[Federal Register Volume 63, Number 229 (Monday, November 30, 1998)]
[Rules and Regulations]
[Pages 65638-65645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31763]



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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2423


Unfair Labor Practice Proceedings

AGENCY: Office of the General Counsel, Federal Labor Relations 
Authority.

ACTION: Final rule.

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SUMMARY: The General Counsel of the Federal Labor Relations Authority 
(FLRA) revises the regulations regarding the prevention, resolution, 
and investigation of unfair labor practice (ULP) disputes (part 2423, 
subpart A). The purpose of the revisions is to facilitate dispute 
resolution and to simplify, clarify, and improve the processing of ULP 
charges. Implementation of the 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 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. The regulations are applicable to any 
charge pending or filed after January 1, 1999.

EFFECTIVE DATE: January 1, 1999.

FOR FURTHER INFORMATION CONTACT: David L. Feder, Deputy General 
Counsel, at the address listed above or by telephone at (202) 482-6680, 
ext. 203.

SUPPLEMENTARY INFORMATION:

Background

    On August 24, 1998, the Office of the General Counsel (OGC) of the 
FLRA published proposed 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, as well as to the meaning 
of terms as used in this subchapter located at part 2421, and to 
related miscellaneous and general requirements located at part 2429 (63 
FR 45013) (August 24, 1998). These revisions are part of the FLRA's 
initiative to facilitate dispute resolution and to simplify, clarify, 
and improve the processing of ULP charges. For the sake of clarity, 
with respect to the substance of the revisions proposed for parts 2421 
and 2429, those revisions have been incorporated, where appropriate, in 
subpart A of part 2423. Further, the general provision regarding dates 
of applicability of part 2423, which was Sec. 2423.1, is now found 
prior to subpart A as Sec. 2423.0. The respective revisions are 
discussed below in the section-by-section analysis.
    Concurrent with issuing the proposed rule, the General Counsel 
invited comment on the proposed rule in one of two ways: By convening a 
series of meetings held in each of the seven Regional Office cities as 
well as the OGC Headquarters in Washington DC, and by offering the 
public an opportunity to submit written comments. All comments, whether 
expressed orally at one of the meetings, or submitted in writing, have 
been considered prior to publishing the final rule, although all 
comments are not specifically addressed below.

Sectional Analyses

    Sectional analyses of the revisions to Part 2423--Unfair Labor 
Practice Proceedings are as follows:

Part 2423--Unfair Labor Practice Proceedings

Section 2423.0

    This newly-created section incorporates and amends Sec. 2423.1 of 
the current regulations. Specifically, this section is amended to 
clarify that Subpart A of the regulations is applicable to any charge 
pending or filed after January 1, 1999. The provision regarding 
applicability of this part to any complaint filed on or after October 
1, 1997 remains unchanged.

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

Section 2423.1

    Numerous commenters responded favorably to the regulatory revision. 
One commenter stated that the revisions merely codify and emphasize the 
dispute resolution efforts that Regional Office agents routinely 
initiate.
    Two commenters suggested retaining the 15-day delay before a 
Regional Office begins processing a charge because the parties may wish 
to resolve any ULP dispute without outside intervention or might prefer 
to use another third party neutral to provide such services. The final 
regulation deletes the 15-day delay requirement because the parties are 
always free to communicate with each other to arrange for any 
assistance, either through the efforts of Regional Office staff, or 
through other outside assistance, prior or subsequent to filing a 
charge. Regional Office representatives routinely assist parties in 
resolving their dispute as part of the investigation. Thus, there is no 
need to require a 15-day delay before beginning to process a ULP 
charge. However, to further accommodate the interest raised by these 
commenters, if an outside facilitator is assisting the parties in 
resolving the subject matter of a pending ULP charge, the parties may 
jointly request that the Regional Director defer the initiation of an 
investigation for a reasonable period of time.
    One commenter suggested adding a provision which clarifies that the 
statutory time limits for filing a ULP charge are not tolled during the 
time that the parties are attempting to resolve the dispute. This 
suggestion has been incorporated in the final regulation because it is 
necessary that parties consider the statutory time limit, which is set 
forth at 5 U.S.C. 7118(a)(4), in determining whether to engage in 
dispute resolution before a ULP charge is filed. The provision is 
inserted as the last sentence of paragraph (a).
    Another commenter suggested that there be a presumption in favor of 
providing the services upon request. The OGC's public Intervention 
Policy currently provides criteria and principles for Regional Offices 
to follow in determining whether to offer these services. This Policy 
will be incorporated into an Unfair Labor Practice Casehandling Manual 
(ULP Manual) that will be issued and made public in the spring of 1999.
    A minor editorial modification has been made to paragraph (b) for 
clarity purposes.

Section 2423.2

    There was almost unanimous agreement among the commenters that the 
provision of Alternative Dispute Resolution (ADR) Services promotes the 
purposes and policies underlying the Statute. In this regard, 
experience has shown that by providing these services to parties: Their 
labor-management relationships are improved and enhanced; ULP disputes 
are avoided; and, the parties are better able to resolve ULP disputes 
among themselves. A desired by-product of the provision of ADR services 
has been a reduction in the filing of ULP charges. Paragraph (a) has 
been modified to reflect that these ADR services, delivered by the OGC, 
are part of the FLRA-wide Collaboration and Alternative Dispute 
Resolution Program.
    Several commenters suggested inserting a requirement to notify the 
national or parent organization when an ADR service is to be provided 
at a local

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facility, particularly where a nationwide bargaining unit is involved. 
Parties engaged in ADR services delivered by the OGC are free to notify 
their national or parent organization. However, to accommodate the 
interest raised by these commenters, before undertaking to provide an 
ADR service, Regional Office staff may inquire whether notification of 
the parties' national or parent organization is desired.
    Another commenter recommended that the ADR process be made 
mandatory upon the request of one of the parties. Experience has shown 
that the success and/or effectiveness of the provision of ADR services 
depends upon the parties voluntarily requesting or agreeing to partake 
in the process. Paragraph (b) is clarified to state that the parties 
may jointly request, or agree to, the provision of an ADR service.

Section 2423.3

    No comments were received concerning the proposed rule. New 
paragraphs (b) and (c) have been added to incorporate the definitions 
for ``Charging Party'' and ``Charged Party'' that were initially 
proposed as definitions in proposed new Secs. 2421.23 and 2421.24 of 
part 2421.

Section 2423.4

    The majority of the comments concerning the proposed rule 
recommended retaining the requirement that the charge state the 
section(s) and paragraph(s) of the Statute alleged to have been 
violated. These commenters stated that preserving this requirement will 
help charged parties to better understand the basis of the charge. 
Based upon comments received and discussion at the meetings, the OGC 
has reconsidered the proposed rule and has decided to retain the 
requirement which is set forth in the final rule at paragraph (a)(5).
    Several comments suggested that the charge form be amended to 
provide space for the charging party to indicate whether it has 
attempted to meet with the charged party to resolve the ULP dispute 
before the charge was filed and to ask whether the charging party is 
willing to attempt to resolve the charge with or without the assistance 
of the Regional Office. These matters are routinely considered by the 
Regional Office in their initial conversations with the parties in 
considering whether the provision of ADR services would be beneficial 
in any given case. Since Regional Office staff routinely make these 
inquiries, and the parties may communicate with each other prior to 
filing a charge, there is no need to amend the charge form.
    Many commenters expressed concern regarding the requirement that 
supporting evidence and documents be submitted with the charge. These 
commenters stated, for various reasons, that it is sometimes difficult 
to gather all of the supporting evidence at the time a charge is filed. 
This requirement, which is set forth at paragraph (e) is, in relevant 
part, the same as the regulatory requirement that has always existed. 
The new regulation merely explains the requirement by listing the types 
of supporting evidence and documents that are routinely provided by 
charging parties. It is necessary to submit supporting evidence with 
the charge so that the agent to whom an investigation is assigned is 
able to fully understand the basis of the charge and to prepare to talk 
with the parties, which is the first step in the investigation process. 
This regulation does not preclude parties from submitting additional 
evidence and information during the course of the investigation, as it 
becomes available. A minor edit also has been made to this paragraph 
for clarity purposes.
    The final regulation contains a new paragraph (c) concerning 
Statement of Service requirements which had been proposed as the second 
sentence of paragraph (b). Other minor editorial clarifications have 
been made to the final regulation.

Section 2423.5

    One comment received suggested that once the Authority revises part 
2424 of the regulations concerning negotiability proceedings, the 
General Counsel should make a corresponding revision concerning the 
availability of the ULP process to resolve certain duty to bargain 
issues. As the matter concerning related ULP and negotiability 
proceedings is being addressed by the Authority in its final 
regulations in part 2424, there is no reason to address the matter in 
subpart A of part 2423. The Regions will continue to follow Sec. 2424.5 
until the effective date of a new rule promulgated by the Authority. 
Moreover, the deletion of any provision addressing negotiability 
matters from subpart A of part 2423 has no impact on the availability 
of the ULP process to a charging party to resolve allegations that a 
charged party failed to fulfill a statutory bargaining obligation and 
committed a ULP.

Section 2423.6

    Almost all of the comments on this section were favorable and 
pertained to the use of facsimile transmission to file a charge. 
Several commenters expressed concern regarding verification of receipt 
of a charge filed by facsimile transmission. This concern has been 
addressed by clarifying in paragraph (c) that a ``charging party 
assumes responsibility for receipt of a charge.''
    Two commenters questioned the proposed imposition of a 5-page 
limitation on those charges filed by facsimile transmission. One 
commenter inquired about the basis for the proposed limitation and 
another was concerned about practical problems that arise upon the 
imposition of a page limitation. The final regulation has been changed 
to contain a 2-page limitation for those charges filed by facsimile. 
After reviewing the proposed regulation, the OGC has concluded that in 
order to expedite the inception of the investigatory process, charging 
parties must present their factual allegations supporting the charge in 
a succinct and organized manner. This may be accomplished in 2 pages. 
The final regulation also clarifies that a charging party may not file 
a charge by electronic mail and that supporting evidence and documents 
shall be filed in person, by commercial delivery, first-class mail, or 
certified mail. Recognizing that at times, supporting evidence and 
other documents may be voluminous, the regulation provides that all 
such documents may not be filed by facsimile transmission. Other minor 
editorial revisions have been made to this section to clarify that 
parties are aware that a charge may now be filed by facsimile 
transmission.

Section 2423.7

    One commenter and others who favor the use of facilitation as an 
effective means to resolve disputes in some circumstances nevertheless 
expressed concern that there are other circumstances that may require 
enforcement of the Statute through issuance of a formal complaint. The 
OGC agrees that not every dispute is an appropriate candidate for the 
alternative case processing procedure. Regional staff will apply 
criteria and principles in determining whether to offer an alternative 
case processing procedure, upon joint request, to the parties. These 
criteria and principles currently are contained in the OGC's public 
Intervention Policy and will be incorporated into the public ULP 
Manual. The intent underlying the revision of the regulations is not to 
accord lesser priority to the General Counsel's essential prosecutorial 
role in seeking enforcement of the Statute through traditional means, 
but rather to recognize the use of an alternative case processing 
procedure and other ADR techniques as tools to assist parties in 
resolving their dispute.

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    Another commenter in favor of the alternative case processing 
procedure suggested that the process be mandatory upon the request of 
one of the parties. For the reasons discussed above concerning ADR 
services under Sec. 2423.2, the OGC has determined that a strictly 
voluntary process works best. For those reasons, paragraph (a) has been 
amended to clearly state that the parties must ``voluntarily'' agree to 
use the alternative case processing procedure.
    In addition, paragraph (b) has been clarified by substituting 
``shall'' for ``may'' in the last sentence. This revision is necessary 
to contrast the difference between the alternative case processing 
procedure and a traditional investigation. In the former, the regional 
agent facilitates a problem-solving process which does not, in any way, 
involve taking evidence or the parties' positions on the merits. 
Several commenters suggested that attempts to resolve the dispute 
should also occur during the investigation. This concern is 
specifically addressed in Sec. 2423.1(b) concerning resolving ULP 
disputes after filing a charge, where it is stated that a 
``representative of the appropriate Regional Office, as part of the 
investigation, may assist the parties in informally resolving their 
dispute.'' Only one other minor editorial modification has been made to 
this paragraph.
    The comments received regarding paragraph (c) concerned the last 
sentence. Several individuals recommended replacing ``may'' with 
``shall'' to indicate a mandatory requirement that another 
representative of the Regional Office will conduct an investigation in 
the event an alternative case processing procedure is unsuccessful. 
Another commenter suggested that the person who presides over the 
alternative case processing procedure is better situated to investigate 
the case, if necessary. Yet another commenter suggested that the word 
``shall'' be used with the caveat that the parties be allowed to waive 
the requirement that the same agent who facilitated the alternative 
case processing procedure shall not be the same person who investigates 
the merits of the charge. The last recommendation has been modified and 
adopted because it addresses the interests of the parties, as well as 
those of the Regional Director.
    An additional concern was raised about the potential for disclosure 
of information discussed during the alternative case processing 
procedure should the dispute not be resolved and a ULP investigation be 
necessary. No evidence pertaining to the alleged ULP violation will be 
obtained during the alternative case processing procedure. Moreover, 
the agent involved in working with the parties in the alternative case 
processing procedure will not be involved in any manner in the 
investigation and decision-making process of the ULP charge, unless the 
parties and the Regional Director agree otherwise. These safeguards 
ensure that the alternative case processing procedure will have no 
impact on the investigation, if deemed necessary.

Section 2423.8

    This section of the proposed regulations generated the most 
comments. Many commenters who favor the proposed regulation stated that 
it is useful to explain what specific actions are expected of a party 
during an investigation.
    Many other commenters expressed concern that the proposed 
regulation would upset the careful balance that currently exists 
between Regional Directors and charged parties. That is, under the 
regulation, commenters stated that Regional Directors will have access 
to all of the evidence whereas charged parties do not have access to 
the statements relied upon by the Regional Director unless and until 
after that person testifies at trial.
    Other concerns raised by commenters suggest that, among other 
things: (1) There is no statutory authority to order Federal 
supervisors and managers to give sworn testimony; (2) based on a vague 
charge, the Regional Director will insist that a charged party provide 
sworn statements; (3) the General Counsel should delete the reference 
to cooperation in the final regulations; (4) the Regional Director 
should be required to disclose exculpatory evidence to the charged 
party representative obtained during the course of an investigation; 
(5) the regulation provides the Regional Director with investigatory 
powers that exceed the current level of discovery afforded litigants 
before Administrative Law Judges under Sec. 2423.23; (6) a detailed 
explanation for expanding the General Counsel's investigatory authority 
should be given because the current procedures have worked well for 20 
years; and (7) that in exchange for charged party cooperation, the 
Regional Offices should disclose their case file prior to a decision on 
the merits. It further is suggested that unlike the private sector, 
where there is good reason to withhold the General Counsel's evidence 
due to the prospect of retaliation that may befall a charging party or 
neutral witness, retaliation should not be an issue in the Federal 
sector because a Federal employee has avenues of redress before several 
different agencies. The following discussion addresses these concerns.
    The role of a Regional Office investigator, in part, is to obtain 
the best possible relevant evidence for a Regional Director to be able 
to reach a proper disposition in each case. This is an OGC quality 
standard applicable to all investigations which is part of the OGC's 
current, public Quality of Investigations Policy, and which will be 
incorporated into the public ULP Manual. To this end, a regional agent 
must identify the questions to ask witnesses, and ask the parties to 
provide relevant documents from all potential sources. So that a 
complete record is developed, it is necessary that both the charging 
party and the charged party voluntarily cooperate during the 
investigation. None of the commenters have cited any legal authority 
which purportedly allows any Federal agency that has been charged with 
violating a Federal law, to refuse to cooperate with another Federal 
agency that has been charged by the Congress to initiate an 
investigation to determine if the alleged violation of law has 
occurred, and if so, to prosecute, absent settlement, the agency 
charged with violating the law.
    Current OGC practice protects a charged party's right to represent 
its agents. If a Regional Director deems it necessary to take the 
sworn/affirmed statement of a charged party witness, whether an agency 
or a union witness, the current OGC practice provides that all regional 
agents first contact the charged party representative to arrange to 
take the charged party witness' statement. No regional agent is 
authorized to directly initiate contact with any current agency 
manager/supervisor or union official who is an agent of a charged party 
agency or union unless authorized to do so by a charged party agency or 
union representative. Second, anytime it is necessary to take the 
statement of a charged party witness, the charged party has the right 
to have a representative present when the statement is given. These 
safeguards protect the interest of a charged party to represent its 
agents.
    If a charging party fails to cooperate in an investigation, after 
being afforded ample opportunity to do so, the charge will be dismissed 
for lack of cooperation, absent withdrawal. If a neutral entity or a 
charged party fails to cooperate in an investigation, after being 
afforded ample opportunity to do so, the final regulation provides that 
an investigatory subpoena may be issued and enforced.
    A new paragraph (c) has been added to the final regulation to 
incorporate a

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provision concerning investigatory subpoenas. This section is modeled 
after, and consistent with, the subpoena provision set forth at 
Sec. 2423.28 in subpart B of part 2423, which concerns post complaint 
and prehearing procedures. The authority for both of these sections is 
derived from section 7132 of the Statute. Under section 7132, the 
General Counsel, the Authority Members, and the Federal Service 
Impasses Panel have the same authority to issue and enforce subpoenas.
    Because charged parties are usually cooperative to the extent 
deemed necessary by the Region during an investigation, it is 
anticipated that only in rare situations will it be necessary for an 
investigatory subpoena to be issued. During the meetings, many 
commenters suggested that since these subpoenas will be used only on 
rare occasions, they should only be issued upon the approval of the 
General Counsel. To accommodate this interest, the final regulation 
provides that an investigatory subpoena will be issued only by the 
General Counsel, upon the recommendation of a Regional Director. 
Moreover, prior to the issuance of an investigatory subpoena, a charged 
party will be afforded ample opportunity to cooperate in the 
investigation before a Regional Director recommends to the General 
Counsel to issue an investigatory subpoena ``for the attendance and 
testimony of witnesses and the production of documentary or other 
evidence.'' Further, the Regional Directors will consider, among other 
things, the following factors before recommending the issuance of an 
investigatory subpoena: (1) Whether the evidence submitted by charging 
party and any neutral witnesses establishes a potential violation (if 
the Region has sufficient evidence for the Regional Director to decide 
the merits of the charge, it would not be necessary to require the 
charged party to produce additional evidence); (2) whether the evidence 
sought is relevant and material and is neither privileged, unduly 
repetitious nor unreasonably cumulative; (3) whether the evidence is 
necessary to decide a factual issue which must be resolved to determine 
whether or not a violation of the Statute has occurred, and that 
evidence is not otherwise available; (4) whether the evidence sought is 
not within the control of the charging party; (5) whether the evidence 
can be produced without an undue burden and is specific, narrowly 
tailored, and reasonable; and (6) the likelihood of compliance, and 
failing that, the prospect for successful enforcement of the subpoena. 
Once the General Counsel has determined to issue a subpoena, the 
investigative agent will once again contact the charged party 
representative and give the charged party one final opportunity to 
voluntarily cooperate with the investigation. The charged party will be 
informed that absent voluntary compliance, a subpoena will issue, and 
absent compliance with the subpoena, enforcement will be sought in an 
appropriate United States district court.
    Thus, it is expected that the use of an investigatory subpoena will 
occur only in rare cases. Parties should understand that its use will 
be infrequent and that it is not intended either as a substitute for, 
or to lessen, the charging party's burden of submitting evidence to 
support the underlying allegations of a charge.
    Consistent with Sec. 2423.28, under paragraph (c)(2), a provision 
for the revocation of an investigatory subpoena has been included, 
although not statutorily required under section 7132. Paragraph (c)(3) 
contains the applicable standards for ruling on a petition to revoke a 
subpoena. These standards are, with minor editorial modifications, the 
same as those set forth at paragraph (e)(1) of Sec. 2423.28. In 
addition, the regulation provides that any petition to revoke, and any 
ruling on the petition to revoke, shall become part of the official 
record if there is a hearing under subpart C of this part.
    Subsection (c)(4) addresses the situation where a charged party 
fails to comply with a subpoena issued by the General Counsel. In this 
situation, the General Counsel makes the determination whether to 
institute proceedings in the appropriate district court for the 
enforcement of the subpoena.
    The General Counsel's confidentiality policy reflected in paragraph 
(d) (previously paragraph (c) in the proposed rule), which is the same 
as stated in the proposed rule, has existed for many years and remains 
sound. Maintaining the confidentiality of individuals who submit 
statements and information during the course of an investigation and to 
protect against the disclosure of documents obtained during an 
investigation is essential. However, it bears noting that under the 
section of the Authority's revised post-complaint regulations published 
on July 31, 1997 (62 FR 40911), which specifically concerns new 
prehearing disclosure requirements (Sec. 2423.23), the OGC attorney is 
required to disclose to charged parties, among other things, the 
witnesses and documents on which the OGC attorney will rely to prove 
the General Counsel's case, should a complaint issue and, absent 
settlement, the case goes to hearing.

Section 2423.9

    No comments were received concerning this section.

Section 2423.10

    No comments were received concerning this section. Minor editorial 
modifications have been made to paragraphs (a), (b) and (c). One 
additional edit to proposed paragraph (c) has been made in the next-to-
last sentence. In this regard, to be consistent with the remainder of 
the paragraph, the word ``will'' has been changed to ``may.''

Section 2423.11

    Commenters submitted favorable responses to the proposed revisions 
in this section. Two commenters suggested that the charging party be 
required to serve a copy of an appeal of a Regional Director 
determination not to issue complaint on the charged party. This 
interest has been addressed by modifying paragraph (c) which requires 
the OGC to serve notice on the charged party that an appeal has been 
filed.
    Another commenter suggested adding the standards Regional Directors 
use to exercise prosecutorial discretion to this section. These 
standards are set forth in the OGC's public Prosecutorial Discretion 
Policy, which will be incorporated in the public ULP Manual.
    Other minor editorial modifications have been made to this section. 
For example, paragraphs (a) and (b) have been clarified to state that 
the Regional Director acts on behalf of the General Counsel when 
determining not to issue a complaint. Thus, a dismissal letter issued 
by a Regional Director, on behalf of the General Counsel, constitutes 
the ``written statement of reasons for not issuing a complaint'' as 
required by section 7118(a) of the Statute. Further, an appeal of a 
Regional Director's dismissal decision will only be granted on one of 
the specific grounds in paragraph (e). The review, therefore, is 
similar to the Authority's review of Regional Directors' decisions and 
orders in representation cases, and is not a de novo review. Upon an 
appeal, the appeal letter states the grounds listed in paragraph (e) 
for granting or denying the appeal.
    One other suggestion concerned clarification of paragraph (g) to 
state that the General Counsel's decision on reconsideration is final. 
This suggestion has been adopted. In addition, this paragraph has been 
changed to state that a motion for reconsideration shall be

[[Page 65642]]

filed within 10 days of the date on which the General Counsel's 
decision is postmarked. The provisions for filing an appeal and for 
filing a motion for reconsideration are governed by 5 CFR 2429.22.

Section 2423.12

    The only change made to this section appears in paragraph (b) which 
now clarifies that the Regional Director acts on behalf of the General 
Counsel in approving a unilateral settlement agreement.

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 
final rule will not have a significant 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 final 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 final rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
final 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 final rule contains no additional information collection or 
record keeping requirements under the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Part 2423

    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 revises 5 CFR part 2423 as 
follows:

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

    1. The authority citation for part 2423 continues to read as 
follows:

    Authority: 5 U.S.C. 7134.

    2. Section 2423.0 and subpart A of Part 2423 are revised to read as 
follows:

Sec.
2423.0  Applicability of this part.

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

2423.1  Resolution of unfair labor practice disputes prior to a 
Regional Director determination whether 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]


Sec. 2423.0  Applicability of this part

    This part is applicable to any charge of alleged unfair labor 
practices pending or filed with the Authority on or after January 1, 
1999, and any complaint filed on or after October 1, 1997.

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


Sec. 2423.1  Resolution of unfair labor practice disputes prior to a 
Regional Director determination whether 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 issues and 
their interests and in resolving the dispute. Attempts to resolve 
unfair labor practice disputes prior to filing an unfair labor practice 
charge do not toll the time limitations for filing a charge set forth 
at 5 U.S.C. 7118(a)(4).
    (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 
a determination on the merits of the charge 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 and implements the agency-wide Federal Labor 
Relations Authority Collaboration and Alternative Dispute Resolution 
Program 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 
jointly request, or agree to, the provision of the following services 
by the Office of the General Counsel:
    (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

[[Page 65643]]

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.

    (a) Filing 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.
    (b) Charging Party. Charging Party means the individual, labor 
organization, activity or agency filing an unfair labor practice charge 
with a Regional Director.
    (c) Charged Party. Charged Party means the activity, agency or 
labor organization charged with allegedly having engaged in, or 
engaging in, an unfair labor practice.


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, a statement of the section(s) and 
paragraph(s) of the Federal Service Labor-Management Relations Statute 
alleged to have been violated, and the date and place of occurrence of 
the particular acts; and
    (6) A statement 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;
    (iii) Involves a negotiability issue raised by the Charging Party 
in a petition pending before the Authority pursuant to part 2424 of 
this subchapter; or
    (iv) Has been the subject of any other administrative or judicial 
proceeding.
    (7) A statement describing the result or status of any proceeding 
identified in paragraph (a)(6) of this section.
    (b) Declaration of truth and statement of service. A charge shall 
be in writing and signed, and shall contain a declaration by the 
individual 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 individual's knowledge and belief.
    (c) Statement of service. A charge shall also contain a statement 
that the Charging Party served the charge on the Charged Party, and 
shall list the name, title and location of the individual served, and 
the method of service.
    (d) Self-contained document. A charge shall be a self-contained 
document describing the alleged unfair labor practice without a need to 
refer to supporting evidence documents submitted under paragraph (e) of 
this section.
    (e) Submitting supporting evidence and documents and identifying 
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 the 
Regional Director in person or by commercial delivery, first-class 
mail, or certified mail. Notwithstanding Sec. 2429.24(e) of this 
subchapter, a Charging Party also may file a charge by facsimile 
transmission if the charge does not exceed 2 pages. If filing by 
facsimile transmission, the Charging Party is not required to file an 
original copy of the charge with the Region. A Charging Party assumes 
responsibility for receipt of a charge. Supporting evidence and 
documents shall be submitted to the Regional Director in person, by 
commercial delivery, first-class mail, or certified mail, not by 
facsimile transmission. Charges shall not be filed by electronic mail.
    (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 
voluntarily agree, by facilitating a problem-solving approach, rather 
than initially investigating the particular facts and determining the 
merits of the charge.
    (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 positions on the merits of the charge shall 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 shall not be involved in any subsequent 
investigation on the merits of the charge, unless the parties and the 
Regional Director agree otherwise.


Sec. 2423.8  Investigation of charges.

    (a) Investigation. The Regional Director, on behalf of the General

[[Page 65644]]

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 shall 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) Investigatory subpoenas. If a person fails to cooperate with 
the Regional Director in the investigation of a charge, the General 
Counsel, upon recommendation of a Regional Director, may decide in 
appropriate circumstances to issue a subpoena under 5 U.S.C. 7132 for 
the attendance and testimony of witnesses and the production of 
documentary or other evidence. However, no subpoena shall be issued 
under this section which requires the disclosure of intramanagement 
guidance, advice, counsel or training within an agency or between an 
agency and the Office of Personnel Management.
    (1) A subpoena shall be served by any individual who is at least 18 
years old and who is not a party to the proceeding. The individual who 
served the subpoena must certify that he or she did so:
    (i) By delivering it to the witness in person;
    (ii) By registered or certified mail; or
    (iii) By delivering the subpoena to a responsible individual (named 
in the document certifying the delivery) at the residence or place of 
business (as appropriate) of the person for whom the subpoena was 
intended. The subpoena shall show on its face the name and address of 
the Regional Director and the General Counsel.
    (2) Any person served with a subpoena who does not intend to comply 
shall, within 5 days after the date of service of the subpoena upon 
such person, petition in writing to revoke the subpoena. A copy of any 
petition to revoke a subpoena shall be served on the General Counsel.
    (3) The General Counsel shall revoke the subpoena if the witness or 
evidence, the production of which is required, is not material and 
relevant to the matters under investigation or in question in the 
proceedings, or the subpoena does not describe with sufficient 
particularity the evidence the production of which is required, or if 
for any other reason sufficient in law the subpoena is invalid. The 
General Counsel shall state the procedural or other grounds for the 
ruling on the petition to revoke. The petition to revoke, and any 
ruling on the petition to revoke, shall become part of the official 
record if there is a hearing under subpart C of this part.
    (4) Upon the failure of any person to comply with a subpoena issued 
by the General Counsel, the General Counsel shall determine whether to 
institute proceedings in the appropriate district court for the 
enforcement of the subpoena. Enforcement shall not be sought if to do 
so would be inconsistent with law, including the Federal Service Labor-
Management Relations Statute.
    (d) 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 ensuring 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 any of 
the following actions, as appropriate:
    (1) Approve a request to withdraw a charge;
    (2) Refuse to issue a complaint;
    (3) Approve a written settlement agreement in accordance with the 
provisions of Sec. 2423.12;
    (4) Issue a complaint; or
    (5) Withdraw 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 appropriate 
temporary relief is final and shall 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 may be sought 
if it is just and proper and the record establishes probable cause that 
an unfair labor practice is being committed. Temporary relief shall not 
be sought if it would interfere with the ability of the agency to carry 
out its essential functions.
    (d) Actions subsequent to obtaining appropriate temporary relief. 
The General Counsel shall inform 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 upon the completion of an 
investigation under Sec. 2423.8, the Regional Director, on behalf of 
the General Counsel, determines that issuance of a complaint is not 
warranted because 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, 
on behalf of the General Counsel, 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

[[Page 65645]]

a complaint by filing an appeal with the General Counsel within 25 days 
after service of the Regional Director's decision. A Charging Party 
shall serve a copy of the appeal on the Regional Director. The Office 
of the General Counsel shall serve notice on the Charged Party that an 
appeal has been filed.
    (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 finding of 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 
listed in paragraph (e) of this section for denying or granting the 
appeal, and is served on all the parties. Absent a timely motion for 
reconsideration, 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 circumstances in its moving 
papers. The motion shall be filed within 10 days after the date on 
which the General Counsel's final decision is postmarked. A motion for 
reconsideration shall state with particularity the extraordinary 
circumstances claimed and shall be supported by appropriate citations. 
The decision of the General Counsel on a motion for reconsideration is 
final.


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, on behalf of the General Counsel, shall issue 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 
shall take action on the appeal as set forth in Sec. 2423.11(e)-(g).


Secs. 2423.13-2423.19  [Reserved]

    Dated: November 24, 1998.
Joseph Swerdzewski,
General Counsel, Federal Labor Relations Authority.
[FR Doc. 98-31763 Filed 11-27-98; 8:45 am]
BILLING CODE 6727-01-P