[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]


 ========================================================================
 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  

[[Page 45013]]


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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.

-----------------------------------------------------------------------

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:

----------------------------------------------------------------------------------------------------------------
              Office                    Location of meeting                Date                     Time        
----------------------------------------------------------------------------------------------------------------
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.                                                            
----------------------------------------------------------------------------------------------------------------

    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