a) The Regional Director, on behalf of the General Counsel, shall 
conduct such investigation of the charge as the Regional Director 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 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 
Regional Director.
    (c) In connection with the investigation of charges, all persons 
are expected to cooperate fully with the Regional Director.
    (d) The purposes and policies of the Federal Service Labor-
Management Relations Statute 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 
Authority 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 Authority'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 Regional Director.

    (a) The Regional Director shall take action which may consist of 
the following, as appropriate:
    (1) Approve a request to withdraw a charge;
    (2) Refuse to issue a complaint;
    (3) Approve a written settlement agreement in accordance with the 
provisions of Part 2423;
    (4) Issue a complaint; or
    (5) Withdraw a complaint.
    (b) Parties may request the General Counsel to seek appropriate 
temporary relief (including a restraining order) under 5 U.S.C. 
7123(d). The General Counsel will initiate and prosecute injunctive 
proceedings under 5 U.S.C. 7123(d) only upon approval of the Authority. 
A determination by the General Counsel not to seek approval of the 
Authority for such temporary relief is final and may not be appealed to 
the Authority.
    (c) Upon a determination to issue a complaint, whenever it is 
deemed advisable by the Authority to seek appropriate temporary relief 
(including a restraining order) under 5 U.S.C. 7123(d), the Regional 
Attorney or other designated agent of the Authority to whom the matter 
has been referred will make application for appropriate temporary 
relief (including a restraining order) in the district court of the 
United States within which the unfair labor practice is alleged to have 
occurred or in which the party sought to be enjoined resides or 
transacts business. Such temporary relief will not be sought unless the 
record establishes probable cause that an unfair labor practice is 
being committed, or if such temporary relief will interfere with the 
ability of the agency to carry out its essential functions.
    (d) Whenever temporary relief has been obtained pursuant to 5 
U.S.C. 7123(d) and thereafter the Administrative Law Judge hearing the 
complaint, upon which the determination to seek such temporary relief 
was predicated, recommends dismissal of such complaint, in whole or in 
part, the Regional Attorney or other designated agent of the Authority 
handling the case for the Authority shall inform the district court 
which granted the temporary relief of the possible change in 
circumstances arising out of the decision of the Administrative Law 
Judge.


Sec. 2423.10  Determination not to issue complaint; review of action by 
the Regional Director.

    (a) If the Regional Director 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 Regional Director may 
request the charging party to withdraw the charge, and in the absence 
of such withdrawal within a reasonable time, decline to issue a 
complaint.
    (b) If the Regional Director determines not to issue a complaint on 
a charge which is not withdrawn, the Regional Director shall provide 
the parties with a written statement of the reasons for not issuing a 
complaint.
    (c) The charging party may obtain a review of the Regional 
Director's decision not to issue a complaint by filing an appeal with 
the General Counsel within 25 days after service of the Regional 
Director's decision. The appeal shall contain a complete statement 
setting forth the facts and reasons upon which it is based. A copy of 
the appeal shall also be filed with the Regional Director. In addition, 
the charging party should notify all other parties of the fact that an 
appeal has been taken, but any failure to give such notice shall not 
affect the validity of the appeal.
    (d) A request for extension of time to file an appeal shall be in 
writing and received by the General Counsel not later than 5 days 
before the date the appeal is due. The charging party should notify the 
Regional Director and all other parties that it has requested an 
extension of time in which to file an appeal, but any failure to give 
such notice shall not affect the validity of its request for an 
extension of time to file an appeal.
    (e) The General Counsel may sustain the Regional Director's refusal 
to issue or re-issue a complaint, stating the grounds of affirmance, or 
may direct the Regional Director to take further action. The General 
Counsel's decision shall be served on all the parties. The decision of 
the General Counsel shall be final.


Sec. 2423.11  Settlement prior to issuance of a complaint.

    (a) Prior to the issuance of any complaint or the taking of other 
formal action, the Regional Director will afford the Charging Party and 
the Respondent

[[Page 28384]]

a reasonable period of time in which to enter into an informal 
settlement agreement to be approved by the Regional Director. Upon 
approval by the Regional Director and compliance with the terms of the 
informal settlement agreement, no further action shall be taken in the 
case. If the Respondent fails to perform its obligations under the 
informal settlement agreement, the Regional Director may determine to 
institute further proceedings.
    (b) In the event that the Charging Party fails or refuses to become 
a party to an informal settlement agreement offered by the Respondent, 
if the Regional Director concludes that the offered settlement will 
effectuate the policies of the Federal Service Labor-Management 
Relations Statute, the Regional Director shall enter into the agreement 
with the Respondent and shall decline to issue a complaint. The 
Charging Party may obtain a review of the Regional Director's action by 
filing an appeal with the General Counsel in accordance with 
Sec. 2423.10(c). The General Counsel shall take action on such appeal 
as set forth in Sec. 2423.10(e).


Secs. 2423.12-2423.19  [Reserved]

Subpart B--Post Complaint, Prehearing Procedures


Sec. 2423.20  Issuance and contents of the complaint; answer to the 
complaint; amendments; role of Office of Administrative Law Judges.

    (a) Complaint. Whenever formal proceedings are deemed necessary, 
the Regional Director shall file and serve, in accordance with 
Sec. 2429.12 of this Subchapter, a complaint with the Office of 
Administrative Law Judges. The decision to issue a complaint shall not 
be subject to review. Any complaint may be withdrawn by the Regional 
Director prior to the hearing. The complaint shall set forth:
    (1) Notice of the charge;
    (2) The basis for jurisdiction;
    (3) The facts alleged to constitute an unfair labor practice;
    (4) The particular sections of 5 U.S.C., chapter 71 and the rules 
and regulations involved;
    (5) The relief sought;
    (6) Notice of the date, time, and place that a hearing will take 
place before an Administrative Law Judge; and
    (7) A brief statement explaining the nature of the hearing.
    (b) Answer. Within 20 days after the date of service of the 
complaint, the Respondent shall file and serve, in accordance with Part 
2429 of this Subchapter, an answer with the Office of Administrative 
Law Judges. The answer shall admit, deny, or explain each allegation of 
the complaint. If the Respondent has no knowledge of an allegation or 
insufficient information as to its truthfulness, the answer shall so 
state. Absent a showing of good cause to the contrary, failure to file 
an answer or respond to any allegation shall constitute an admission. 
Motions to extend the filing deadline shall be filed in accordance with 
Sec. 2423.21.
    (c) Amendments. The Regional Director may amend the complaint at 
any time before the answer is filed. The Respondent then has 20 days 
from the date of service of the amended complaint to file an answer 
with the Office of Administrative Law Judges. The answer may be amended 
by the Respondent within 20 days after the answer is filed. Thereafter, 
any requests to amend the complaint or answer must be made by motion to 
the Office of Administrative Law Judges.
    (d) Office of Administrative Law Judges. Pleadings, motions, 
conferences, hearings, and other matters throughout as specified in 
Subparts B, C, and D shall be administered by the Office of 
Administrative Law Judges. The Chief Administrative Law Judge, or any 
Administrative Law Judge designated by the Chief Administrative Law 
Judge, shall administer any matters properly submitted to the Office of 
Administrative Law Judges. Throughout subparts B, C, and D of this 
part, ``Administrative Law Judge'' refers to the Chief Administrative 
Law Judge or his or her designee.


Sec. 2423.21  Motions procedure.

    (a) General requirements. All motions, except those made during a 
prehearing conference or hearing, shall be in writing. Motions for an 
extension of time, postponement of a hearing, or any other procedural 
ruling shall include a statement of the position of the other parties 
on the motion. All written motions and responses shall satisfy the 
filing and service requirements of part 2429 of this subchapter.
    (b) Motions made to the Administrative Law Judge. Prehearing 
motions and motions made at the hearing shall be filed with the 
Administrative Law Judge. Unless otherwise specified in Subparts B or C 
of this part, or otherwise directed or approved by the Administrative 
Law Judge, prehearing motions shall be filed at least 15 days prior to 
the hearing, and responses to both prehearing motions and motions made 
at the hearing shall be filed within 5 days after the date of service 
of the motion. Posthearing motions shall be filed within 15 days after 
the date the hearing closes, and responses shall be filed within 5 days 
after the date of service of the motion. Motions to correct the 
transcript shall be filed with the Administrative Law Judge.
    (c) Post-transmission motions. After the case has been transmitted 
to the Authority, motions shall be filed with the Authority.
    (d) Interlocutory appeals. Motions for an interlocutory appeal of 
any ruling and responses shall be filed in accordance with this section 
and Sec. 2429.11 of this subchapter.


Sec. 2423.22  Intervenors.

    Motions for permission to intervene and responses shall be filed in 
accordance with Sec. 2423.21. Such motions shall be granted upon a 
showing that the outcome of the proceeding is likely to directly affect 
the movant's rights or duties. Intervenors may participate only: on the 
issues determined by the Administrative Law Judge to affect them; and 
to the extent permitted by the Judge. Denial of such motions may be 
appealed pursuant to Sec. 2423.21(d).


Sec. 2423.23  Prehearing disclosure.

    Unless otherwise directed or approved by the Judge, the parties 
shall exchange the following items at least 21 days prior to the 
hearing:
    (a) Proposed witness lists, including a brief synopsis of the 
expected testimony of each witness;
    (b) Copies of documents, with an index, to be offered into 
evidence; and
    (c) A brief statement of the theory of the case, including any and 
all defenses to the charges, and citations to any precedent relied 
upon.


Sec. 2423.24  Powers and duties of the Administrative Law Judge during 
prehearing proceedings.

    (a) Prehearing procedures. The Administrative Law Judge shall 
regulate the course and scheduling of prehearing matters, including 
prehearing orders, conferences, disclosure, motions, and subpoena 
requests.
    (b) Changing date, time, or place of hearing. After issuance of the 
complaint or any prehearing order, the Administrative Law Judge may, 
upon his or her own motion or proper cause shown by any party through 
the motions procedure in Sec. 2423.21, change the date, time, or place 
of the hearing.
    (c) Prehearing order. (1)The Administrative Law Judge may issue a 
prehearing order confirming or changing:
    (i) The date, time, or place of the hearing;
    (ii) The schedule for prehearing disclosure of witness lists and

[[Page 28385]]

documents intended to be offered into evidence at the hearing;
    (iii) The date for submission of procedural and substantive 
motions;
    (iv) The date, time, and place of the prehearing conference; and
    (v) Any other matter pertaining to prehearing or hearing 
procedures.
    (2) The prehearing order shall be served in accordance with 
Sec. 2429.12 of this Subchapter.
    (d) Prehearing conferences. The Administrative Law Judge shall 
conduct one or more prehearing conferences, either by telephone or in 
person, at least 7 days prior to the hearing date, unless the 
Administrative Law Judge determines that a prehearing conference would 
serve no purpose and no party has moved for a prehearing conference in 
accordance with Sec. 2423.21. If a prehearing conference is held, all 
parties must participate and be prepared to discuss, narrow, and 
resolve the issues set forth in the complaint and answer. The 
Administrative Law Judge may either prepare and file for the record a 
written summary of actions taken at the conference or direct a party to 
do so. Summaries of the conference shall be served on all parties in 
accordance with Sec. 2429.12 of this Subchapter.The following matters 
may also be considered at the prehearing conference:
    (1) Settlement of the case, either by the Judge conducting the 
prehearing conference or pursuant to Sec. 2423.25;
    (2) Admissions of fact, disclosure of contents and authenticity of 
documents, and stipulations of fact;
    (3) Objections to the introduction of evidence at the hearing, 
including oral or written testimony, documents, papers, exhibits, or 
other submissions proposed by a party;
    (4) Subpoena requests;
    (5) Any matters subject to official notice;
    (6) Outstanding motions; or
    (7) Any other matter that may expedite the hearing or aid in the 
disposition of the case.
    (e) Sanctions. The Administrative Law Judge may impose sanctions 
upon the parties as necessary and appropriate under the circumstances. 
Such authority includes, but is not limited to, the power to:
    (1) Prohibit a party who fails to comply with any requirement of 
Subpart B or C of this part from, as appropriate, introducing evidence, 
calling witnesses, or raising objections to the introduction of 
evidence or testimony of witnesses at the hearing.
    (2) Refuse to consider any submission that is not filed in 
compliance with Subparts B or C of this part.


Sec. 2423.25  Post Complaint, Prehearing Settlements.

    (a) Informal and formal settlements. Post complaint settlements may 
be either informal or formal.
    (1) Informal settlement agreements provide for withdrawal of the 
complaint by the Regional Director and are not subject to approval by 
or an order of the Authority. If the Respondent fails to perform its 
obligations under the informal settlement agreement, the Regional 
Director may re-institute formal proceedings consistent with this 
Subpart.
    (2) Formal settlement agreements are subject to approval by the 
Authority, and include the parties' agreement to waive their right to a 
hearing and acknowledgment that the Authority may issue an order 
requiring the Respondent to take action appropriate to the terms of the 
settlement. The formal settlement agreement shall also contain the 
Respondent's consent to the Authority's application for the entry of a 
decree by an appropriate federal court enforcing the Authority's order.
    (b) Informal settlement procedure. If the Charging Party and the 
Respondent enter into an informal settlement agreement that is accepted 
by the Regional Director, the Regional Director shall withdraw the 
complaint and approve the informal settlement agreement. If the 
Charging Party fails or refuses to become a party to an informal 
settlement agreement offered by the Respondent, and the Regional 
Director concludes that the offered settlement will effectuate the 
policies of the Federal Service Labor-Management Relations Statute, the 
Regional Director shall enter into the agreement with the Respondent 
and shall withdraw the complaint. The Charging Party then may obtain a 
review of the Regional Director's action by filing an appeal with the 
General Counsel as provided in subpart A of this part.
    (c) Formal settlement procedure. If the Charging Party and the 
Respondent enter into a formal settlement agreement that is accepted by 
the Regional Director, the Regional Director shall withdraw the 
complaint upon approval of the formal settlement agreement by the 
Authority. If the Charging Party fails or refuses to become a party to 
a formal settlement agreement offered by the Respondent, and the 
Regional Director concludes that the offered settlement will effectuate 
the policies of the Federal Service Labor-Management Relations Statute, 
the agreement shall be between the Respondent and the Regional 
Director. The formal settlement agreement together with the Charging 
Party's objections, if any, shall be submitted to the Authority for 
approval. The Authority may approve a formal settlement agreement upon 
a sufficient showing that it will effectuate the policies of the 
Federal Service Labor-Management Relations Statute.
    (d) Settlement judge program. The Administrative Law Judge, on his 
or her own motion, or upon the request of any party, may assign a judge 
or other appropriate official, who shall be other than the hearing 
judge unless otherwise mutually agreed to by the parties, to conduct 
negotiations for informal settlements.
    (1) The settlement official shall convene and preside over 
settlement conferences by telephone or in person.
    (2) The settlement official may require that the representative for 
each party be present at settlement conferences and that the parties or 
agents with full settlement authority be present or available by 
telephone.
    (3) All discussions between the parties and the settlement official 
shall be confidential. The settlement official shall not discuss any 
aspect of the case with the hearing judge, and no evidence regarding 
statements, conduct, offers of settlement, and concessions of the 
parties made in proceedings before the settlement official shall be 
admissible in any proceeding before the Administrative Law Judge or 
Authority, except by stipulation of the parties.


Sec. 2423.26  Stipulations of fact submissions.

    (a) General. In any unfair labor practice case under this 
Subchapter, upon agreement of all parties that no material issue of 
fact exists, the parties may jointly submit a motion to the 
Administrative Law Judge or Authority requesting consideration of the 
matter based upon stipulations of fact.
    (b) Stipulations to the Administrative Law Judge. Where the 
stipulation adequately addresses the appropriate material facts, the 
Administrative Law Judge may grant the motion and decide the case 
through stipulation.
    (c) Stipulations to the Authority. Where the stipulation adequately 
addresses the appropriate material facts and a decision by the 
Administrative Law Judge would not assist in the resolution of the 
case, the Authority may grant the motion and decide the case through 
stipulation.


Sec. 2423.27  Summary judgment motions.

    (a) Any party may move, no later than 15 days prior to the 
scheduled hearing, for a summary judgment in its favor upon any of the 
issues pleaded. The motion shall demonstrate that there is no genuine 
issue of material fact and that the moving party is entitled to a

[[Page 28386]]

judgment as a matter of law. Such motions shall be supported by 
documents, affidavits, applicable precedent, or other appropriate 
materials.
    (b) Responses must be filed within 10 days after the date of 
service of the motion. Responses may not rest upon mere allegations or 
denials but must show, by documents, affidavits, applicable precedent, 
or other appropriate materials, that there is a genuine issue to be 
determined at the hearing.
    (c) If all issues are decided by summary judgment, no hearing will 
be held and the Administrative Law Judge shall prepare a decision in 
accordance with Sec. 2423.34. If summary judgment is denied, or if 
partial summary judgment is granted, the Administrative Law Judge shall 
issue an opinion and order, subject to interlocutory appeal as provided 
in Sec. 2429.11 of this subchapter, and the hearing shall proceed as 
necessary.


Secs. 2423.28-2423.29  [Reserved]

Subpart C--Hearing Procedures


Sec. 2423.30  General rules.

    (a) Open hearing. The hearing shall be open to the public unless 
otherwise ordered by the Administrative Law Judge.
    (b) Administrative Procedure Act. The hearing shall, to the extent 
practicable, be conducted in accordance with the Administrative 
Procedure Act, 5 U.S.C. 554-557.
    (c) Rights of parties. A party shall have the right to appear at 
any hearing in person, by counsel, or by other representative; to 
examine and cross-examine witnesses; to introduce into the record 
documentary or other relevant evidence; and to submit rebuttal 
evidence, except that the participation of any party shall be limited 
to the extent prescribed by the Administrative Law Judge.
    (d) Objections. Objections are oral or written complaints 
concerning the conduct of a hearing. Any objection not raised to the 
Administrative Law Judge shall be deemed waived.
    (e) Oral argument. Any party shall be entitled, upon request, to a 
reasonable period prior to the close of the hearing for oral argument, 
which shall be included in the official transcript of the hearing.
    (f) Official transcript. An official reporter shall make the only 
official transcript of such proceedings. Copies of the transcript may 
be examined in the appropriate Regional Office during normal working 
hours. Parties desiring a copy of the transcript shall make 
arrangements for a copy with the official hearing reporter.


Sec. 2423.31  Powers and duties of the Administrative Law Judge at the 
hearing.

    (a) Conduct of hearing. The Administrative Law Judge shall conduct 
the hearing in a fair, impartial, and judicial manner, taking action as 
needed to avoid unnecessary delay and maintain order during the 
proceedings. The Administrative Law Judge may take any action necessary 
to schedule, conduct, continue, control, and regulate the hearing, 
including ruling on motions and taking official notice of material 
facts when appropriate. No provision of these regulations shall be 
construed to limit the powers of the Administrative Law Judge provided 
by the Administrative Procedure Act, 5 U.S.C. 556, 557.
    (b) Evidence. The Administrative Law Judge shall receive evidence 
and inquire fully into the relevant and material facts concerning the 
matters that are the subject of the hearing. The Administrative Law 
Judge may exclude any evidence which is immaterial, irrelevant, unduly 
repetitious, or customarily privileged. Rules of evidence shall not be 
strictly followed.
    (c) Bench decisions. The Administrative Law Judge may, upon mutual 
agreement of and motion by the parties, issue a decision orally at the 
close of the hearing when the nature of the case and the public 
interest warrant. If the motion is granted, the parties waive their 
right to file posthearing briefs and exceptions to the Authority. If 
the decision is announced orally, a copy thereof, excerpted from the 
transcript or recording, shall be furnished to the parties in 
accordance with Sec. 2429.12 of this subchapter. Irrespective of the 
date such copy is served, the issuance date of the decision shall be 
the date the certified record, as corrected, and any Order, is served.
    (d) Settlements after the opening of the hearing. As set forth in 
Sec. 2423.25(a), settlements may be either informal or formal.
    (1) Informal settlement procedure: Judge's approval of withdrawal. 
If the Charging Party and the Respondent enter into an informal 
settlement agreement that is accepted by the Regional Director, the 
Regional Director may request the Administrative Law Judge for 
permission to withdraw the complaint and, having been granted such 
permission, shall withdraw the complaint and approve the informal 
settlement between the Charging Party and Respondent. If the Charging 
Party fails or refuses to become a party to an informal settlement 
agreement offered by the Respondent, and the Regional Director 
concludes that the offered settlement will effectuate the policies of 
the Federal Service Labor-Management Relations Statute, the Regional 
Director shall enter into the agreement with the Respondent and shall, 
if granted permission by the Administrative Law Judge, withdraw the 
complaint. The Charging Party then may obtain a review of the Regional 
Director's decision as provided in subpart A of this part.
    (2) Formal settlement procedure: Judge's approval of settlement. If 
the Charging Party and the Respondent enter into a formal settlement 
agreement that is accepted by the Regional Director, the Regional 
Director may request the Administrative Law Judge to approve such 
formal settlement agreement, and upon such approval, to transmit the 
agreement to the Authority for approval. If the Charging Party fails or 
refuses to become a party to a formal settlement agreement offered by 
the Respondent, and the Regional Director concludes that the offered 
settlement will effectuate the policies of the Federal Service Labor-
Management Relations Statute, the agreement shall be between the 
Respondent and the Regional Director. After the Charging Party is given 
an opportunity to state on the record or in writing the reasons for 
opposing the formal settlement, the Regional Director may request the 
Administrative Law Judge to approve such formal settlement agreement, 
and upon such approval, to transmit the agreement to the Authority for 
approval.


Sec. 2423.32  Burden of proof before the Administrative Law Judge.

    The General Counsel shall present the evidence in support of the 
complaint and have the burden of proving the allegations of the 
complaint by a preponderance of the evidence. The Respondent shall have 
the burden of establishing any specific defenses that it raises to the 
charges in the complaint.


Sec. 2423.33  Posthearing briefs.

    Posthearing briefs may be filed with the Administrative Law Judge 
within a time period set by the Judge, not to exceed 30 days from the 
close of the hearing, unless otherwise directed by the judge, and shall 
satisfy the filing and service requirements of part 2429 of this 
subchapter. Reply briefs shall not be filed absent permission of the 
Judge. Motions to extend the filing deadline or for permission to file 
a reply brief shall be filed in accordance with Sec. 2423.21.

[[Page 28387]]

Sec. 2423.34  Decision and record.

    (a) Except when bench decisions are issued pursuant to 
Sec. 2423.31(c), the Administrative Law Judge shall prepare a written 
decision expeditiously in every case. All written decisions shall be 
served in accordance with Sec. 2429.12 of this subchapter. The decision 
shall set forth:
    (1) A statement of the issues;
    (2) Relevant findings of fact;
    (3) Conclusions of law and reasons therefor;
    (4) Credibility determinations as necessary; and
    (5) A recommended disposition or order.
    (b) The Judge shall transmit the decision and record to the 
Authority. The record shall include the charge, complaint, service 
sheet, answer, motions, rulings, orders, stipulations, objections, 
depositions, interrogatories, exhibits, documentary evidence, official 
transcript of the hearing, briefs, and any other filings or submissions 
made by the parties.


Secs. 2423.35-2423.39  [Reserved]

Subpart D--Post-transmission and Exceptions to Authority Procedures


Sec. 2423.40  Exceptions; oppositions and cross-exceptions; waiver.

    (a) Exceptions. Exceptions may be filed with the Authority within 
25 days after the date of service of the Judge's decision. Exceptions 
and supporting briefs shall satisfy the filing and service requirements 
of part 2429 of this subchapter.
    (1) Exceptions shall state: the specific findings, conclusions, 
determinations, rulings, or recommendations being challenged; the 
grounds relied upon; and the relief sought.
    (2) Exceptions shall include a supporting brief. The brief shall 
set forth in this order: all relevant facts; the issues to be 
addressed; and a separate argument for each issue. Statements of fact 
shall include specific citations to the record, and arguments shall be 
supported by specific citations to legal authority. Attachments to 
briefs shall be separately paginated and indexed as necessary. Briefs 
containing 20 or more pages shall include a table of contents and a 
table of legal authorities cited.
    (b) Oppositions and cross-exceptions. Unless otherwise directed or 
approved by the Authority, oppositions to exceptions and/or cross-
exceptions may be filed with the Authority within 20 days after the 
date of service of the exceptions. Oppositions shall state the specific 
exceptions being opposed. Oppositions and cross-exceptions shall be 
subject to the same requirements as exceptions set out in paragraph (a) 
of this section.
    (c) Waiver. Any exception not specifically urged shall be deemed to 
have been waived.


Sec. 2423.41  Action by the Authority; compliance with Authority 
decisions and orders.

    (a) In the absence of the filing of exceptions within the time 
limits established in Sec. 2423.40, the findings, conclusions, and 
recommendations in the decision of the Administrative Law Judge shall, 
without precedential significance, become the findings, conclusions, 
decision and order of the Authority, and all objections and exceptions 
to the rulings and decision of the Administrative Law Judge shall be 
deemed waived for all purposes. Failure to comply with any filing 
requirement established in Sec. 2423.40 may result in the information 
furnished being disregarded.
    (b) Whenever exceptions are filed in accordance with Sec. 2423.40, 
the Authority shall issue a decision affirming or reversing, in whole 
or in part, the decision of the Administrative Law Judge or disposing 
of the matter as is otherwise deemed appropriate.
    (c) Upon finding a violation, the Authority shall, in accordance 
with 5 U.S.C. 7118(a)(7), issue an order directing the violator, as 
appropriate, to cease and desist from any unfair labor practice, or to 
take any other action to effectuate the purposes of the Federal Service 
Labor-Management Relations Statute.
    (d) Upon finding no violation, the Authority shall dismiss the 
complaint.
    (e) After the Authority issues an order, the Respondent shall, 
within the time specified in the order, provide to the appropriate 
Regional Director a report regarding what compliance actions have been 
taken. Upon determining that the Respondent has not complied with the 
Authority's order, the Regional Director shall refer the case to the 
Authority for enforcement or take other appropriate action.


Sec. 2423.42  Backpay proceedings.

    After the entry of an Authority order directing payment of backpay, 
or the entry of a court decree enforcing such order, if it appears to 
the Regional Director that a controversy exists between the Authority 
and a Respondent regarding backpay that cannot be resolved without a 
formal proceeding, the Regional Director may issue and serve on all 
parties a notice of hearing before an Administrative Law Judge to 
determine the backpay amount. The notice of hearing shall set forth the 
specific backpay issues to be resolved. The Respondent shall, within 20 
days after the service of a notice of hearing, file an answer in 
accordance with Sec. 2423.20. After the issuance of a notice of 
hearing, the procedures provided in subparts B, C, and D of this part 
shall be followed as applicable.


Secs. 2423.43-2423.49  [Reserved]

PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS

    2. The authority citation for Part 2429 continues to read as 
follows:

    Authority: 5 U.S.C. 7134.

    3. Section 2429.1 is removed and reserved, and reads as follows:


Sec. 2429.1  [Removed and reserved]

    4. Section 2429.7 is amended by revising the heading, removing the 
word ``subpena'' and substituting ``subpoena'' throughout the section 
and by revising paragraphs (c) through (f) to read as follows:


Sec. 2429.7  Subpoenas.

* * * * *
    (c) A request for a subpoena by any person, as defined in 5 U.S.C. 
7103(a)(1), shall be in writing and filed with the Regional Director, 
in proceedings arising under part 2422 of this Subchapter, with the 
Office of Administrative Law Judges in proceedings arising under 
subparts B and C of part 2423 of this subchapter, or with the 
Authority, in proceedings arising under parts 2424 and 2425 of this 
subchapter, not less than 15 days prior to the opening of a hearing, or 
with the appropriate presiding official(s) during the hearing.
    (d) All requests shall name and identify the witnesses or documents 
sought and state the reasons therefor. The Authority, General Counsel, 
Office of Administrative Law Judges, Regional Director, Hearing 
Officer, or any other employee of the Authority designated by the 
Authority, as appropriate, shall grant timely requests upon the 
determination that the testimony or documents appear to be material and 
relevant to the matters under investigation and the request describes 
with sufficient particularity the documents sought. Requests for 
subpoenas made less than 15 days prior to the opening of the hearing 
shall be granted on sufficient explanation of why the request was not 
timely filed. Service of an approved subpoena is the responsibility of 
the party on whose behalf the subpoena was issued. The

[[Page 28388]]

subpoena shall show on its face the name and address of the party on 
whose behalf the subpoena was issued.
    (e)(1) Any person served with a subpoena who does not intend to 
comply, shall, within 5 days after the date of service of the subpoena 
upon such person, petition in writing to revoke the subpoena. A copy of 
any petition to revoke a subpoena shall be served on the party on whose 
behalf the subpoena was issued. Such petition to revoke, if made prior 
to the hearing, and a written statement of service, shall be filed with 
the Regional Director in proceedings arising under part 2422 of this 
subchapter, with the Administrative Law Judge in proceedings arising 
under part 2423 of this subchapter, and with the Authority, in 
proceedings arising under parts 2424 and 2425 of this subchapter for 
ruling. A petition to revoke a subpoena filed during the hearing, and a 
written statement of service, shall be filed with the appropriate 
presiding official(s).
    (2) The Authority, General Counsel, Administrative Law Judge, 
Regional Director, Hearing Officer, or any other employee of the 
Authority designated by the Authority, as appropriate, shall revoke the 
subpoena if, on further review, the person or evidence, the production 
of which is required, is not material and relevant to the matters under 
investigation or in question in the proceedings, or the subpoena does 
not describe with sufficient particularity the evidence the production 
of which is required, or if for any other reason sufficient in law the 
subpoena is invalid. The Authority, General Counsel, Administrative Law 
Judge, Regional Director, Hearing Officer, or any other employee of the 
Authority designated by the Authority, as appropriate, shall state the 
procedural or other ground for the ruling on the petition to revoke. 
The petition to revoke, any answer thereto, and any ruling thereon 
shall not become part of the official record except upon the request of 
the party aggrieved by the ruling.
    (f) Upon the failure of any person to comply with a subpoena issued 
and upon the request of the party on whose behalf the subpoena was 
issued, the Solicitor of the Authority shall institute proceedings on 
behalf of such party in the appropriate district court for the 
enforcement thereof, unless to do so would be inconsistent with law and 
the Federal Service Labor-Management Relations Statute.
    5. Section 2429.11 is revised to read as follows:


Sec. 2429.11  Interlocutory Appeals.

    (a) Except as set forth in paragraphs (b), (c), and (d), of this 
section, the Authority and the General Counsel ordinarily will not 
consider interlocutory appeals.
    (b) In an unfair labor practice proceeding under Part 2423 of this 
Subchapter, motions for an interlocutory appeal shall be filed in 
writing with the Administrative Law Judge within 5 days after the date 
of the contested ruling. The motion shall state why interlocutory 
review is appropriate, and why the Authority should modify or reverse 
the contested ruling.
    (c) The Judge shall grant the motion and certify the contested 
ruling to the Authority if:
    (1) The ruling involves an important question of law or policy 
about which there is substantial ground for difference of opinion; and
    (2) Immediate review will materially advance completion of the 
proceeding, or the denial of immediate review will cause undue harm to 
a party or the public.
    (d) If the motion is granted, the Judge or Authority may stay the 
hearing during the pendency of the appeal. If the motion is denied, 
exceptions to the contested ruling may be filed in accordance with 
Sec. 2423.40 of this Subchapter after the Judge issues a decision and 
recommended order in the case.
    6. Section 2429.12 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 2429.12  Service of process and papers by the Authority.

    (a) Methods of service. Notices of hearings, decisions and orders 
of Regional Directors, decisions and recommended orders of 
Administrative Law Judges, decisions of the Authority, complaints, 
written rulings on motions, and all other papers required by this 
Subchapter to be issued by the Authority, the General Counsel, Regional 
Directors, Hearing Officers, and Administrative Law Judges, shall be 
served personally, by first-class mail, or by certified mail. Provided, 
however: Where facsimile equipment is available, rulings on motions; 
information pertaining to prehearing disclosure, conferences, orders, 
or hearing dates, times, and locations; information pertaining to 
Sec. 2429.7; and other similar matters may be served by facsimile 
transmission.
* * * * *
    (c) Proof of service. Proof of service shall be verified by 
certificate of the individual serving the papers describing the manner 
of such service. When service is by mail, the date of service shall be 
the day when the matter served is deposited in the United States mail. 
When service is by facsimile, the date of service shall be the date the 
facsimile transmission is transmitted and, when necessary, verified by 
a dated facsimile record of transmission.
    7. Section 2429.13 is revised to read as follows:


Sec. 2429.13  Official time for witnesses.

    If the participation of any employee in any phase of any proceeding 
before the Authority, including the investigation of unfair labor 
practice charges and representation petitions and the participation in 
hearings and representation elections, is deemed necessary by the 
Authority, the General Counsel, any Administrative Law Judge, Regional 
Director, Hearing Officer, or other agent of the Authority designated 
by the Authority, the 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.
    8. Section 2429.14 is revised to read as follows:


Sec. 2429.14  Witness fees.

    (a) Witnesses, whether appearing voluntarily or pursuant to a 
subpoena, shall be paid the fee and mileage allowances which are paid 
subpoenaed witnesses in the courts of the United States. However, any 
witness who is employed by the Federal Government shall not be entitled 
to receive witness fees.
    (b) Witness fees, as appropriate, as well as transportation and per 
diem expenses for a witness shall be paid by the party that calls the 
witness to testify.
    9. Section 2429.21 is amended by revising paragraph (b) to read as 
follows:


Sec. 2429.21  Computation of time for filing papers.

* * * * *
    (b) Except when filing an unfair labor practice charge pursuant to 
part 2423 of this subchapter, a representation petition pursuant to 
part 2422 of this subchapter, and a request for an extension of time 
pursuant to Sec. 2429.23(a) of this part, when this Subchapter requires 
the filing of any paper with the Authority, the General Counsel, a 
Regional Director, or an Administrative Law Judge, the date of filing 
shall be determined by the date of mailing indicated by the postmark 
date or the date a facsimile is transmitted. If no postmark date is 
evident on the mailing, it shall be presumed to have

[[Page 28389]]

been mailed 5 days prior to receipt. If the date of facsimile 
transmission is unclear, the date of transmission shall be the date the 
facsimile transmission is received. If the filing is by personal or 
commercial delivery, it shall be considered filed on the date it is 
received by the Authority or the officer or agent designated to receive 
such materials.
* * * * *
    10. Section 2429.22 is revised to read as follows:


Sec. 2429.22  Additional time after service by mail or facsimile.

    Except as to the filing of an application for review of a Regional 
Director's Decision and Order under Sec. 2422.31 of this subchapter, 
whenever a party has the right or is required to do some act pursuant 
to this Subchapter within a prescribed period after service of a notice 
or other paper upon such party, and the notice or paper is served on 
such party by mail or by facsimile transmission, 5 days shall be added 
to the prescribed period: Provided, however, that 5 days shall not be 
added in any instance where an extension of time has been granted.
    11. Section 2429.24 is amended by revising paragraph (e) to read as 
follows:


Sec. 2429.24  Place and method of filing; acknowledgment.

* * * * *
    (e) All documents filed pursuant to this section shall be filed in 
person, by commercial delivery, by first-class mail, or by certified 
mail. Provided, however, that where facsimile equipment is available, 
motions; information pertaining to prehearing disclosure, conferences, 
orders, or hearing dates, times, and locations; information pertaining 
to Sec. 2429.7; and other similar matters may be filed by facsimile 
transmission, provided that the document filed does not exceed 5 pages 
in total length.
* * * * *
    12. Section 2429.25 is revised to read as follows:


Sec. 2429.25  Number of copies and paper size.

    Unless otherwise provided by the Authority or the General Counsel, 
or their designated representatives, as appropriate, or under this 
Subchapter, and with the exception of any prescribed forms, any 
document or paper filed with the Authority, General Counsel, 
Administrative Law Judge, Regional Director, or Hearing Officer, as 
appropriate, under this Subchapter, together with any enclosure filed 
therewith, shall be submitted on 8\1/2\  x  11 inch size paper in an 
original and four (4) legible copies. Where facsimile filing is 
permitted pursuant to Sec. 2924.24(e), one (1) legible copy, capable of 
reproduction, shall be sufficient. A clean copy capable of being used 
as an original for purposes such as further reproduction may be 
substituted for the original.
    13. Section 2429.27 is amended by revising paragraphs (b) and (d) 
to read as follows:


Sec. 2429.27  Service; statement of service.

* * * * *
    (b) Service of any document or paper under this Subchapter, by any 
party, including documents and papers served by one party on another, 
shall be accomplished by certified mail, first-class mail, or in 
person. Where facsimile equipment is available, service by facsimile of 
documents described in Sec. 2429.24(e) is permissible.
* * * * *
    (d) The date of service or date served shall be the day when the 
matter served is deposited in the U.S. mail, delivered in person, or, 
in the case of facsimile transmissions, the date of transmission.

    Dated: May 20, 1997.
Solly Thomas,
Executive Director, Federal Labor Relations Authority.
[FR Doc. 97-13661 Filed 5-22-97; 8:45 am]
BILLING CODE 6727-01-P