TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL
OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND
FEDERAL SERVICE IMPASSES PANEL
PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS
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.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
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 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.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
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.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
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.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
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.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
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.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
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 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 pre-hearing disclosure requirements
in Sec. 2423.23.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
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.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
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.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
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 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.
Subpart A--Filing, Investigating, Resolving, and Acting on
Charges
Secs. 2423.13-2423.19 [Reserved]
Subpart B--Post Complaint, Pre-hearing Procedures
Sec. 2423.20 Issuance and contents of the complaint; answer to
the complaint;amendments; role of Office of Administrative Law
Judges.
(a) Complaint. Whenever formal proceedings are deemed
necessary, the Regional Director shall file and serve, in
accordance with Sec. 2429.12 of this subchapter, a complaint
with the Office of Administrative Law Judges. The decision to
issue a complaint shall not be subject to review. Any complaint
may be withdrawn by the Regional Director prior to the hearing.
The complaint shall set forth:
(1) Notice of the charge;
(2) The basis for jurisdiction;
(3) The facts alleged to constitute an unfair labor practice;
(4) The particular sections of 5 U.S.C., chapter 71 and
the rules and regulations involved;
(5) Notice of the date, time, and place that a hearing
will take place before an Administrative Law Judge; and
(6) A brief statement explaining the nature of the hearing.
(b) Answer. Within 20 days after the date of service of the
complaint, but in any event, prior to the beginning of the
hearing, the Respondent shall file and serve, in accordance with
part 2429 of this subchapter, an answer with the Office of
Administrative Law Judges. The answer shall admit, deny, or
explain each allegation of the complaint. If the Respondent has
no knowledge of an allegation or insufficient information as to
its truthfulness, the answer shall so state. Absent a showing of
good cause to the contrary, failure to file an answer or respond
to any allegation shall constitute an admission. Motions to
extend the filing deadline shall be filed in accordance with
Sec. 2423.21.
(c) Amendments. The Regional Director may amend the
complaint at any time before the answer is filed. The Respondent
then has 20 days from the date of service of the amended
complaint to file an answer with the Office of Administrative
Law Judges. Prior to the beginning of the hearing, the answer
may be amended by the Respondent within 20 days after the answer
is filed. Thereafter, any requests to amend the complaint or
answer must be made by motion to the Office of Administrative
Law Judges.
(d) Office of Administrative Law Judges. Pleadings, motions,
conferences, hearings, and other matters throughout as specified
in subparts B, C, and D of this part shall be administered by
the Office of Administrative Law Judges, as appropriate. The
Chief Administrative Law Judge, or any Administrative Law Judge
designated by the Chief Administrative Law Judge, shall
administer any matters properly submitted to the Office of
Administrative Law Judges. Throughout subparts B, C, and D of
this part, ``Administrative Law Judge'' or ``Judge'' refers to
the Chief Administrative Law Judge or his or her designee.
Subpart B--Post Complaint, Pre-hearing Procedures
Sec. 2423.21 Motions procedure.
(a) General requirements. All motions, except those made
during a pre-hearing conference or hearing, shall be in writing.
Motions for an extension of time, postponement of a hearing, or
any other procedural ruling shall include a statement of the
position of the other parties on the motion. All written motions
and responses in subparts B, C, or D of this part shall satisfy
the filing and service requirements of part 2429 of this
subchapter.
(b) Motions made to the Administrative Law Judge. Pre-hearing
motions and motions made at the hearing shall be filed
with the Administrative Law Judge. Unless otherwise specified in
subparts B or C of this part, or otherwise directed or approved
by the Administrative Law Judge:
(1) Pre-hearing motions shall be filed at least 10 days
prior to the hearing, and responses shall be filed within 5 days
after the date of service of the motion;
(2) Responses to motions made during the hearing shall
be filed prior to the close of hearing;
(3) Posthearing motions shall be filed within 10 days
after the date the hearing closes, and responses shall be filed
within 5 days after the date of service of the motion; and
(4) Motions to correct the transcript shall be filed
with the Administrative Law Judge within 10 days after receipt
of the transcript, and responses shall be filed within 5 days
after the date of service of the motion.
(c) Post-transmission motions. After the case has been
transmitted to the Authority, motions shall be filed with the
Authority. Responses shall be filed within 5 days after the date
of service of the motion.
(d) Interlocutory appeals. Motions for an interlocutory
appeal of any ruling and responses shall be filed in accordance
with this section and Sec. 2423.31(c).
Subpart B--Post Complaint, Pre-hearing Procedures
Sec. 2423.22 Intervenors.
Motions for permission to intervene and responses shall be
filed in accordance with Sec. 2423.21. Such motions shall be
granted upon a showing that the outcome of the proceeding is
likely to directly affect the movant's rights or duties.
Intervenors may participate only: on the issues determined by
the Administrative Law Judge to affect them; and to the extent
permitted by the Judge. Denial of such motions may be appealed
pursuant to Sec. 2423.21(d).
Subpart B--Post Complaint, Pre-hearing Procedures
Sec. 2423.23 Pre-hearing disclosure.
Unless otherwise directed or approved by the Judge, the
parties shall exchange, in accordance with the service
requirements of Sec. 2429.27(b) of this subchapter, the
following items at least 14 days prior to the hearing:
(a) Witnesses. Proposed witness lists, including a brief
synopsis of the expected testimony of each witness;
(b) Documents. Copies of documents, with an index, proposed
to be offered into evidence; and
(c) Theories. A brief statement of the theory of the case,
including relief sought, and any and all defenses to the
allegations in the complaint.
Subpart B--Post Complaint, Pre-hearing Procedures
Sec. 2423.24 Powers and duties of the Administrative Law Judge
during pre-hearing proceedings.
(a) Pre-hearing procedures. The Administrative Law Judge
shall regulate the course and scheduling of pre-hearing matters,
including pre-hearing orders, conferences, disclosure, motions,
and subpoena requests.
(b) Changing date, time, or place of hearing. After issuance
of the complaint or any pre-hearing order, the Administrative
Law Judge may, in the Judge's discretion or upon motion by any
party through the motions procedure in Sec. 2423.21, change the
date, time, or place of the hearing.
(c) Pre-hearing order.
(1) The Administrative Law Judge may, in the Judge's
discretion or upon motion by any party through the motions
procedure in Sec. 2423.21, issue a pre-hearing order confirming
or changing:
(i) The date, time, or place of the hearing;
(ii) The schedule for pre-hearing disclosure of
witness lists and documents intended to be offered into evidence
at the hearing;
(iii) The date for submission of procedural and
substantive motions;
(iv) The date, time, and place of the pre-hearing
conference; and
(v) Any other matter pertaining to pre-hearing or
hearing procedures.
(2) The pre-hearing order shall be served in accordance
with Sec. 2429.12 of this subchapter.
(d) Pre-hearing conferences. The Administrative Law Judge
shall conduct one or more pre-hearing conferences, either by
telephone or in person, at least 7 days prior to the hearing
date, unless the Administrative Law Judge determines that a pre-
hearing conference would serve no purpose and no party has moved
for a pre-hearing conference in accordance with Sec. 2423.21. If
a pre-hearing conference is held, all parties must participate
in the pre-hearing conference and be prepared to discuss,
narrow, and resolve the issues set forth in the complaint and
answer, as well as any pre-hearing disclosure matters or
disputes. When necessary, the Administrative Law Judge shall
prepare and file for the record a written summary of actions
taken at the conference. Summaries of the conference shall be
served on all parties in accordance with Sec. 2429.12 of this
subchapter. The following may also be considered at the pre-
hearing conference:
(1) Settlement of the case, either by the Judge conducting
the pre-hearing conference or pursuant to Sec. 2423.25;
(2) Admissions of fact, disclosure of contents and
authenticity of documents, and stipulations of fact;
(3) Objections to the introduction of evidence at the
hearing, including oral or written testimony, documents, papers,
exhibits, or other submissions proposed by a party;
(4) Subpoena requests or petitions to revoke subpoenas;
(5) Any matters subject to official notice;
(6) Outstanding motions; or
(7) Any other matter that may expedite the hearing or aid
in the disposition of the case.
(e) Sanctions. The Administrative Law Judge may, in the
Judge's discretion or upon motion by any party through the
motions procedure in Sec. 2423.21, impose sanctions upon the
parties as necessary and appropriate to ensure that a party's
failure to fully comply with subpart B or C of this part is not
condoned. Such authority includes, but is not limited to, the
power to:
(1) Prohibit a party who fails to comply with any
requirement of subpart B or C of this part from, as appropriate,
introducing evidence, calling witnesses, raising objections to
the introduction of evidence or testimony of witnesses at the
hearing, presenting a specific theory of violation, seeking
certain relief, or relying upon a particular defense.
(2) Refuse to consider any submission that is not filed
in compliance with subparts B or C of this part.
Subpart B--Post Complaint, Pre-hearing Procedures
Sec. 2423.25 Post complaint, pre-hearing settlements.
(a) Informal and formal settlements. Post complaint
settlements may be either informal or formal.
(1) Informal settlement agreements provide for withdrawal
of the complaint by the Regional Director and are not subject to
approval by or an order of the Authority. If the Respondent
fails to perform its obligations under the informal settlement
agreement, the Regional Director may reinstitute formal
proceedings consistent with this
subpart.
Authority, and include the parties' agreement to waive their
right to a hearing and acknowledgment that the Authority may
issue an order requiring the Respondent to take action
appropriate to the terms of the settlement. The formal
settlement agreement shall also contain the Respondent's consent
to the Authority's application for the entry of a decree by an
appropriate federal court enforcing the Authority's order.
(b) Informal settlement procedure. If the Charging Party and
the Respondent enter into an informal settlement agreement that
is accepted by the Regional Director, the Regional Director
shall withdraw the complaint and approve the informal settlement
agreement. If the Charging Party fails or refuses to become a
party to an informal settlement agreement offered by the
Respondent, and the Regional Director concludes that the offered
settlement will effectuate the policies of the Federal Service
Labor-Management Relations Statute, the Regional Director shall
enter into the agreement with the Respondent and shall withdraw
the complaint. The Charging Party then may obtain a review of
the Regional Director's action by filing an appeal with the
General Counsel as provided in subpart A of this part.
(c) Formal settlement procedure. If the Charging Party and
the Respondent enter into a formal settlement agreement that is
accepted by the Regional Director, the Regional Director shall
withdraw the complaint upon approval of the formal settlement
agreement by the Authority. If the Charging Party fails or
refuses to become a party to a formal settlement agreement
offered by the Respondent, and the Regional Director concludes
that the offered settlement will effectuate the policies of the
Federal Service Labor-Management Relations Statute, the
agreement shall be between the Respondent and the Regional
Director. The formal settlement agreement together with the
Charging Party's objections, if any, shall be submitted to the
Authority for approval. The Authority may approve a formal
settlement agreement upon a sufficient showing that it will
effectuate the policies of the Federal Service Labor-Management
Relations Statute.
(d) Settlement judge program. The Administrative Law Judge,
in the Judge's discretion or upon the request of any party, may
assign a judge or other appropriate official, who shall be other
than the hearing judge unless otherwise mutually agreed to by
the parties, to conduct negotiations for settlement.
(1) The settlement official shall convene and preside
over settlement conferences by telephone or in person.
(2) The settlement official may require that the representative
for each party be present at settlement conferences and that the
parties or agents with full settlement authority be present or
available by telephone.
(3) The settlement official shall not discuss any aspect
of the case with the hearing judge.
(4) No evidence regarding statements, conduct, offers of
settlement, and concessions of the parties made in proceedings
before the settlement official shall be admissible in any
proceeding before the Administrative Law Judge or Authority,
except by stipulation of the parties.
Subpart B--Post Complaint, Pre-hearing Procedures
Sec. 2423.26 Stipulations of fact submissions.
(a) General. When all parties agree that no material issue
of fact exists, the parties may jointly submit a motion to the
Administrative Law Judge or Authority requesting consideration
of the matter based upon stipulations of fact. Briefs of the
parties are required and must be submitted within 30 days of the
joint motion. Upon receipt of the briefs, such motions shall be
ruled upon expeditiously.
(b) Stipulations to the Administrative Law Judge. Where the
stipulation adequately addresses the appropriate material facts,
the Administrative Law Judge may grant the motion and decide the
case through stipulation.
(c) Stipulations to the Authority. Where the stipulation
provides an adequate basis for application of established
precedent and a decision by the Administrative Law Judge would
not assist in the resolution of the case, or in unusual
circumstances, the Authority may grant the motion and decide the
case through stipulation.
(d) Decision based on stipulation. Where the motion is granted,
the Authority will adjudicate the case and determine whether the
parties have met their respective burdens based on the stipulation
and the briefs.
Subpart B--Post Complaint, Pre-hearing Procedures
Sec. 2423.27 Summary judgment motions.
(a) Motions. Any party may move for a summary judgment in
its favor on any of the issues pleaded. Unless otherwise
approved by the Administrative Law Judge, such motion shall be
made no later than 10 days prior to the hearing. The motion
shall demonstrate that there is no genuine issue of material
fact and that the moving party is entitled to a judgment as a
matter of law. Such motions shall be supported by documents,
affidavits, applicable precedent, or other appropriate materials.
(b) Responses. Responses must be filed within 5 days after
the date of service of the motion. Responses may not rest upon
mere allegations or denials but must show, by documents, affidavits,
applicable precedent, or other appropriate materials, that there
is a genuine issue to be determined at the hearing.
(c) Decision. If all issues are decided by summary judgment, no
hearing will be held and the Administrative Law Judge shall prepare
a decision in accordance with Sec. 2423.34. If summary judgment is
denied, or if partial summary judgment is granted, the Administrative
Law Judge shall issue an opinion and order, subject to interlocutory
appeal as provided in Sec. 2423.31(c) of this subchapter, and the
hearing shall proceed as necessary.
Subpart B--Post Complaint, Pre-hearing Procedures
Sec. 2423.28 Subpoenas.
(a) When necessary. Where the parties are in agreement that
the appearance of witnesses or the production of documents is
necessary, and such witnesses agree to appear, no subpoena need
be sought.
(b) Requests for subpoenas. A request for a subpoena by any
person, as defined in 5 U.S.C. 7103(a)(1), shall be in writing
and filed with the Office of Administrative Law Judges not less
than 10 days prior to the hearing, or with the Administrative
Law Judge during the hearing. Requests for subpoenas made less
than 10 days prior to the hearing shall be granted on sufficient
explanation of why the request was not timely filed.
(c) Subpoena procedures. The Office of Administrative Law
Judges, or any other employee of the Authority designated by the
Authority, as appropriate, shall furnish the requester the
subpoenas sought, provided the request is timely made. Requests
for subpoenas may be made ex parte. Completion of the specific
information in the subpoena and the service of the subpoena are
the responsibility of the party on whose behalf the subpoena was
issued.
(d) Service of subpoena. A subpoena may be served by any
person who is at least 18 years old and who is not a party to
the proceeding. The person who served the subpoena must certify
that he or she did so:
(1) By delivering it to the witness in person,
(2) By registered or certified mail, or
(3) By delivering the subpoena to a responsible person
(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 party on whose behalf the subpoena was
issued.
(e)(1) Petition to revoke subpoena. Any person served with a
subpoena who does not intend to comply shall, within 5 days
after the date of service of the subpoena upon such person,
petition in writing to revoke the subpoena. A copy of any
petition to revoke a subpoena shall be served on the party on
whose behalf the subpoena was issued. Such petition to revoke,
if made prior to the hearing, and a written statement of
service, shall be filed with the Office of Administrative Law
Judges for ruling. A petition to revoke a subpoena filed during
the hearing, and a written statement of service, shall be filed
with the Administrative Law Judge.
(2) The Administrative Law Judge, or any other employee
of the Authority designated by the Authority, as appropriate,
shall revoke the subpoena if the person or evidence, the
production of which is required, is not material and relevant to
the matters under investigation or in question in the
proceedings, or the subpoena does not describe with sufficient
particularity the evidence the production of which is required,
or if for any other reason sufficient in law the subpoena is
invalid. The Administrative Law Judge, or any other employee of
the Authority designated by the Authority, as appropriate, shall
state the procedural or other ground for the ruling on the
petition to revoke. The petition to revoke, any answer thereto,
and any ruling thereon shall not become part of the official
record except upon the request of the party aggrieved by the
ruling.
(f) Failure to comply. Upon the failure of any person to
comply with a subpoena issued and upon the request of the party
on whose behalf the subpoena was issued, the Solicitor of the
Authority shall institute proceedings on behalf of such party in
the appropriate district court for the enforcement thereof,
unless to do so would be inconsistent with law and the Federal
Service Labor-Management Relations Statute.
Subpart C--Hearing Procedures
Sec. 2423.30 General rules.
(a) Open hearing. The hearing shall be open to the public
unless otherwise ordered by the Administrative Law Judge.
(b) Administrative Procedure Act. The hearing shall, to the
extent practicable, be conducted in accordance with 5 U.S.C.
554-557, and other applicable provisions of the Administrative
Procedure Act.
(c) Rights of parties. A party shall have the right to
appear at any hearing in person, by counsel, or by other
representative; to examine and cross-examine witnesses; to
introduce into the record documentary or other relevant
evidence; and to submit rebuttal evidence, except that the
participation of any party shall be limited to the extent
prescribed by the Administrative Law Judge.
(d) Objections. Objections are oral or written complaints
concerning the conduct of a hearing. Any objection not raised to
the Administrative Law Judge shall be deemed waived.
(e) Oral argument. Any party shall be entitled, upon
request, to a reasonable period prior to the close of the
hearing for oral argument, which shall be included in the
official transcript of the hearing.
(f) Official transcript. An official reporter shall make the
only official transcript of such proceedings. Copies of the
transcript may be examined in the appropriate Regional Office
during normal working hours. Parties desiring a copy of the
transcript shall make arrangements for a copy with the official
hearing reporter.
Subpart C--Hearing Procedures
Sec. 2423.31 Powers and duties of the Administrative Law Judge
at the hearing.
(a) Conduct of hearing. The Administrative Law Judge shall
conduct the hearing in a fair, impartial, and judicial manner,
taking action as needed to avoid unnecessary delay and maintain
order during the proceedings. The Administrative Law Judge may
take any action necessary to schedule, conduct, continue,
control, and regulate the hearing, including ruling on motions
and taking official notice of material facts when appropriate.
No provision of these regulations shall be construed to limit
the powers of the Administrative Law Judge provided by 5 U.S.C.
556, 557, and other applicable provisions of the Administrative
Procedure Act.
(b) Evidence. The Administrative Law Judge shall receive
evidence and inquire fully into the relevant and material facts
concerning the matters that are the subject of the hearing. The
Administrative Law Judge may exclude any evidence that is
immaterial, irrelevant, unduly repetitious, or customarily
privileged. Rules of evidence shall not be strictly followed.
(c) Interlocutory appeals. Motions for an interlocutory
appeal shall be filed in writing with the Administrative Law
Judge within 5 days after the date of the contested ruling. The
motion shall state why interlocutory review is appropriate, and
why the Authority should modify or reverse the contested ruling.
(1) The Judge shall grant the motion and certify the
contested ruling to the Authority if:
(i) The ruling involves an important question of law
or policy about which there is substantial ground for difference
of opinion; and
(ii) Immediate review will materially advance completion
of the proceeding, or the denial of immediate review will cause undue
harm to a party or the public.
(2) If the motion is granted, the Judge or Authority may
stay the hearing during the pendency of the appeal. If the motion
is denied, exceptions to the contested ruling may be filed in
accordance with Sec. 2423.40 of this subchapter after the Judge
issues a decision and recommended order in the case.
(d) Bench decisions. Upon joint motion of the parties, the
Administrative Law Judge may issue an oral decision at the close
of the hearing when, in the Judge's discretion, the nature of
the case so warrants. By so moving, the parties waive their
right to file post-hearing briefs with the Administrative Law
Judge, pursuant to Sec. 2423.33. If the decision is announced
orally, it shall satisfy the requirements of Sec. 2423.34(a)(1)-
(5) and a copy thereof, excerpted from the transcript, together
with any supplementary matter the judge may deem necessary to
complete the decision, shall be transmitted to the Authority, in
accordance with Sec. 2423.34(b), and furnished to the parties in
accordance with Sec. 2429.12 of this subchapter.
(e) Settlements after the opening of the hearing. As set
forth in Sec. 2423.25(a), settlements may be either informal or
formal.
(1) Informal settlement procedure: Judge's approval of
withdrawal. If the Charging Party and the Respondent enter into
an informal settlement agreement that is accepted by the
Regional Director, the Regional Director may request the
Administrative Law Judge for permission to withdraw the
complaint and, having been granted such permission, shall
withdraw the complaint and approve the informal settlement
between the Charging Party and Respondent. If the Charging Party
fails or refuses to become a party to an informal settlement
agreement offered by the Respondent, and the Regional Director
concludes that the offered settlement will effectuate the
policies of the Federal Service Labor-Management Relations
Statute, the Regional Director shall enter into the agreement
with the Respondent and shall, if granted permission by the
Administrative Law Judge, withdraw the complaint. The Charging
Party then may obtain a review of the Regional Director's
decision as provided in subpart A of this part.
(2) Formal settlement procedure: Judge's approval of
settlement. If the Charging Party and the Respondent enter into
a formal settlement agreement that is accepted by the Regional
Director, the Regional Director may request the Administrative
Law Judge to approve such formal settlement agreement, and upon
such approval, to transmit the agreement to the Authority for
approval. If the Charging Party fails or refuses to become a
party to a formal settlement agreement offered by the
Respondent, and the Regional Director concludes that the offered
settlement will effectuate the policies of the Federal Service
Labor-Management Relations Statute, the agreement shall be
between the Respondent and the Regional Director. After the
Charging Party is given an opportunity to state on the record or
in writing the reasons for opposing the formal settlement, the
Regional Director may request the Administrative Law Judge to
approve such formal settlement agreement, and upon such
approval, to transmit the agreement to the Authority for
approval.
Subpart C--Hearing Procedures
Sec. 2423.32 Burden of proof before the Administrative Law Judge.
The General Counsel shall present the evidence in support of
the complaint and have the burden of proving the allegations of
the complaint by a preponderance of the evidence. The Respondent
shall have the burden of proving any affirmative defenses that
it raises to the allegations in the complaint.
Subpart C--Hearing Procedures
Sec. 2423.33 Posthearing briefs.
Except when bench decisions are issued pursuant to Sec.
2423.31(d), posthearing briefs may be filed with the
Administrative Law Judge within a time period set by the Judge,
not to exceed 30 days from the close of the hearing, unless
otherwise directed by the judge, and shall satisfy the filing
and service requirements of part 2429 of this subchapter. Reply
briefs shall not be filed absent permission of the Judge.
Motions to extend the filing deadline or for permission to file
a reply brief shall be filed in accordance with Sec. 2423.21.
Subpart C--Hearing Procedures
Secs. 2423.35-2423.39 [Reserved]
Subpart D--Post-Transmission and Exceptions to Authority Procedures
Sec. 2423.40 Exceptions; oppositions and cross-exceptions;
oppositions to cross-exceptions; waiver.
(a) Exceptions. Any exceptions to the Administrative Law
Judge's decision must be filed with the Authority within 25 days
after the date of service of the Judge's decision. Exceptions
shall satisfy the filing and service requirements of part 2429
of this subchapter. Exceptions shall consist of the following:
(1) The specific findings, conclusions, determinations,
rulings, or recommendations being challenged; the grounds relied
upon; and the relief sought.
(2) Supporting arguments, which shall set forth, in
order: all relevant facts with specific citations to the record;
the issues to be addressed; and a separate argument for each
issue, which shall include a discussion of applicable law.
Attachments to briefs shall be separately paginated and indexed
as necessary.
(3) Exceptions containing 25 or more pages shall include
a table of contents and a table of legal authorities cited.
(b) Oppositions and cross-exceptions. Unless otherwise
directed or approved by the Authority, oppositions to
exceptions, cross-exceptions, and oppositions to cross-
exceptions may be filed with the Authority within 20 days after
the date of service of the exceptions or cross-exceptions,
respectively. Oppositions shall state the specific exceptions
being opposed. Oppositions and cross-exceptions shall be subject
to the same requirements as exceptions set out in paragraph (a)
of this section.
(c) Reply briefs. Reply briefs shall not be filed absent prior
permission of the Authority.
(d) Waiver. Any exception not specifically argued shall be deemed
to have been waived.
Subpart D--Post-Transmission and Exceptions to Authority Procedures
Sec. 2423.41 Action by the Authority; compliance with Authority
decisions and orders.
(a) Authority decision; no exceptions filed. In the absence
of the filing of exceptions within the time limits established
in Sec. 2423.40, the findings, conclusions, and recommendations
in the decision of the Administrative Law Judge shall, without
precedential significance, become the findings, conclusions,
decision and order of the Authority, and all objections and
exceptions to the rulings and decision of the Administrative Law
Judge shall be deemed waived for all purposes. Failure to comply
with any filing requirement established in Sec. 2423.40 may
result in the information furnished being disregarded.
(b) Authority decision; exceptions filed. Whenever exceptions
are filed in accordance with Sec. 2423.40, the Authority shall
issue a decision affirming or reversing, in whole or in part, the
decision of the Administrative Law Judge or disposing of the matter
as is otherwise deemed appropriate.
(c) Authority's order. Upon finding a violation, the
Authority shall, in accordance with 5 U.S.C. 7118(a)(7), issue
an order directing the violator, as appropriate, to cease and
desist from any unfair labor practice, or to take any other
action to effectuate the purposes of the Federal Service Labor-
Management Relations Statute. With regard to employees covered
by 3 U.S.C. 431, upon finding a violation, the Authority's order
may not include an order of reinstatement, in accordance with 3
U.S.C. 431(a).
(d) Dismissal. Upon finding no violation, the Authority
shall dismiss the complaint.
(e) Report of compliance. After the Authority issues an
order, the Respondent shall, within the time specified in the
order, provide to the appropriate Regional Director a report
regarding what compliance actions have been taken. Upon
determining that the Respondent has not complied with the
Authority's order, the Regional Director shall refer the case to
the Authority for enforcement or take other appropriate action.
Subpart D--Post-Transmission and Exceptions to Authority Procedures
Secs. 2423.42
Subpart D--Post-Transmission and Exceptions to Authority Procedures
Secs. 2423.43-2423.49 [Reserved]
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