[Federal Register Volume 63, Number 163 (Monday, August 24, 1998)]
[Proposed Rules]
[Pages 45013-45019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22645]
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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. 63, No. 163 / Monday, August 24, 1998 /
Proposed Rules
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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2421, 2423, and 2429
Meaning of Terms as Used in This Subchapter; Unfair Labor
Practice Proceedings; Miscellaneous and General Requirements
AGENCY: Office of the General Counsel, Federal Labor Relations
Authority.
ACTION: Notice of proposed rulemaking; notice of meeting.
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SUMMARY: The General Counsel of the Federal Labor Relations Authority
(FLRA) proposes to revise the regulations regarding the prevention,
resolution, and investigation of unfair labor practice (ULP) disputes
(part 2423, subpart A). The purpose of the proposed revisions is to
facilitate dispute resolution and to simplify, clarify, and improve the
processing of ULP charges. Implementation of the proposed changes will
enhance the purposes and policies of the Federal Service Labor-
Management Relations Statute (Statute) by preventing ULP disputes,
resolving disputes that arise, and fully investigating and taking
determinative action in disputes that are not resolved. The proposed
revisions implement the FLRA's agency-wide collaboration and
alternative dispute resolution initiative to assist labor and
management parties in developing collaborative relationships, and to
provide dispute resolution services in ULP, representation,
negotiability, impasses, and arbitration cases pending before the
Office of the General Counsel, the three Authority Members, and the
Federal Service Impasses Panel. In addition, two definitions of terms
used only in subpart A of part 2423 are proposed in part 2421, and it
is proposed that one section in part 2429 be clarified in light of the
proposed revisions to subpart A of part 2423.
DATES: Comments must be received on or before October 19, 1998. See
SUPPLEMENTARY INFORMATION section for meeting dates.
ADDRESSES: Mail or deliver written comments to the Office of the
General Counsel, Federal Labor Relations Authority, 607 14th Street,
NW, Suite 210, Washington, DC 20424-0001. See SUPPLEMENTARY INFORMATION
section for meeting addresses.
FOR FURTHER INFORMATION CONTACT: Regulatory Information: David L.
Feder, Deputy General Counsel, at the address for the Office of the
General Counsel or by telephone # (202) 482-6680 ext. 203, facsimile #
(202) 482-6608. See SUPPLEMENTARY INFORMATION for persons to contact
for meeting registration.
SUPPLEMENTARY INFORMATION: The Office of the General Counsel (OGC) of
the FLRA proposes modifications to the existing rules and regulations
in subpart A of part 2423 of title 5 of the Code of Federal Regulations
regarding the prevention of ULPs. These proposed revisions are part of
the FLRA's initiative to facilitate dispute resolution and to simplify,
clarify, and improve the processing of ULP charges. On July 31, 1997,
the Authority Members published final regulations (62 FR 40911), which
became effective on October 1, 1997, on the processing of ULP
complaints from the issuance of a complaint through the transfer of the
case to the Authority Members after the issuance of a decision and
recommended order of an Administrative Law Judge. These proposed
revisions concern the prevention of ULP disputes and the investigation,
resolution, and disposition of ULP charges.
Subpart A of the regulations has not been reexamined in its
entirety since the regulations were enacted in 1980. Since that time,
the OGC has established internal policies to assist parties in
preventing and resolving ULP disputes and in investigating ULP charges.
Recent examples of these policies concern Settlement; Prosecutorial
Discretion; Injunctions; Scope of Investigations; Intervention; Quality
in ULP Investigations; and Facilitation, Intervention, Training, and
Education. In November 1997, the FLRA undertook a comprehensive
Customer Service Survey. The General Counsel also has held over 30 Town
Hall Meetings throughout the country, open to all parties, to discuss
the manner in which the OGC: (1) prevents ULPs by assisting parties in
avoiding ULP disputes and resolving those disputes which precipitate
the filing of a ULP charge; and (2) investigates and takes disposition
on the merits in those disputes which are not resolved. Many of the
proposed revisions are driven by the discussions during those Town Hall
meetings and the preliminary results of the Customer Service Survey.
These proposed revisions provide parties with alternative dispute
resolution (ADR) processes to avoid ULP disputes as well as to resolve
any ULP disputes that materialize prior to the filing of a ULP charge
and prior to issuance of a complaint.
To obtain additional input from our customers, meetings to discuss
these proposed revisions will be held in each of the seven Regional
Office cities and at OGC Headquarters at the following locations, dates
and times:
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Office Location of meeting Date Time
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Boston............................ Thomas P. O'Neill Jr. Sept. 17, 1998............ 9:30 a.m.
Federal Building, 10
Causeway Street, 1st
Floor Auditorium, Boston,
MA.
Washington, DC.................... 1730 M Street, NW, Suite Sept. 17, 1998............ 9:30 a.m.
300, Conference Room,
Washington, DC.
Atlanta........................... Summit Building, 401 West Sept. 17, 1998............ 9:30 a.m.
Peachtree Street, 31st
Floor, Atlanta, GA.
Chicago........................... Ralph H. Metcalfe Federal Oct. 6, 1998.............. 9:00 a.m.
Building, 77 West Jackson
Blvd., Room 328, Chicago,
IL.
Dallas............................ A. Maceo Smith Federal Sept. 17, 1998............ 9:30 a.m.
Building, 525 Griffin
Street, Room 502, Dallas,
TX.
Denver............................ 1244 Speer Blvd., Room Sept. 17, 1998............ 9:30 a.m.
700, Denver, CO.
San Francisco..................... Oakland Federal Building, Oct. 8, 1998.............. 9:00 a.m.
1301 Clay Street, North
Tower, 2nd Floor,
Conference Rooms A and B,
Oakland, CA.
[[Page 45014]]
OGC HQ, Washington, DC............ 607 14th Street, NW, 2nd Sept. 17, 1998............ 9:30 a.m.
Floor Agenda Room,
Washington, DC.
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Persons interested in attending any of these Regional Office City
meetings on this proposed rulemaking should write or call the following
persons at the addresses and telephone numbers listed to confirm
attendance at the selected site: Gary J. Lieberman, Boston Regional
Office, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, telephone
# (617) 424-5731 ext. 20, facsimile # (617) 424-5743; Barbara S.
Liggett, Washington Regional Office, 1255 22nd Street, NW, Suite 400,
Washington, DC 20037-1206, telephone # (202) 653-8502 ext. 23,
facsimile # (202) 653-5091; Gail R. Hitchcock, Atlanta Regional Office,
Marquis Two Tower, Suite 701, 285 Peachtree Center Ave., Atlanta, GA
30303-1270, telephone # (404) 331-5212 ext. 17, facsimile # (404) 331-
5280; Philip T. Roberts, Chicago Regional Office, 55 West Monroe
Street, Suite 1150, Chicago, IL 60603-9727, telephone # (312) 886-3465
ext. 20, facsimile # (312) 866-5977; Billie Jean Faulks, Dallas
Regional Office, 525 South Griffin Street, Suite 926, LB 107, Dallas,
TX 75202-5093, telephone # (214) 767-6266 ext. 10, facsimile # (214)
767-0156; Timothy J. Sullivan, Denver Regional Office, 1244 Speer
Blvd., Suite 100, Denver, CO 80204-3581, telephone # (303) 844-5226
ext. 12, facsimile # (303) 844-2774; Lisa C. Vandenberg, San Francisco
Regional Office, 901 Market St., Suite 220, San Francisco, CA 94103-
1791, telephone # (415) 356-5002 ext. 18, facsimile # (415) 356-5017;
and Nancy Speight, Office of the General Counsel, 607 14th Street, NW,
Suite 210, Washington, DC 20424-0001, telephone # (202) 482-6680 ext.
205, facsimile # (202) 482-6608.
Copies of all written comments will be available for inspection and
photocopying between 8:00 a.m. and 5:00 p.m., Monday through Friday, at
the Office of General Counsel, Suite 210, 607 14th St., NW, Washington,
DC 20424-0001.
Sectional analyses of the proposed amendments to Part 2421--Meaning
of Terms As Used in This Subchapter, Part 2423--ULP Proceedings, and
Part 2429--Miscellaneous and General Requirements are as follows:
Part 2421--Meaning of Terms as Used in This Subchapter
Section 2421.23
The term Charging Party, which appears only in subpart A of part
2423, is not defined in the current regulations. This section now
defines Charging Party.
Section 2421.24
The term Charged Party, which appears only in subpart A of part
2423, is not defined in the current regulations. This section now
defines Charged Party.
Part 2423--Unfair Labor Practice Proceedings
Section 2423.1
ULP charges filed on or after January 11, 1979, have been processed
under this part. Since there are no charges pending that were filed
before that date, this section is no longer required to serve as a
transitional guide and is therefore proposed to be deleted.
It is proposed that current Sec. 2423.2 be renumbered as 2423.1.
The current section encourages the parties to meet and resolve ULP
disputes prior to filing ULP charges. The proposed revisions continue
to encourage and further support such dispute resolution activities by
clarifying that the parties may jointly request or agree to have the
OGC assist them in this endeavor. This proposed revision is consistent
with a revision made to the processing of representation petitions in
1995 (60 FR 67288) (Dec. 29, 1995). The proposed revision also
highlights that Regional Office representatives may assist parties in
informally resolving their ULP dispute as part of the investigation.
Since Regional Office representatives are available to assist
parties in resolving ULP disputes both prior to the filing of a charge
and during the course of the investigation, there is no longer a need
to require a 15-day delay before a Regional Office begins processing a
charge. Accordingly, it is proposed that paragraph (c) be deleted.
Section 2423.2
Since the enactment of the Statute, the OGC has assisted employees,
labor organizations, and agencies in avoiding and resolving labor-
management disputes and enhancing labor-management relationships as
governed by the Statute. The use of a problem-solving approach and the
provision of facilitation, intervention, training, and education
services to the parties provide the participants in the Federal sector
labor-management relations program with an alternative to adversarial
litigation.
The preliminary results of the Customer Service Survey reveal that
improved relationships between labor and management result in the
filing of fewer ULP charges. The provision of ADR services to parties
promotes the purposes and policies of the Statute by: improving and
enhancing parties' labor-management relationships, enabling parties to
avoid ULP disputes, and assisting the parties in resolving ULP disputes
among themselves.
This proposed new section sets forth the purpose for providing ADR
services and the types of services that are available to the parties.
Parties may request assistance or a Region may suggest that the parties
may benefit from such ADR programs. In either situation, ADR programs
under this section are voluntary and undertaken only upon agreement by
both parties.
Section 2423.3
This section, which identifies who may file a ULP charge, is
substantially unchanged.
Section 2423.4
This section, describing the content of a ULP charge, is
substantially unchanged. Sometimes, the individual signing a charge, or
the individual upon whom a charge is served, is not the point of
contact for the Charging or Charged Party, respectively. To avoid any
delay in commencement of the investigation, this section clarifies that
a charge also identifies the points of contact for both parties. This
section also requires facsimile numbers, when such equipment is
available, to be supplied on the charge form. The section continues to
require that the charge contain a clear and concise statement of the
facts alleged to constitute a ULP. However, it is proposed that a party
filing a charge need not be required to specifically cite what
subsection(s) of 5 U.S.C. 7116(a) or (b) are being alleged. Sometimes
parties filing charges are uncertain which subsection to allege and
thus list all or inapplicable subsections, which only confuses the
parties and delays the investigation. The section clarifies that a
charge is a self-contained document which describes the alleged ULP
without the need to refer to other documents. This section also
provides further guidance to parties filing charges as to what
constitutes the supporting evidence and documents which are submitted
to the Region when filing a charge.
[[Page 45015]]
Section 2423.5
The current section, which provides for initial selection of the
ULP procedure or the negotiability procedure when the same issue is
involved, is identical to the provision in part 2424, section 2424.5.
The Chair and Members of the Authority published a Federal Register
notice (63 FR 19413, 19414) (Apr. 20, 1998), stating their intent to
review, and where appropriate, implement mechanisms to improve the
manner in which negotiability appeals are processed, and to revise the
regulations governing review of these appeals. One issue the Authority
requested comments on concerns the relationship between issues arising
under the negotiability appeals process and the ULP process.
Accordingly, since the substance of section 2423.5 is currently under
review, this section is proposed to be removed and reserved.
Section 2423.6
This section continues to describe the requirements for filing and
serving ULP charges and is substantially unchanged. One proposed change
is to allow filing of a charge with a Regional Office by facsimile
transmission. It is proposed that supporting evidence and documents
will continue to be required to be submitted by mail or delivered in
person, not by facsimile transmission. When a charge is filed by
facsimile transmission, an original of the charge need not also be sent
to the Region. Charges also may be served on Charged Parties by
facsimile transmission, if that equipment is available.
Section 2423.7
This proposed new section establishes an alternative case
processing procedure to attempt to resolve the allegations in the
charge after it is filed. This procedure is voluntary and may be
undertaken only upon agreement by both parties. When utilized, the
Region undertakes a problem-solving approach to assist the parties in
resolving the dispute underlying the charge in lieu of initially
investigating the particular facts and determining the merits of the
charge. This alternative case processing procedure allows the parties
to attempt to resolve their underlying dispute prior to the Region
taking evidence. Thus, the Region does not gather any testimonial or
documentary evidence or positions on the merits of the charge during
the alternative case processing procedure. Should the parties be unable
to resolve their dispute, an agent of the Region who was not involved
in the alternative case processing procedure conducts an investigation.
Preliminary results of the Customer Service Survey confirm that a
majority of charges are resolved during the investigatory process. This
alternative case processing procedure allows the parties to agree to
attempt to resolve their dispute prior to attempting to prove their
allegations or defenses. The use of this procedure will assist the
parties in resolving disputes earlier in the process, even if a charge
is filed.
Section 2423.8
This section, similar to proposed Sec. 2423.1, deletes the
requirement to delay an investigation for 15 days since Regional Office
representatives are available to assist parties in resolving ULP
disputes both prior to the filing of a charge and during the course of
the investigation. This section continues the requirement that all
persons are expected to fully cooperate with the Regional Director in
the investigation of charges. The term ``fully cooperate'' is not
currently defined in the regulations. The proposed regulation
delineates what is included within the requirement to cooperate. The
cooperation requirement is identical for all parties, whether a
Charging Party or a Charged Party. The section provides that
cooperation includes, as deemed appropriate by the Regional Director:
(1) making union officials, employees, and agency supervisors and
managers available to give sworn/affirmed testimony regarding matters
under investigation; (2) producing documentary evidence pertinent to
the matters under investigation; and (3) providing statements of
position in the matters under investigation. This is the same standard
of cooperation that always has been applied to Charging Parties and
that always has been expected of Charged Parties. In addition, the
preliminary results of the Customer Service Survey reveal that a
significant majority of agency and labor organization respondents and
individual respondents believes that parties should be required to
cooperate during an investigation. A party is only required to
cooperate to that degree deemed appropriate by the Regional Director,
as determined on a case-by-case basis. However, any party may submit
evidence to the Region during an investigation even if that evidence
was not requested by the Region. In those situations where a Charging
Party fails or refuses to cooperate and such cooperation has been
deemed appropriate by the Regional Director, the Region may dismiss the
charge. In those situations where a Charged Party fails or refuses to
cooperate and such cooperation has been deemed appropriate by the
Regional Director, the General Counsel may, in appropriate
circumstances, exercise existing authority to issue an investigative
subpoena under 5 U.S.C. 7132(a) of the Statute and enforce an
investigative subpoena in an appropriate United States district court
under 5 U.S.C. 7132(b).
This section also continues the General Counsel's policy to protect
the identity of individuals who submit statements and information
during the investigation, and to protect against the disclosure of
documents obtained during the investigation, as a means of assuring the
General Counsel's continuing ability to obtain all relevant
information. The section also notes the new prehearing disclosure
requirement in Sec. 2423.23 that requires parties, after issuance of
complaint but before a ULP hearing, to exchange identification of
witnesses, a synopsis of their expected testimony and documents
proposed to be offered into evidence at the hearing.
Section 2423.9
This section, providing for the amendment of charges, is unchanged.
Section 2423.10
This section, describing the actions that can be taken by a
Regional Director on a charge and the processing of requests for
appropriate temporary relief under 5 U.S.C. 7123(d), remains unchanged
except for editorial modifications.
Section 2423.11
This section describes the process for appealing Regional Director
decisions not to issue a complaint. Aside from editorial modifications,
the section deletes the requirement that a Charging Party serve notice
of an appeal or a request for an extension of time on the other
party(ies). The current section provides that the failure to fulfill
this service requirement does not affect the validity of the appeal.
Since the OGC notifies the Charged Party of an appeal and a request for
extension of time when confirming receipt of an appeal, there is no
need to continue this service requirement. In addition, a new
subsection (e) is added which sets forth the grounds upon which an
appeal may be granted by the General Counsel. The General Counsel may
grant an appeal if a party establishes that one of the following five
grounds exists:
1. The Regional Director's decision did not consider material facts
that would have resulted in issuance of a complaint;
[[Page 45016]]
2. The Regional Director's decision is based on a material fact
that is clearly erroneous;
3. The Regional Director's decision is based on an incorrect
statement of the applicable rule of law;
4. There is no Authority precedent on the legal issue in the case;
or
5. The manner in which the Region conducted the investigation has
resulted in prejudicial error.
These standards, which were first announced in 1996, set forth a
fair and consistent approach to the decisional analysis that is
conducted in each appeal case. Their publication as part of the
regulations puts all persons on notice of the standards needed to be
established to sustain an appeal. In an effort to further promote the
parties' application of the appeals standards in fashioning their
appeal, every dismissal letter issued by a Regional Director routinely
will include an attachment which provides an explanation of the appeals
process and the manner in which each of the standards for review can be
established. The proposed regulation also adds a subsection to codify
the current practice with respect to motions to reconsider decisions on
appeal. Motions are granted only if extraordinary circumstances are
established in the moving papers.
Section 2423.12
This section describes the settlement of ULP charges after a
Regional Director determination to issue a complaint but prior to the
actual issuance of a complaint. This section differs from proposed
Sec. 2423.1 which concerns resolving ULP disputes both before and after
a charge is filed, but in any event before the Regional Director makes
a determination to issue a complaint. This section, which provides for
both unilateral and bilateral settlement agreements, remains unchanged
except for editorial modifications.
Part 2429--Miscellaneous and General Requirements
Section 2429.24
Paragraph (e) of this section, which generally concerns the manner
in which parties may file documents, is revised to reference that ULP
charges are filed pursuant to Sec. 2423.6, and that supporting evidence
and documents may not be submitted to the Region by facsimile
transmission.
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the General Counsel of the FLRA has determined that this
regulation, as amended, will not have a significant economic impact on
a substantial number of small entities, because this rule applies to
federal employees, federal agencies, and labor organizations
representing federal employees.
Unfunded Mandates Reform Act of 1995
This rule change will not result in the expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100,000,000 or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This action is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Paperwork Reduction Act of 1995
The amended regulations contain no additional information
collection or record keeping requirement under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501, et seq.
List of Subjects in 5 CFR Parts 2421, 2423, and 2429
Administrative practice and procedure, Government employees, Labor
management relations.
For the reasons discussed in the preamble, the General Counsel of
the Federal Labor Relations Authority proposes to amend 5 CFR Parts
2421, 2423, and 2429 as follows:
PART 2421--MEANING OF TERMS AS USED IN THIS SUBCHAPTER
1. The authority citation for part 2421 continues to read as
follows:
Authority: 5 U.S.C. 7134.
2. Part 2421 is amended by adding Secs. 2421.23 and 2421.24 to read
as follows:
Sec. 2421.23 Charging Party.
Charging Party means the individual, labor organization, activity
or agency filing an unfair labor practice charge with a Regional
Director under part 2423 of this subchapter.
Sec. 2421.24 Charged Party.
Charged Party means the activity, agency or labor organization
charged with allegedly having engaged in, or engaging in, an unfair
labor practice under part 2423 of this subchapter.
PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS
3. The authority citation for part 2423 continues to read as
follows:
Authority: 5 U.S.C. 7134.
3a. Section 2423.1 is removed.
4. Subpart A of part 2423 is revised to read as follows:
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sec.
2423.1 Resolution of unfair labor practice disputes prior to a
Regional Director determination to issue a complaint.
2423.2 Alternative Dispute Resolution (ADR) services.
2423.3 Who may file charges.
2423.4 Contents of the charge; supporting evidence and documents.
2423.5 [Reserved]
2423.6 Filing and service of copies.
2423.7 Alternative case processing procedure.
2423.8 Investigation of charges.
2423.9 Amendment of charges.
2423.10 Action by the Regional Director.
2423.11 Determination not to issue complaint; review of action by
the Regional Director.
2423.12 Settlement of unfair labor practice charges after a
Regional Director determination to issue a complaint but prior to
issuance of a complaint.
2423.13-2423.19 [Reserved]
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sec. 2423.1 Resolution of unfair labor practice disputes prior to a
Regional Director determination to issue a complaint.
(a) Resolving unfair labor practice disputes prior to filing a
charge. The purposes and policies of the Federal Service Labor-
Management Relations Statute can best be achieved by the collaborative
efforts of all persons covered by that law. The General Counsel
encourages all persons to meet and, in good faith, attempt to resolve
unfair labor practice disputes prior to filing unfair labor practice
charges. If requested or agreed to by both parties, a representative of
the Regional Office, in appropriate circumstances, may participate in
these meetings to assist the parties in identifying the issue and their
interests and in resolving the dispute.
[[Page 45017]]
(b) Resolving unfair labor practice disputes after filing a charge.
The General Counsel encourages the informal resolution of unfair labor
practice allegations subsequent to the filing of a charge and prior to
the issuance of a complaint by a Regional Director. A representative of
the appropriate Regional Office, as part of the investigation, may
assist the parties in informally resolving their dispute.
Sec. 2423.2 Alternative Dispute Resolution (ADR) services.
(a) Purpose of ADR services. The Office of the General Counsel
furthers its mission by promoting stable and productive labor-
management relationships governed by the Federal Service Labor-
Management Relations Statute and by providing services which assist
labor organizations and agencies, on a voluntary basis: to develop
collaborative labor-management relationships; to avoid unfair labor
practice disputes; and to resolve any unfair labor practice disputes
informally.
(b) Types of ADR Services. Agencies and labor organizations may
request the Office of the General Counsel to provide any of the
following services:
(1) Facilitation. Assisting the parties in improving their labor-
management relationship as governed by the Federal Service Labor-
Management Relations Statute;
(2) Intervention. Intervening when parties are experiencing or
expect significant unfair labor practice disputes;
(3) Training. Training labor organization officials and agency
representatives on their rights and responsibilities under the Federal
Service Labor-Management Relations Statute and how to avoid litigation
over those rights and responsibilities, and on utilizing problem
solving and ADR skills, techniques, and strategies to resolve
informally unfair labor practice disputes; and
(4) Education. Working with the parties to recognize the benefits
of, and establish processes for, avoiding unfair labor practice
disputes, and resolving any unfair labor practice disputes that arise
by consensual, rather than adversarial, methods.
(c) ADR services after initiation of an investigation. As part of
processing an unfair labor practice charge, the Office of the General
Counsel may suggest to the parties, as appropriate, that they may
benefit from these ADR services.
Sec. 2423.3 Who may file charges.
Any person may charge an activity, agency or labor organization
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) What to file. The Charging Party may file a charge alleging a
violation of 5 U.S.C. 7116 by completing a form prescribed by the
General Counsel, or on a substantially similar form, that contains the
following information:
(1) The name, address, telephone number, and facsimile number
(where facsimile equipment is available) of the Charging Party;
(2) The name, address, telephone number, and facsimile number
(where facsimile equipment is available) of the Charged Party;
(3) The name, address, telephone number, and facsimile number
(where facsimile equipment is available) of the Charging Party's point
of contact;
(4) The name, address, telephone number, and facsimile number
(where facsimile equipment is available) of the Charged Party's point
of contact;
(5) A clear and concise statement of the facts alleged to
constitute an unfair labor practice including the date and place of
occurrence of the particular acts; and
(6) 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
Office of the Special Counsel 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) Declaration of truth and statement of service. A 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. A charge shall also contain a statement
that the Charging Party served the charge on the Charged Party, and
shall list the person's name, title, location, date of service and
method of service.
(c) Self-contained document. A charge shall be a self-contained
document describing the alleged unfair labor practice without a need to
refer to other documents.
(d) Supporting evidence and documents and potential witnesses. When
filing a charge, the Charging Party shall submit to the Regional
Director any supporting evidence and documents, including, but not
limited to, correspondence and memoranda, records, reports, applicable
collective bargaining agreement clauses, memoranda of understanding,
minutes of meetings, applicable regulations, statements of position and
other documentary evidence. The Charging Party also shall identify
potential witnesses and shall provide a brief synopsis of their
expected testimony.
Sec. 2423.5 [Reserved]
Sec. 2423.6 Filing and service of copies.
(a) Where to file. A Charging Party shall file the charge 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 in any of those regions.
(b) Filing date. A charge is deemed filed when it is received by a
Regional Director.
(c) Method of filing. A Charging Party may file a charge with a
Regional Office in person or by commercial delivery, first-class mail,
or certified mail. A Charging Party also may file a charge by facsimile
transmission if the charge does not exceed 5 pages. If filing by
facsimile transmission, the Charging Party is not required to file an
original copy of the charge with the Region. Supporting evidence and
documents may not be submitted by facsimile transmission.
(d) Service of the charge. The Charging Party shall serve a copy of
the charge (without supporting evidence and documents) on the Charged
Party. Where facsimile equipment is available, the charge may be served
by facsimile transmission in accordance with paragraph (c) of this
section. The Region routinely serves a copy of the charge on the
Charged Party, but the Charging Party remains responsible for serving
the charge in accordance with this paragraph.
Sec. 2423.7 Alternative case processing procedure.
(a) Alternative case processing procedure. The Region may utilize
an alternative case processing procedure to assist the parties in
resolving their unfair labor practice dispute, if the parties agree, by
facilitating a problem-solving approach, rather than initially
investigating the particular facts and determining the merits of the
charge.
[[Page 45018]]
(b) No evidence is taken. The purpose of the alternative case
processing procedure is to resolve the underlying unfair labor practice
dispute without determining the merits of the charge. The role of the
agent is to assist the parties in that endeavor by facilitating a
solution rather than conducting an investigation. No testimonial or
documentary evidence or position on the merits of the charge may be
gathered during the alternative case processing procedure or entered
into the case file.
(c) Investigation is not waived. If the parties are unable to
resolve the dispute, the Region conducts an investigation on the merits
of the charge. The agent who is involved in the alternative case
processing procedure may not be involved in any subsequent
investigation on the merits of the charge.
Sec. 2423.8 Investigation of charges.
(a) Investigation. The Regional Director, on behalf of the General
Counsel, conducts such investigation of the charge as the Regional
Director deems necessary. During the course of the investigation, all
parties involved are afforded an opportunity to present their evidence
and views to the Regional Director.
(b) Cooperation. 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 timely submission of all
potentially relevant information from all potential sources during the
course of the investigation. All persons are expected to cooperate
fully with the Regional Director in the investigation of charges.
Cooperation includes any of the following actions, when deemed
appropriate by the Regional Director:
(1) Making union officials, employees and agency supervisors and
managers available to give sworn/affirmed testimony regarding matters
under investigation;
(2) Producing documentary evidence pertinent to the matters under
investigation; and
(3) Providing statements of position on the matters under
investigation.
(c) Confidentiality. It is the General Counsel's policy to protect
the identity of individuals who submit statements and information
during the investigation, and to protect against the disclosure of
documents obtained during the investigation, as a means of assuring the
General Counsel's continuing ability to obtain all relevant
information. After issuance of a complaint and in preparation for a
hearing, however, identification of witnesses, a synopsis of their
expected testimony and documents proposed to be offered into evidence
at the hearing may be disclosed as required by the prehearing
disclosure requirements in Sec. 2423.23.
Sec. 2423.9 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. 2423.10 Action by the Regional Director.
(a) Regional Director action. The Regional Director may take action
which may consist of the following, as appropriate:
(1) Approving a request to withdraw a charge;
(2) Refusing to issue a complaint;
(3) Approving a written settlement agreement in accordance with the
provisions of Sec. 2423.12;
(4) Issuing a complaint; or
(5) Withdrawing a complaint.
(b) Request for appropriate temporary relief. 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 may
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 to seek such temporary
relief is final and may not be appealed to the Authority.
(c) General Counsel requests to the Authority. When a complaint
issues and the Authority approves the General Counsel's request to seek
appropriate temporary relief (including a restraining order) under 5
U.S.C. 7123(d), the General Counsel may 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. Temporary relief will be sought
if the record establishes probable cause that an unfair labor practice
is being committed. Temporary relief will not be sought if it will
interfere with the ability of the agency to carry out its essential
functions.
(d) Actions subsequent to obtaining appropriate temporary relief.
The General Counsel informs the district court which granted temporary
relief pursuant to 5 U.S.C. 7123(d) whenever an Administrative Law
Judge recommends dismissal of the complaint, in whole or in part.
Sec. 2423.11 Determination not to issue complaint; review of action by
the Regional Director.
(a) Opportunity to withdraw a charge. 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.
(b) Dismissal letter. If the Charging Party does not withdraw the
charge within a reasonable period of time, the Regional Director may
dismiss the charge and provide the parties with a written statement of
the reasons for not issuing a complaint.
(c) Appeal of a dismissal letter. The Charging Party may obtain
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.
(d) Extension of time. The Charging Party may file a request, in
writing, for an extension of time to file an appeal, which shall be
received by the General Counsel not later than 5 days before the date
the appeal is due. A Charging Party shall serve a copy of the request
for an extension of time on the Regional Director.
(e) Grounds for granting an appeal. The General Counsel may grant
an appeal when the appeal establishes at least one of the following
grounds:
(1) The Regional Director's decision did not consider material
facts that would have resulted in issuance of complaint;
(2) The Regional Director's decision is based on a material fact
that is clearly erroneous;
(3) The Regional Director's decision is based on an incorrect
statement of the applicable rule of law;
(4) There is no Authority precedent on the legal issue in the case;
or
(5) The manner in which the Region conducted the investigation has
resulted in prejudicial error.
(f) General Counsel action. The General Counsel may deny the appeal
of the Regional Director's refusal to issue a complaint, or may grant
the appeal and remand the case to the Regional Director to take further
action. The General Counsel's decision on the appeal states the grounds
for denying or granting the appeal and is served on all the parties.
The decision of the General Counsel is final.
(g) Reconsideration. After the General Counsel issues a final
decision, the Charging Party may move for reconsideration of the final
decision if it can establish extraordinary
[[Page 45019]]
circumstances in its moving papers. The motion shall be filed within 10
days after service of the General Counsel's final decision. A motion
for reconsideration shall state with particularity the extraordinary
circumstances claimed and shall be supported by appropriate citations.
Sec. 2423.12 Settlement of unfair labor practice charges after a
Regional Director determination to issue a complaint but prior to
issuance of a complaint.
(a) Bilateral informal settlement agreement. Prior to issuing a
complaint, the Regional Director may afford the Charging Party and the
Charged Party a reasonable period of time to enter into an informal
settlement agreement to be approved by the Regional Director. When a
Charged Party complies with the terms of an informal settlement
agreement approved by the Regional Director, no further action is taken
in the case. If the Charged Party fails to perform its obligations
under the approved informal settlement agreement, the Regional Director
may institute further proceedings.
(b) Unilateral informal settlement agreement. If the Charging Party
elects not to become a party to an informal settlement agreement which
the Regional Director concludes effectuates the policies of the Federal
Service Labor-Management Relations Statute, the agreement may be
between the Charged Party and the Regional Director. The Regional
Director issues a letter stating the grounds for approving the
settlement agreement and declining to issue a complaint. The Charging
Party may obtain review of the Regional Director's action by filing an
appeal with the General Counsel in accordance with Sec. 2423.11(c) and
(d). The General Counsel takes action on the appeal as set forth in
Sec. 2423.11(f) and (g).
Secs. 2423.13-2423.19 [Reserved]
PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS
5. The authority citation for part 2429 continues to read as
follows:
Authority: 5 U.S.C. 7134.
6. 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; except for unfair labor practice charges filed in accordance with
Sec. 2423.6 of this subchapter. 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 subpoenas; and other similar
matters; except for supporting evidence and documents submitted
pursuant to Secs. 2423.4 and 2423.6 of this subchapter, may be filed by
facsimile transmission, provided that the entire individual filing by
the party does not exceed 10 pages in total length, with normal margins
and font sizes.
* * * * *
Dated: August 19, 1998.
Joseph Swerdzewski,
General Counsel, Federal Labor Relations Authority.
[FR Doc. 98-22645 Filed 8-21-98; 8:45 am]
BILLING CODE 6727-01-P