Title 29—Labor--Volume 1
PART 102—RULES AND REGULATIONS, SERIES 8
§ 102.1   Terms defined in Section 2 of the Act.
(a) Definition of terms. The terms person, employer, employee, representative, labor organization, commerce, affecting commerce, and unfair labor practice as used herein have the meanings set forth in Section 2 of the National Labor Relations Act, as amended by title I of the Labor Management Relations Act, 1947.
(b) Act, Board, and Board agent. The term Act means the National Labor Relations Act, as amended. The term Board means the National Labor Relations Board and must include any group of three or more Members designated pursuant to Section 3(b) of the Act. The term Board agent means any Member, agent, or agency of the Board, including its General Counsel.
(c) General Counsel. The term General Counsel means the General Counsel under Section 3(d) of the Act.
(d) Region and Subregion. The term Region means that part of the United States or any territory thereof fixed by the Board as a particular Region. The term Subregion means that area within a Region fixed by the Board as a particular Subregion.
(e) Regional Director, Officer-in-Charge, and Regional Attorney. The term Regional Director means the agent designated by the Board as the Regional Director for a particular Region, and also includes any agent designated by the Board as Officer-in-Charge of a Subregional office, but the Officer-in-Charge must have only such powers, duties, and functions appertaining to Regional Directors as have been duly delegated to such Officer-in-Charge. The term Regional Attorney means the attorney designated as Regional Attorney for a particular Region.
(f) Administrative Law Judge and Hearing Officer. The term Administrative Law Judge means the agent of the Board conducting the hearing in an unfair labor practice proceeding. The term Hearing Officer means the agent of the Board conducting the hearing in a proceeding under Section 9 or in a dispute proceeding under Section 10(k) of the Act.
(g) State. The term State includes the District of Columbia and all States, territories, and possessions of the United States.
(h) Party. The term party means the Regional Director in whose Region the proceeding is pending and any person named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any Board proceeding, including, without limitation, any person filing a charge or petition under the Act, any person named as Respondent, as employer, or as party to a contract in any proceeding under the Act, and any labor organization alleged to be dominated, assisted, or supported in violation of Section 8(a)(1) or 8(a)(2) of the Act; but nothing herein should be construed to prevent the Board or its designated agent from limiting any party to participate in the proceedings to the extent of the party's interest only.
(i) Business day. The term business day means days that Agency offices are open normal business operating hours, which is Monday through Friday, excluding Federal holidays. A list of Federal holidays can be found at www.opm.gov/policy-data-oversight/snow-dismissal-procedures/federal-holidays/.
§ 102.2   Time requirements for filings with the Agency.
(a) Time computation. In computing any period of time prescribed or allowed by these Rules, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it does not fall on a business day, in which event the period runs until the next Agency business day. When the period of time prescribed or allowed is less than 7 days, only business days are included in the computation. Except as otherwise provided, in computing the period of time for filing a responsive document, the designated period begins to run on the date the preceding document was required to be received by the Agency, even if the preceding document was filed prior to that date.
(b) Timeliness of filings. If there is a time limit for the filing of a motion, brief, exception, request for extension of time, or other paper in any proceeding, such document must be received by the Board or the officer or agent designated to receive such matter on or before the last day of the time limit for such filing or the last day of any extension of time that may have been granted. Non E-Filed documents must be received before the official closing time of the receiving office (see www.nlrb.gov setting forth the official business hours of the Agency's several offices). E-Filed documents must be received by 11:59 p.m. of the time zone of the receiving office. In construing this section of the Rules, the Board will accept as timely filed any document which is postmarked on the day before (or earlier than) the due date; documents which are postmarked on or after the due date are untimely. “Postmarking” must include timely depositing the document with a delivery service that will provide a record showing that the document was given to the delivery service in sufficient time for delivery by the due date, but in no event later than the day before the due date. However, the following documents must be received on or before the last day for filing:
(1) Charges filed pursuant to Section 10(b) of the Act (see also § 102.14).
(2) Applications for awards and fees and other expenses under the Equal Access to Justice Act.
(3) Petitions to revoke subpoenas.
(4) Requests for extensions of time to file any document for which such an extension may be granted.
(c) Extension of time to file. Except as otherwise provided, a request for an extension of time to file a document must be filed no later than the date on which the document is due. Requests for extensions of time filed within 3 days of the due date must be grounded upon circumstances not reasonably foreseeable in advance. Requests for extension of time must be in writing and must be served simultaneously on the other parties. Parties are encouraged to seek agreement from the other parties for the extension, and to indicate the other parties' position in the extension of time request. An opposition to a request for an extension of time should be filed as soon as possible following receipt of the request.
(d) Late-filed documents. (1) The following documents may be filed within a reasonable time after the time prescribed by these Rules only upon good cause shown based on excusable neglect and when no undue prejudice would result:
(i) In unfair labor practice proceedings, motions, exceptions, answers to a complaint or a backpay specification, and briefs; and
(ii) In representation proceedings, exceptions, requests for review, motions, briefs, and any responses to any of these documents.
(2) A party seeking to file such documents beyond the time prescribed by these Rules must file, along with the document, a motion that states the grounds relied on for requesting permission to file untimely. The specific facts relied on to support the motion must be set forth in affidavit form and sworn to by individuals with personal knowledge of the facts. The time for filing any document responding to the untimely document will not commence until the date a ruling issues accepting the untimely document. In addition, cross-exceptions are due within 14 days, or such further period as the Board may allow, from the date a ruling issues accepting the untimely filed documents.
§ 102.3   Date of service.
Where service is made by mail, private delivery service, or email, the date of service is the day when the document served is deposited in the United States mail, is deposited with a private delivery service that will provide a record showing the date the document was tendered to the delivery service, or is sent by email, as the case may be. Where service is made by personal delivery or facsimile, the date of service will be the date on which the document is received.
§ 102.4   Methods of service of process and papers by the Agency; proof of service.
(a) Method of service for certain Agency-issued documents. Complaints and compliance specifications (including accompanying notices of hearing, and amendments to either complaints or to compliance specifications), final orders of the Board in unfair labor practice cases and Administrative Law Judges' decisions must be served upon all parties personally, by registered or certified mail, by leaving a copy at the principal office or place of business of the person required to be served, by email as appropriate, or by any other method of service authorized by law.
(b) Service of subpoenas. Subpoenas must be served upon the recipient personally, by registered or certified mail, by leaving a copy at the principal office or place of business of the person required to be served, by private delivery service, or by any other method of service authorized by law.
(c) Service of other Agency-issued documents. Other documents may be served by the Agency by any of the foregoing methods as well as by regular mail, private delivery service, facsimile, or email.
(d) Proof of service. In the case of personal service, or delivery to a principal office or place of business, the verified return by the serving individual, setting forth the manner of such service, is proof of service. In the case of service by registered or certified mail, the return post office receipt is proof of service. However, these methods of proof of service are not exclusive; any sufficient proof may be relied upon to establish service.
(e) Service upon representatives of parties. Whenever these Rules require or permit the service of pleadings or other papers upon a party, a copy must be served on any attorney or other representative of the party who has entered a written appearance in the proceeding on behalf of the party. If a party is represented by more than one attorney or representative, service upon any one of such persons in addition to the party satisfies this requirement. Service by the Board or its agents of any documents upon any such attorney or other representative may be accomplished by any means of service permitted by these Rules, including regular mail.
§ 102.5   Filing and service of papers by parties: Form of papers; manner and proof of filing or service.
(a) Form of papers to be filed. All papers filed with the Board, General Counsel, Regional Director, Administrative Law Judge, or Hearing Officer must be typewritten or otherwise legibly duplicated on 8 1/2 by 11-inch plain white paper, and must have margins no less than one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there. Typeface that is single-spaced must not contain more than 10.5 characters per inch, and proportionally-spaced typeface must be 12 point or larger, for both text and footnotes. Condensed text is not permitted. The text must be double-spaced, but headings and footnotes may be single-spaced, and quotations more than two lines long may be indented and single-spaced. Case names must be italicized or underlined. Where any brief filed with the Board exceeds 20 pages, it must contain a subject index with page references and an alphabetical table of cases and other authorities cited.
(b) Requests to exceed the page limits. Requests for permission to exceed the page limits for documents filed with the Board must state the reasons for the requests. Unless otherwise specified, such requests must be filed not less than 10 days prior to the date the document is due.
(c) E-Filing with the Agency. Unless otherwise permitted under this section, all documents filed in cases before the Agency must be filed electronically (“E-Filed”) on the Agency's Web site ( www.nlrb.gov ) by following the instructions on the Web site. The Agency's Web site also contains certain forms that parties or other persons may use to prepare their documents for E-Filing. If the document being E-Filed is required to be served on another party to a proceeding, the other party must be served by email, if possible, or in accordance with paragraph (g) of this section. Unfair labor practice charges, petitions in representation proceedings, and showings of interest may be filed in paper format or E-Filed. A party who files other documents in paper format must accompany the filing with a statement explaining why the party does not have access to the means for filing electronically or why filing electronically would impose an undue burden. Notwithstanding any other provision in these Rules, if a document is filed electronically the filer need not also file a hard copy of the document, and only one copy of a document filed in hard copy should be filed. Documents may not be filed with the Agency via email without the prior approval of the receiving office.
(d) Filing with the Agency by Mail or Delivery. Documents to be filed with the Board are to be filed with the Office of the Executive Secretary in Washington, DC. Documents to be filed with the Regional Offices are to be filed with the Regional Office handling the case. Documents to be filed with the Division of Judges are to be filed with the Division office handling the matter.
(e) Filing by fax with the Agency. Only unfair labor practice charges, petitions in representation proceedings, objections to elections, and requests for extensions of time for filing documents will be accepted by the Agency if faxed to the appropriate office. Other documents may not be faxed. At the discretion of the receiving office, the person submitting a document by fax may be required simultaneously to file the original with the office by overnight delivery service. When filing a charge, a petition in a representation proceeding, or election objections by fax pursuant to this section, receipt of the faxed document by the Agency constitutes filing with the Agency. A failure to timely file or serve a document will not be excused on the basis of a claim that facsimile transmission could not be accomplished because the receiving machine was off-line or busy or unavailable for any other reason.
(f) Service. Unless otherwise specified, documents filed with the Agency must be simultaneously served on the other parties to the case including, as appropriate, the Regional Office in charge of the case. Service of documents by a party on other parties may be made personally, or by registered mail, certified mail, regular mail, email (unless otherwise provided for by these Rules), private delivery service, or by fax for documents of or under 25 pages in length. Service of documents by a party on other parties by any other means, including by fax for documents over 25 pages in length, is permitted only with the consent of the party being served. When a party does not have the ability to receive service by email or fax, or chooses not to accept service of a document longer than 25 pages by fax, the other party must be notified personally or by telephone of the substance of the filed document and a copy of the document must be served by personal service no later than the next day, by overnight delivery service, or by fax or email as appropriate. Unless otherwise specified elsewhere in these Rules, service on all parties must be made in the same manner as that used in filing the document with the Board, or in a more expeditious manner. When filing with the Board is done by hand, however, the other parties must be immediately notified of such action, followed by service of a copy in a manner designed to insure receipt by them by the close of the next business day. The provisions of this section apply to the General Counsel after a complaint has issued, just as they do to any other party, except to the extent that the provisions of § 102.4(a) provide otherwise.
(g) Proof of service. When service is made by registered or certified mail, the return post office receipt will be proof of service. When service is made by a private delivery service, the receipt from that service showing delivery will be proof of service. However, these methods of proof of service are not exclusive; any sufficient proof may be relied upon to establish service.
(h) Statement of service. The person or party filing a document with the Agency must simultaneously file a statement of service. Such statement must include the names of the parties served, the date and manner of service, and the location of service such as mailing address, fax number, or email address as appropriate. The Agency requires proof of service as defined in paragraph (g) of this section only if, subsequent to the receipt of the statement of service, a question is raised with respect to proper service. Failure to make proof of service does not affect the validity of the service.
(i) Failure to properly serve. Failure to comply with the requirements of this section relating to timeliness of service on other parties will be a basis for either:
(1) Rejecting the document; or
(2) Withholding or reconsidering any ruling on the subject matter raised by the document until after service has been made and the served party has had reasonable opportunity to respond.
§ 102.6   Notice to the Administrative Law Judge or Board of supplemental authority.
Pertinent and significant authorities that come to a party's attention after the party's submission to the Administrative Law Judge or the Board has been filed may be brought to the Judge's or the Board's attention by the party promptly filing a letter with the judge or the Board and simultaneously serving all other parties. The body of the letter may not exceed 350 words. A party may file and serve on all other parties a response that is similarly limited. In unfair labor practice cases, the response must be filed no later than 14 days after service of the letter. In representation cases, the response must be filed no later than 7 days after service of the letter. No extension of time will be granted to file the response.
§ 102.7   Signature on documents E-Filed with the Agency.
Documents filed with the Agency by E-Filing may contain an electronic signature of the filer which will have the same legal effect, validity, and enforceability as if signed manually. The term “electronic signature” means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the document.
§ 102.8   [Reserved]
§ 102.9   Who may file; withdrawal and dismissal.
Any person may file a charge alleging that any person has engaged in or is engaging in any unfair labor practice affecting commerce. The charge may be withdrawn, prior to the hearing, only with the consent of the Regional Director with whom such charge was filed; at the hearing and until the case has been transferred to the Board pursuant to § 102.45, upon motion, with the consent of the Administrative Law Judge designated to conduct the hearing; and after the case has been transferred to the Board pursuant to § 102.45, upon motion, with the consent of the Board. Upon withdrawal of any charge, any complaint based thereon will be dismissed by the Regional Director issuing the complaint, the Administrative Law Judge designated to conduct the hearing, or the Board.
§ 102.10   Where to file.
Except as provided in § 102.33, a charge must be filed with the Regional Director for the Region in which the alleged unfair labor practice has occurred or is occurring. A charge alleging that an unfair labor practice has occurred or is occurring in two or more Regions may be filed with the Regional Director for any of those Regions.
§ 102.11   Signature; sworn; declaration.
Charges must be in writing and signed, and either must be sworn to before a notary public, Board agent, or other person duly authorized by law to administer oaths and take acknowledgments or must contain a declaration by the person signing it, under the penalty of perjury that its contents are true and correct (see 28 U.S.C. 1746).
§ 102.12   Contents.
(a) A charge must contain the following:
(1) The full name and address of the person making the charge.
(2) If the charge is filed by a labor organization, the full name and address of any national or international labor organization of which it is an affiliate or constituent unit.
(3) The full name and address of the person against whom the charge is made (referred to as the Charged Party).
(4) A brief statement of the conduct constituting the alleged unfair labor practices affecting commerce.
(b) Attachments to charges are not permitted.
§ 102.13   [Reserved]
§ 102.14   Service of charge.
(a) Charging Party's obligation to serve; methods of service. Upon the filing of a charge, the Charging Party is responsible for the timely and proper service of a copy upon the person against whom such charge is made. Service may be made personally, or by registered mail, certified mail, regular mail, private delivery service, or facsimile. With the permission of the person receiving the charge, service may be made by email or by any other agreed-upon method.
(b) Service as courtesy by Regional Director. The Regional Director will, as a matter of courtesy, serve a copy of the charge on the charged party in person, or send it to the charged party by regular mail, private delivery service, email or facsimile transmission, in any manner provided for in Rules 4 or 5 of the Federal Rules of Civil Procedure, or in any other agreed-upon method. The Region will not be responsible for such service.
(c) Date of service of charge. In the case of service of a charge by mail or private delivery service, the date of service is the date of deposit with the post office or other carrier. In the case of delivery by email, the date of service is the date the email is sent. In the case of service by other methods, including hand delivery or facsimile transmission, the date of service is the date of receipt.
§ 102.15   When and by whom issued; contents; service.
After a charge has been filed, if it appears to the Regional Director that formal proceedings may be instituted, the Director will issue and serve on all parties a formal complaint in the Board's name stating the alleged unfair labor practices and containing a Notice of Hearing before an Administrative Law Judge at a fixed place and at a time not less than 14 days after the service of the complaint. The complaint will contain:
(a) A clear and concise statement of the facts upon which the Board asserts jurisdiction, and
(b) A clear and concise description of the acts which are claimed to constitute unfair labor practices, including, where known, the approximate dates and places of such acts and the names of Respondent's agents or other representatives who committed the acts.
§ 102.16   Hearing; change of date or place.
(a) Upon the Regional Director's own motion or upon proper cause shown by any other party, the Regional Director issuing the complaint may extend the hearing date or change the hearing place, except that the Regional Director's authority to extend the hearing date is limited to the following circumstances:
(1) Where all parties agree or no party objects to extension of the hearing date;
(2) Where a new charge or charges have been filed which, if meritorious, might be appropriate for consolidation with the pending complaint;
(3) Where negotiations which could lead to settlement of all or a portion of the complaint are in progress;
(4) Where issues related to the complaint are pending before the General Counsel's Division of Advice or Office of Appeals; or
(5) Where more than 21 days remain before the scheduled hearing date.
(b) In circumstances other than those set forth in paragraph (a) of this section, motions to reschedule the hearing may be filed with the Division of Judges in accordance with § 102.24(a). When a motion to reschedule has been granted, the Regional Director issuing the complaint retains the authority to order a new hearing date and the responsibility to make the necessary arrangements for conducting the hearing, including its location and the transcription of the proceedings.
§ 102.17   Amendment.
A complaint may be amended upon such terms as may be deemed just, prior to the hearing, by the Regional Director issuing the complaint; at the hearing and until the case has been transferred to the Board pursuant to § 102.45, upon motion, by the Administrative Law Judge designated to conduct the hearing; and after the case has been transferred to the Board pursuant to § 102.45, at any time prior to the issuance of an order based thereon, upon motion, by the Board.
§ 102.18   Withdrawal.
A complaint may be withdrawn before the hearing by the Regional Director on the Director's own motion.
§ 102.19   Appeal to the General Counsel from refusal to issue or reissue.
(a) If, after the charge has been filed, the Regional Director declines to issue a complaint or, having withdrawn a complaint pursuant to § 102.18, refuses to reissue it, the Director will so advise the parties in writing, accompanied by a simple statement of the procedural or other grounds for that action. The Charging Party may obtain a review of such action by filing the “Appeal Form” with the General Counsel in Washington, DC, and filing a copy of the “Appeal Form” with the Regional Director, within 14 days from the service of the notice of such refusal to issue or reissue by the Regional Director, except where a shorter period is provided by § 102.81. The Charging Party may also file a statement setting forth the facts and reasons upon which the appeal is based. If such a statement is timely filed, the separate “Appeal Form” need not be served. A request for extension of time to file an appeal must be in writing and be received by the General Counsel, and a copy of such request filed with the Regional Director, prior to the expiration of the filing period. Copies of the acknowledgment of the filing of an appeal and of any ruling on a request for an extension of time for filing of the appeal must be served on all parties. Consideration of an appeal untimely filed is within the discretion of the General Counsel upon good cause shown.
(b) Oral presentation in Washington, DC, of the appeal issues may be permitted by a party on written request made within 4 days after service of acknowledgement of the filing of an appeal. In the event such request is granted, the other parties must be notified and afforded, without additional request, a like opportunity at another appropriate time.
(c) The General Counsel may sustain the Regional Director's refusal to issue or reissue a complaint, stating the grounds of the affirmance, or may direct the Regional Director to take further action; the General Counsel's decision must be served on all the parties. A motion for reconsideration of the decision must be filed within 14 days of service of the decision, except as hereinafter provided, and must state with particularity the error requiring reconsideration. A motion for reconsideration based upon newly discovered evidence which has become available only since the decision on appeal must be filed promptly on discovery of such evidence. Motions for reconsideration of a decision previously reconsidered will not be entertained, except in unusual situations where the moving party can establish that new evidence has been discovered which could not have been discovered by diligent inquiry prior to the first reconsideration.
§ 102.20   Answer to complaint; time for filing; contents; allegations not denied deemed admitted.
The Respondent must, within 14 days from the service of the complaint, file an answer. The Respondent must specifically admit, deny, or explain each of the facts alleged in the complaint, unless the Respondent is without knowledge, in which case the Respondent must so state, such statement operating as a denial. All allegations in the complaint, if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed, unless the Respondent states in the answer that the Respondent is without knowledge, will be deemed to be admitted to be true and will be so found by the Board, unless good cause to the contrary is shown.
§ 102.21   Where to file; service upon the parties; form.
An original and four copies of the answer shall be filed with the Regional Director issuing the complaint. Immediately upon the filing of the answer, Respondent shall serve a copy thereof on the other parties. An answer of a party represented by counsel or non-attorney representative shall be signed by at least one such attorney or non-attorney representative of record in his/her individual name, whose address shall be stated. A party who is not represented by an attorney or non-attorney representative shall sign his/her answer and state his/her address. Except when otherwise specifically provided by rule or statute, an answer need not be verified or accompanied by affidavit. The signature of the attorney or non-attorney party representative constitutes a certificate by him/her that he/she has read the answer; that to the best of his/her knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If an answer is not signed or is signed with intent to defeat the purpose of this section, it may be stricken as sham and false and the action may proceed as though the answer had not been served. For a willful violation of this section an attorney or non-attorney party representative may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.
§ 102.22   Extension of time for filing.
Upon the Regional Director's own motion or upon proper cause shown by any other party, the Regional Director issuing the complaint may by written order extend the time within which the answer must be filed.
§ 102.23   Amendment.
The Respondent may amend its answer at any time prior to the hearing. During the hearing or subsequently, the Respondent may amend the answer in any case where the complaint has been amended, within such period as may be fixed by the Administrative Law Judge or the Board. Whether or not the complaint has been amended, the answer may, in the discretion of the Administrative Law Judge or the Board, upon motion, be amended upon such terms and within such periods as may be fixed by the Administrative Law Judge or the Board.
§ 102.24   Motions; where to file; contents; service on other parties; promptness in filing and response; default judgment procedures; summary judgment procedures.
(a) All motions under §§ 102.22 and 102.29 made prior to the hearing must be filed in writing with the Regional Director issuing the complaint. All motions for default judgment, summary judgment, or dismissal made prior to the hearing must be filed in writing with the Board pursuant to the provisions of § 102.50. All other motions made prior to the hearing, including motions to reschedule the hearing under circumstances other than those set forth in § 102.16(a), must be filed in writing with the Chief Administrative Law Judge, the Deputy Chief Administrative Law Judge, or an Associate Chief Administrative Law Judge, as the case may be. All motions made at the hearing must be made in writing to the Administrative Law Judge or stated orally on the record. All motions filed subsequent to the hearing, but before the transfer of the case to the Board pursuant to § 102.45, must be filed with the Administrative Law Judge, care of the Chief Administrative Law Judge, the Deputy Chief Administrative Law Judge, or an Associate Chief Administrative Law Judge, as the case may be. Motions must briefly state the order or relief applied for and the grounds therefor. All motions filed with a Regional Director or an Administrative Law Judge as set forth in this paragraph (a) must be filed together with an affidavit of service on the parties. All motions filed with the Board, including motions for default judgment, summary judgment, or dismissal, must be filed with the Executive Secretary of the Board in Washington, DC, together with an affidavit of service on the parties. Unless otherwise provided in this part, motions, oppositions, and replies must be filed promptly and within such time as not to delay the proceeding.
(b) All motions for summary judgment or dismissal must be filed with the Board no later than 28 days prior to the scheduled hearing. Where no hearing is scheduled, or where the hearing is scheduled less than 28 days after the date for filing an answer to the complaint or compliance specification, whichever is applicable, the motion must be filed promptly. Upon receipt of the motion, the Board may deny the motion or issue a Notice to Show Cause why the motion may not be granted. If a Notice to Show Cause is issued, the hearing, if scheduled, will normally be postponed indefinitely. If a party desires to file an opposition to the motion prior to issuance of the Notice to Show Cause to prevent postponement of the hearing, it may do so. However, any such opposition must be filed no later than 21 days prior to the hearing. If a Notice to Show Cause is issued, an opposing party may file a response notwithstanding any opposition it may have filed prior to issuance of the notice. The time for filing the response must be fixed in the Notice to Show Cause. Neither the opposition nor the response must be supported by affidavits or other documentary evidence showing that there is a genuine issue for hearing. The Board in its discretion may deny the motion where the motion itself fails to establish the absence of a genuine issue, or where the opposing party's pleadings, opposition and/or response indicate on their face that a genuine issue may exist. If the opposing party files no opposition or response, the Board may treat the motion as conceded, and default judgment, summary judgment, or dismissal, if appropriate, will be entered.
(c) A party that has filed a motion may file a reply to an opposition to its motion within 7 days of receipt of the opposition, but in the interest of administrative finality, further responses are not permitted except where there are special circumstances warranting leave to file such a response.
§ 102.25   Ruling on motions.
An Administrative Law Judge designated by the Chief Administrative Law Judge, the Deputy Chief Administrative Law Judge, or an Associate Chief Administrative Law Judge as the case may be, will rule on all prehearing motions (except as provided in §§ 102.16, 102.22, 102.29, and 102.50), and all such rulings and orders will be issued in writing and a copy served on each of the parties. The Administrative Law Judge designated to conduct the hearing will rule on all motions after opening of the hearing (except as provided in § 102.47), and any related orders, if announced at the hearing, will be stated orally on the record; in all other cases, the Administrative Law Judge will issue such rulings and orders in writing and must cause a copy to be served on each of the parties, or will make the ruling in the decision. Whenever the Administrative Law Judge has reserved ruling on any motion, and the proceeding is thereafter transferred to and continued before the Board pursuant to § 102.50, the Board must rule on such motion.
§ 102.26   Motions; rulings and orders part of the record; rulings not to be appealed directly to the Board without special permission; requests for special permission to appeal.
All motions, rulings, and orders will become a part of the record, except that rulings on motions to revoke subpoenas will become a part of the record only upon the request of the party aggrieved thereby as provided in § 102.31. Unless expressly authorized by the Rules and Regulations, rulings by the Regional Director or by the Administrative Law Judge on motions and/or by the Administrative Law Judge on objections, and related orders, may not be appealed directly to the Board except by special permission of the Board, but will be considered by the Board in reviewing the record if exception to the ruling or order is included in the statement of exceptions filed with the Board pursuant to § 102.46. Requests to the Board for special permission to appeal from a ruling of the Regional Director or of the Administrative Law Judge, together with the appeal from such ruling, must be filed in writing promptly and within such time as not to delay the proceeding, and must briefly state the reasons special permission may be granted and the grounds relied on for the appeal. The moving party must simultaneously serve a copy of the request for special permission and of the appeal on the other parties and, if the request involves a ruling by an Administrative Law Judge, on the Administrative Law Judge. Any statement in opposition or other response to the request and/or to the appeal must be filed within 7 days of receipt of the appeal, in writing, and must be served simultaneously on the other parties and on the Administrative Law Judge, if any. If the Board grants the request for special permission to appeal, it may proceed immediately to rule on the appeal.
§ 102.27   Review of granting of motion to dismiss entire complaint; reopening of the record.
If any motion in the nature of a motion to dismiss the complaint in its entirety is granted by the Administrative Law Judge before the filing of the Judge's decision, any party may obtain a review of such action by filing a request with the Board in Washington, DC, stating the grounds for review, and, immediately on such filing must serve a copy on the Regional Director and on the other parties. Unless such request for review is filed within 28 days from the date of the order of dismissal, the case will be closed.
§ 102.28   Filing of answer or other participation in proceedings not a waiver of rights.
The right to make motions or to make objections to rulings upon motions will not be deemed waived by the filing of an answer or by other participation in the proceedings before the Administrative Law Judge or the Board.
§ 102.29   Intervention; requisites; rulings on motions to intervene.
Any person desiring to intervene in any proceeding must file a motion in writing or, if made at the hearing, may move orally on the record, stating the grounds upon which such person claims an interest. Prior to the hearing, such a motion must be filed with the Regional Director issuing the complaint; during the hearing, such motion must be made to the Administrative Law Judge. Immediately upon filing a written motion, the moving party must serve a copy on the other parties. The Regional Director will rule upon all such motions filed prior to the hearing, and will serve a copy of the rulings on the other parties, or may refer the motion to the Administrative Law Judge for ruling. The Administrative Law Judge will rule upon all such motions made at the hearing or referred to the Judge by the Regional Director, in the manner set forth in § 102.25. The Regional Director or the Administrative Law Judge, as the case may be, may, by order, permit intervention in person, or by counsel or other representative, to such extent and upon such terms as may be deemed proper.
§ 102.30   Depositions; examination of witnesses.
Witnesses must be examined orally under oath at a hearing, except that for good cause shown after the issuance of a complaint, testimony may be taken by deposition.
(a) Applications to take depositions, including deposition testimony contemporaneously transmitted by videoconference, must be in writing and set forth the reasons why the depositions may be taken, the name, mailing address and email address (if available) of the witness, the matters concerning which it is expected the witness will testify, and the time and place proposed for taking the deposition, together with the name and mailing and email addresses of the person before whom it is desired that the deposition be taken (for the purposes of this section hereinafter referred to as the “officer”). Such application must be made to the Regional Director prior to the hearing, and to the Administrative Law Judge during and subsequent to the hearing but before transfer of the case to the Board pursuant to § 102.45 or § 102.50. Such application must be served on the Regional Director or the Administrative Law Judge, as the case may be, and on all other parties, not less than 7 days (when the deposition is to be taken within the continental United States) and 15 days (if the deposition is to be taken elsewhere) prior to the time when it is desired that the deposition be taken. The Regional Director or the Administrative Law Judge, as the case may be, will upon receipt of the application, if in the Regional Director's or Administrative Law Judge's discretion, good cause has been shown, make and serve on the parties an order specifying the name of the witness whose deposition is to be taken and the time, place, and designation of the officer before whom the witness is to testify, who may or may not be the same officer as that specified in the application. Such order will be served on all the other parties by the Regional Director or on all parties by the Administrative Law Judge.
(b) The deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held, including any Board agent authorized to administer oaths. If the examination is held in a foreign country, it may be taken before any secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States.
(c) At the time and place specified in the order, the officer designated to take the deposition will permit the witness to be examined and cross-examined under oath by all the parties appearing in person or by contemporaneous transmission through videoconference, and testimony shall be transcribed by the officer or under the officer's direction. All objections to questions or evidence will be deemed waived unless made at the examination. The officer will not have power to rule upon any objections but the objections will be noted in the deposition. The testimony must be subscribed by the witness to the satisfaction of the officer who will attach a certificate stating that the witness was duly sworn by the officer, that the deposition is a true record of the testimony and exhibits given by the witness, and that the officer is not of counsel or attorney to any of the parties nor interested in the event of the proceeding or investigation. If the deposition is not signed by the witness because the witness is ill, dead, cannot be found, or refuses to sign it, such fact will be included in the certificate of the officer and the deposition may then be used as fully as though signed. The officer will immediately deliver the transcript, together with the certificate, in person, by registered or certified mail, or by E-File to the Regional Director or Division of Judges' office handling the matter.
(d) The Administrative Law Judge will rule upon the admissibility of the deposition or any part of the deposition. A party may object to the admissibility of deposition testimony by videoconference on grounds that the taking of the deposition did not comply with appropriate safeguards as set forth in § 102.35(c), provided that the party opposing the admission of the deposition raised deficiencies in safeguards at the time of the deposition when corrections might have been made.
(e) All errors or irregularities in compliance with the provisions of this section will be deemed waived unless a motion to suppress the deposition in whole or part is made with reasonable promptness after such defect is or, with due diligence, might have been ascertained.
(f) If the parties so stipulate in writing, depositions may be taken before any person at any time or place, upon any notice and in any manner, and when so taken may be used like other depositions.
(g) The official record of the deposition testimony will be the official transcript prepared by the officer designated to transcribe the deposition testimony.
§ 102.31   Issuance of subpoenas; petitions to revoke subpoenas; rulings on claim of privilege against self-incrimination; subpoena enforcement proceedings; right to inspect or copy data.
(a) The Board or any Board Member will, on the written application of any party, issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including books, records, correspondence, electronic data, or documents, in their possession or under their control. The Executive Secretary has the authority to sign and issue any such subpoenas on behalf of the Board or any Board Member. Applications for subpoenas, if filed before the hearing opens, must be filed with the Regional Director. Applications for subpoenas filed during the hearing must be filed with the Administrative Law Judge. Either the Regional Director or the Administrative Law Judge, as the case may be, will grant the application on behalf of the Board or any Member. Applications for subpoenas may be made ex parte. The subpoena must show on its face the name and address of the party at whose request the subpoena was issued.
(b) Any person served with a subpoena, whether ad testificandum or duces tecum, if that person does not intend to comply with the subpoena, must, within 5 business days after the date of service of the subpoena, petition in writing to revoke the subpoena. The date of service for purposes of computing the time for filing a petition to revoke is the date the subpoena is received. All petitions to revoke subpoenas must be served on the party at whose request the subpoena was issued. A petition to revoke, if made prior to the hearing, must be filed with the Regional Director and the Regional Director will refer the petition to the Administrative Law Judge or the Board for ruling. Petitions to revoke subpoenas filed during the hearing must be filed with the Administrative Law Judge. Petitions to revoke subpoenas filed in response to a subpoena issued upon request of the Agency's Contempt, Compliance, and Special Litigation Branch must be filed with that Branch, which will refer the petition to the Board for ruling. Notice of the filing of petitions to revoke will be promptly given by the Regional Director, the Administrative Law Judge, or the Contempt, Compliance and Special Litigation Branch, as the case may be, to the party at whose request the subpoena was issued. The Administrative Law Judge or the Board, as the case may be, will revoke the subpoena if in their opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The Administrative Law Judge or the Board, as the case may be, will make a simple statement of procedural or other grounds for the ruling on the petition to revoke. The petition to revoke any opposition to the petition, response to the opposition, and ruling on the petition will not become part of the official record except upon the request of the party aggrieved by the ruling, at an appropriate time in a formal proceeding rather than at the investigative stage of the proceeding.
(c) Upon refusal of a witness to testify, the Board may, with the approval of the Attorney General of the United States, issue an order requiring any individual to give testimony or provide other information at any proceeding before the Board if, in the judgment of the Board:
(1) The testimony or other information from such individual may be necessary to the public interest; and
(2) Such individual has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination. Requests for the issuance of such an order by the Board may be made by any party. Prior to hearing, and after transfer of the proceeding to the Board, such requests must be made to the Board in Washington, DC, and the Board will take such action thereon as it deems appropriate. During the hearing, and thereafter while the proceeding is pending before the Administrative Law Judge, such requests must be made to the Administrative Law Judge. If the Administrative Law Judge denies the request, the ruling will be subject to appeal to the Board, in Washington, DC, in the manner and to the extent provided in § 102.26 with respect to rulings and orders by an Administrative Law Judge, except that requests for permission to appeal in this instance must be filed within 24 hours of the Administrative Law Judge's ruling. If no appeal is sought within such time, or if the appeal is denied, the ruling of the Administrative Law Judge becomes final and the denial becomes the ruling of the Board. If the Administrative Law Judge deems the request appropriate, the Judge will recommend that the Board seek the approval of the Attorney General for the issuance of the order, and the Board will take such action on the Administrative Law Judge's recommendation as it deems appropriate. Until the Board has issued the requested order, no individual who claims the privilege against self-incrimination will be required or permitted to testify or to give other information respecting the subject matter of the claim.
(d) Upon the failure of any person to comply with a subpoena issued upon the request of a private party, the General Counsel will, in the name of the Board but on relation of such private party, institute enforcement proceedings in the appropriate district court, unless in the judgment of the Board the enforcement of the subpoena would be inconsistent with law and with the policies of the Act. Neither the General Counsel nor the Board will be deemed thereby to have assumed responsibility for the effective prosecution of the same before the court.
(e) Persons compelled to submit data or evidence at a public proceeding are entitled to retain or, on payment of lawfully prescribed costs, to procure copies or transcripts of the data or evidence submitted by them. Persons compelled to submit data or evidence in the nonpublic investigative stages of proceedings may, for good cause, be limited by the Regional Director to inspection of the official transcript of their testimony, but must be entitled to make copies of documentary evidence or exhibits which they have produced.
§ 102.32   Payment of witness fees and mileage; fees of officer who transcribes deposition or video testimony.
Witnesses summoned before the Administrative Law Judge must be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken or who testify by videoconference and the officer who transcribes the testimony shall severally be entitled to the same fees as are paid for like services in the courts of the United States, and those fees shall be paid by the party at whose instance the deposition is taken.
§ 102.33   Transfer of charge and proceeding from Region to Region; consolidation of proceedings in same Region; severance.
(a) Whenever the General Counsel deems it necessary to effectuate the purposes of the Act or to avoid unnecessary costs or delay, a charge may be filed with the General Counsel in Washington, DC, or, at any time after a charge has been filed with a Regional Director, the General Counsel may order that such charge and any proceeding regarding the charge be:
(1) Transferred to and continued before the General Counsel for investigation or consolidation with any other proceeding which may have been instituted in a Regional Office or with the General Counsel; or
(2) Consolidated with any other proceeding which may have been instituted in the same region; or
(3) Transferred to and continued in any other Region for the purpose of investigation or consolidation with any proceeding which may have been instituted in or transferred to such other region; or
(4) Severed from any other proceeding with which it may have been consolidated pursuant to this section.
(b) The provisions of §§ 102.9 through 102.32 will, insofar as applicable, govern proceedings before the General Counsel, pursuant to this section, and the powers granted to Regional Directors in such provisions will, for the purpose of this section, be reserved to and exercised by the General Counsel. After the transfer of any charge and any proceeding which may have been instituted with respect thereto from one Region to another pursuant to this section, the provisions of this subpart will, insofar as possible, govern such charge and such proceeding as if the charge had originally been filed in the Region to which the transfer is made.
(c) The Regional Director may, prior to hearing, exercise the powers in paragraphs (a)(2) and (4) of this section with respect to proceedings pending in the Director's Region.
(d) Motions to consolidate or sever proceedings after issuance of complaint must be filed as provided in § 102.24 and ruled upon as provided in § 102.25, except that the Regional Director may consolidate or sever proceedings prior to hearing upon the Director's own motion. Rulings by the Administrative Law Judge upon motions to consolidate or sever may be appealed to the Board as provided in § 102.26.
§ 102.34   Who will conduct hearing; public unless otherwise ordered.
The hearing for the purpose of taking evidence upon a complaint will be conducted by an Administrative Law Judge designated by the Chief Administrative Law Judge, Deputy Chief Administrative Law Judge, or any Associate Chief Judge, as the case may be, unless the Board or any Board Member presides. At any time, an Administrative Law Judge may be designated to take the place of the Administrative Law Judge previously designated to conduct the hearing. Hearings will be public unless otherwise ordered by the Board or the Administrative Law Judge.
§ 102.35   Duties and powers of Administrative Law Judges; stipulations of cases to Administrative Law Judges or to the Board; assignment and powers of settlement judges.
(a) The Administrative Law Judge will inquire fully into the facts as to whether the Respondent has engaged in or is engaging in an unfair labor practice affecting commerce as set forth in the complaint or amended complaint. The Administrative Law Judge has authority, with respect to cases assigned to the Judge, between the time the Judge is designated and transfer of the case to the Board, subject to the Rules and Regulations of the Board and within its powers, to:
(1) Administer oaths and affirmations.
(2) Grant applications for subpoenas.
(3) Rule upon petitions to revoke subpoenas.
(4) Rule upon offers of proof and receive relevant evidence.
(5) Take or cause depositions to be taken whenever the ends of justice would be served.
(6) Regulate the course of the hearing and, if appropriate or necessary, to exclude persons or counsel from the hearing for contemptuous conduct and to strike all related testimony of witnesses refusing to answer any proper question.
(7) Hold conferences for the settlement or simplification of the issues by consent of the parties, but not to adjust cases.
(8) Dispose of procedural requests, motions, or similar matters, including motions referred to the Administrative Law Judge by the Regional Director and motions for default judgment, summary judgment, or to amend pleadings; also to dismiss complaints or portions thereof; to order hearings reopened; and, upon motion, to order proceedings consolidated or severed prior to issuance of Administrative Law Judge decisions.
(9) Approve stipulations, including stipulations of facts that waive a hearing and provide for a decision by the Administrative Law Judge. Alternatively, the parties may agree to waive a hearing and decision by an Administrative Law Judge and submit directly to the Executive Secretary a stipulation of facts, which, if approved, provides for a decision by the Board. A statement of the issues presented may be set forth in the stipulation of facts, and each party may also submit a short statement (no more than three pages) of its position on the issues. If the Administrative Law Judge (or the Board) approves the stipulation, the Judge (or the Board) will set a time for the filing of briefs. In proceedings before an Administrative Law Judge, no further briefs may be filed except by special leave of the Judge. In proceedings before the Board, answering briefs may be filed within 14 days, or such further period as the Board may allow, from the last date on which an initial brief may be filed. No further briefs may be filed except by special leave of the Board. At the conclusion of the briefing schedule, the Administrative Law Judge (or the Board) will decide the case or otherwise dispose of it.
(10) Make and file decisions, including bench decisions delivered within 72 hours after conclusion of oral argument, in conformity with Public Law 89-554, 5 U.S.C. 557.
(11) Call, examine, and cross-examine witnesses and to introduce into the record documentary or other evidence.
(12) Request the parties at any time during the hearing to state their respective positions concerning any issue in the case and/or supporting theory(ies).
(13) Take any other necessary action authorized by the Board's published Rules and Regulations.
(b) Upon the request of any party or of the Administrative Law Judge assigned to hear a case, or upon the Chief Judge, Deputy Chief Judge, or Associate Chief Judge's own motion, the Chief Judge, Deputy Chief Judge or an Associate Chief Judge may assign a Judge other than the trial judge to conduct settlement negotiations. In exercising this discretion, the Chief Judge, Deputy Chief Judge, or Associate Chief Judge making the assignment will consider, among other factors, whether there is reason to believe that resolution of the dispute is likely, the request for assignment of a settlement judge is made in good faith, and the assignment is otherwise feasible. However, no such assignment will be made absent the agreement of all parties to the use of this procedure.
(1) The settlement judge will convene and preside over conferences and settlement negotiations between the parties, assess the practicalities of a potential settlement, and report to the Chief Judge, Deputy Chief Judge, or Associate Chief Judge the status of settlement negotiations, recommending continuation or termination of the settlement negotiations. Where feasible, settlement conferences will be held in person.
(2) The settlement judge may require that the attorney or other representative for each party be present at settlement conferences and that the parties or agents with full settlement authority also be present or available by telephone.
(3) Participation of the settlement judge will terminate upon the order of the Chief Judge, Deputy Chief Judge, or Associate Chief Judges issued after consultation with the settlement judge. The conduct of settlement negotiations must not unduly delay the hearing.
(4) All discussions between the parties and the settlement judge will be confidential. The settlement judge must not discuss any aspect of the case with the trial judge, and no evidence regarding statements, conduct, offers of settlement, and concessions of the parties made in proceedings before the settlement judge will be admissible in any proceeding before the Board, except by stipulation of the parties. Documents disclosed in the settlement process may not be used in litigation unless voluntarily produced or obtained pursuant to subpoena.
(5) No decision of a Chief Judge, Deputy Chief Judge, or Associate Chief Judge concerning the assignment of a settlement judge or the termination of a settlement judge's assignment is appealable to the Board.
(6) Any settlement reached under the auspices of a settlement judge is subject to approval in accordance with the provisions of § 101.9 of the Board's Statements of Procedure.
(c) Upon a showing of good cause based on compelling circumstances, and under appropriate safeguards, the taking of video testimony by contemporaneous transmission from a different location may be permitted.
(1) Applications to obtain testimony by videoconference must be presented to the Administrative Law Judge in writing, and the requesting party must simultaneously serve notice of the application upon all parties to the hearing. The application must set forth the compelling circumstances for such testimony, the witness's name and address, the location where the video testimony will be held, the matter concerning which the witness is expected to testify, the conditions in place to protect the integrity of the testimony, the transmission safeguards, and the electronic address from which the video testimony will be transmitted. Such application and any opposition must be made promptly and within such time as not to delay the proceeding.
(2) Appropriate safeguards must ensure that the Administrative Law Judge has the ability to assess the witness's credibility and that the parties have a meaningful opportunity to examine and cross-examine the witness, and must include at a minimum measures that ensure that representatives of the parties have the opportunity to be present at the remote location, the judge, participants, and the reporter are able to hear the testimony and observe the witness, the camera view is adjustable to provide a close-up view of counsel and the witness and a panoramic view of the room, exhibits used in the witness's examination are exchanged in advance of the examination, and video technology assistance is available to assist with technical difficulties that arise during the examination. The Administrative Law Judge may also impose additional safeguards.
(3) The official record of the videoconference testimony will be the official transcript prepared by the officer designated to transcribe the testimony.
§ 102.36   Disqualification and unavailability of Administrative Law Judges.
(a) An Administrative Law Judge may withdraw from a proceeding because of a personal bias or for other disqualifying reasons. Any party may request the Administrative Law Judge, at any time following the Judge's designation and before filing of the Judge's decision, to withdraw on grounds of personal bias or disqualification, by filing with the Judge promptly upon the discovery of the alleged facts a timely affidavit setting forth in detail the matters alleged to constitute grounds for disqualification. If, in the Administrative Law Judge's opinion, the affidavit is filed with due diligence and is sufficient on its face, the Judge will promptly disqualify himself/herself and withdraw from the proceeding. If the Administrative Law Judge does not disqualify himself/herself and withdraw from the proceeding, the Judge must rule upon the record, stating the grounds for that ruling, and proceed with the hearing, or, if the hearing has closed, the Judge will proceed with issuance of the decision, and the provisions of § 102.26, with respect to review of rulings of Administrative Law Judges, will apply.
(b) If the Administrative Law Judge designated to conduct the hearing becomes unavailable to the Board after the hearing has been opened, the Chief Administrative Law Judge, Deputy Chief Administrative Law Judge, or an Associate Chief Administrative Law Judge, as the case may be, may designate another Administrative Law Judge for the purpose of further hearing or other appropriate action.
§ 102.37   [Reserved]
§ 102.38   Rights of parties.
Any party has the right to appear at the hearing in person, by counsel, or by other representative, to call, examine, and cross-examine witnesses, and to introduce into the record documentary or other evidence, except that the Administrative Law Judge may limit the participation of any party as appropriate. Documentary evidence must be submitted in duplicate for the record with a copy to each party.
§ 102.39   Rules of evidence controlling so far as practicable.
The hearing will, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to the Act of June 19, 1934 (U.S.C., title 28, Sections 723-B, 723-C).
§ 102.40   Stipulations of fact admissible.
Stipulations of fact may be introduced in evidence with respect to any issue.
§ 102.41   Objection to conduct of hearing; how made; objections not waived by further participation.
Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, may be stated orally or in writing, accompanied by a short statement of the grounds of such objection, and included in the record. No such objection will be deemed waived by further participation in the hearing.
§ 102.42   Filings of briefs and proposed findings with the Administrative Law Judge and oral argument at the hearing.
Any party is entitled, upon request, to oral argument, for a reasonable period at the close of the hearing. Oral argument and any presentation of proposed findings and conclusions will be included in the transcript of the hearing. In the discretion of the Administrative Law Judge, any party may, upon request made before the close of the hearing, file a brief or proposed findings and conclusions, or both, with the Administrative Law Judge, who may fix a reasonable time for such filing, but not in excess of 35 days from the close of the hearing. Requests for further extensions of time must be made to the Chief Administrative Law Judge, Deputy Chief Administrative Law Judge, or an Associate Chief Administrative Law Judge, as the case may be. Notice of the request for any extension must be immediately served on all other parties, and proof of service must be furnished. The brief or proposed findings and conclusions must be served on the other parties, and a statement of such service must be furnished. In any case in which the Administrative Law Judge believes that written briefs or proposed findings of fact and conclusions may not be necessary, the Judge must notify the parties at the opening of the hearing or as soon thereafter as practicable that the Judge may wish to hear oral argument in lieu of briefs.
§ 102.43   Continuance and adjournment.
In the Administrative Law Judge's discretion, the hearing may be continued from day to day, or adjourned to a later date or to a different place, by announcement at the hearing by the Administrative Law Judge, or by other appropriate notice.
§ 102.44   [Reserved]
§ 102.45   Administrative Law Judge's decision; contents of record; alternative dispute resolution program.
(a) Administrative Law Judge's decision. After a hearing for the purpose of taking evidence upon a complaint, the Administrative Law Judge will prepare a decision. The decision will contain findings of fact, conclusions of law, and the reasons or grounds for the findings and conclusions, and recommendations for the proper disposition of the case. If the Respondent is found to have engaged in the alleged unfair labor practices, the decision will also contain a recommendation for such affirmative action by the Respondent as will effectuate the policies of the Act. The Administrative Law Judge will file the decision with the Board. If the Judge delivers a bench decision, promptly upon receiving the transcript the Judge will certify the accuracy of the pages of the transcript containing the decision; file with the Board a certified copy of those pages, together with any supplementary matter the Judge may deem necessary to complete the decision; and serve a copy on each of the parties. Upon the filing of the decision, the Board will enter an order transferring the case to the Board, setting forth the date of the transfer and will serve on all the parties copies of the decision and the order. Service of the Administrative Law Judge's decision and of the order transferring the case to the Board is complete upon mailing.
(b) Contents of record. The charge upon which the complaint was issued and any amendments, the complaint and any amendments, notice of hearing, answer and any amendments, motions, rulings, orders, the transcript of the hearing, stipulations, exhibits, documentary evidence, and depositions, together with the Administrative Law Judge's decision and exceptions, and any cross-exceptions or answering briefs as provided in § 102.46, constitutes the record in the case.
(c) Alternative dispute resolution program. The Alternative Dispute Resolution (ADR) Program is available to parties with unfair labor practice or compliance cases pending before the Board at any stage subsequent to the initial issuance of an Administrative Law Judge's decision or any other process involving the transfer to the Board of such cases. Participation in the ADR Program is voluntary, and a party that enters the ADR Program may withdraw any time after the first meeting with the neutral. No party will be charged fees or expenses for using the ADR Program.
(1) The parties may request participation in the ADR Program by contacting the program director. Deadlines for filing pleadings with the Board will be stayed effective the date that the case enters the ADR Program. If the case is removed from the ADR Program, the time period for filing will begin to run and will consist of the time period that remained when the case entered the ADR Program. Notice will be provided to the parties of the date the case enters the ADR Program and the date it is removed from the ADR Program.
(2) A case may remain in the ADR Program for 28 days from the first settlement meeting or until the parties reach a settlement, whichever occurs first. A request for extension of the stay beyond the 28 days will be granted only with the approval and in the discretion of both the neutral and the program director upon a showing that such an extension is supported by good cause.
(3) Once the case enters the ADR Program, the program director will arrange for the appointment of a neutral to assist the parties in settling the case.
(4) The preferred method of conducting settlement conferences is to have the parties or their representatives attend in person, and therefore the neutral will make every reasonable effort to meet with the participants face-to-face at the parties' location. Settlement conferences by telephone or through videoconference may be held if the parties so desire.
(5) Parties may be represented by counsel at the conferences, but representation by counsel is not required. However, each party must have in attendance a representative who has the authority to bind the party to the terms of a settlement agreement.
(6) The neutral may ask the parties to submit pre-conference memos setting forth the issues in dispute, prior settlement efforts, and anything else that the parties would like to bring to the neutral's attention. A party's memo will be treated as a confidential submission unless the party that prepared the memo authorizes its release to the other parties.
(7) Settlement discussions held under the ADR Program will be confidential. All documents submitted to the neutral and statements made during the ADR proceedings, including proposed settlement terms, are for settlement purposes only and are confidential. However, evidence otherwise admissible or discoverable will not be rendered inadmissible or undiscoverable because of its use in the ADR proceedings. No evidence as to what transpired during the ADR proceedings will be admissible in any administrative or court proceeding except to the extent it is relevant to determining the existence or meaning of a settlement agreement. The parties and their representatives will not discuss with the press any matters concerning settlement positions communicated during the ADR proceedings except by express written permission of the other parties. There will be no communication between the ADR Program and the Board on specific cases submitted to the ADR Program, except for procedural information such as case name, number, timing of the process, and status.
(8) The neutral has no authority to impose a settlement. Settlement agreements are subject to approval by the Board in accordance with its existing procedures for approving settlements.
(9) No party will at any time or in any proceeding take the position that participation in the ADR Program resulted in the waiver of any legal rights related to the underlying claims in the case, except as set forth in any settlement agreement.
(10) Nothing in the ADR Program is intended to discourage or interfere with settlement negotiations that the parties wish to conduct outside the ADR Program.
§ 102.46   Exceptions and brief in support; answering briefs to exceptions; cross-exceptions and brief in support; answering briefs to cross-exceptions; reply briefs; failure to except; oral argument; filing requirements; amicus curiae briefs.
(a) Exceptions and brief in support. Within 28 days, or within such further period as the Board may allow, from the date of the service of the order transferring the case to the Board, pursuant to § 102.45, any party may (in accordance with Section 10(c) of the Act and §§ 102.2 through 102.5 and 102.7) file with the Board in Washington, DC, exceptions to the Administrative Law Judge's decision or to any other part of the record or proceedings (including rulings upon all motions or objections), together with a brief in support of the exceptions. The filing of exceptions and briefs is subject to the filing requirements of paragraph (h) of this section
(1) Exceptions. (i) Each exception must:
(A) Specify the questions of procedure, fact, law, or policy to which exception is taken;
(B) Identify that part of the Administrative Law Judge's decision to which exception is taken;
(C) Provide precise citations of the portions of the record relied on; and
(D) Concisely state the grounds for the exception. If a supporting brief is filed, the exceptions document must not contain any argument or citation of authorities in support of the exceptions; any argument and citation of authorities must be set forth only in the brief. If no supporting brief is filed, the exceptions document must also include the citation of authorities and argument in support of the exceptions, in which event the exceptions document is subject to the 50-page limit for briefs set forth in paragraph (h) of this section.
(ii) Any exception to a ruling, finding, conclusion, or recommendation which is not specifically urged will be deemed to have been waived. Any exception which fails to comply with the foregoing requirements may be disregarded.
(2) Brief in support of exceptions. Any brief in support of exceptions must contain only matter that is included within the scope of the exceptions and must contain, in the order indicated, the following:
(i) A clear and concise statement of the case containing all that is material to the consideration of the questions presented.
(ii) A specification of the questions involved and to be argued, together with a reference to the specific exceptions to which they relate.
(iii) The argument, presenting clearly the points of fact and law relied on in support of the position taken on each question, with specific page citations to the record and the legal or other material relied on.
(b) Answering briefs to exceptions. (1) Within 14 days, or such further period as the Board may allow, from the last date on which exceptions and any supporting brief may be filed, a party opposing the exceptions may file an answering brief to the exceptions, in accordance with the filing requirements of paragraph (h) of this section.
(2) The answering brief to the exceptions must be limited to the questions raised in the exceptions and in the brief in support. It must present clearly the points of fact and law relied on in support of the position taken on each question. Where exception has been taken to a factual finding of the Administrative Law Judge and the party filing the answering brief proposes to support the Judge's finding, the answering brief must specify those pages of the record which the party contends support the Judge's finding.
(c) Cross-exceptions and brief in support. Any party who has not previously filed exceptions may, within 14 days, or such further period as the Board may allow, from the last date on which exceptions and any supporting brief may be filed, file cross-exceptions to any portion of the Administrative Law Judge's decision, together with a supporting brief, in accordance with the provisions of paragraphs (a) and (h) of this section.
(d) Answering briefs to cross-exceptions. Within 14 days, or such further period as the Board may allow, from the last date on which cross-exceptions and any supporting brief may be filed, any other party may file an answering brief to such cross-exceptions in accordance with the provisions of paragraphs (b) and (h) of this section. Such answering brief must be limited to the questions raised in the cross-exceptions.
(e) Reply briefs. Within 14 days from the last date on which an answering brief may be filed pursuant to paragraphs (b) or (d) of this section, any party may file a reply brief to any such answering brief. Any reply brief filed pursuant to this paragraph (e) must be limited to matters raised in the brief to which it is replying, and must not exceed 10 pages. No extensions of time will be granted for the filing of reply briefs, nor will permission be granted to exceed the 10-page limit. The reply brief must be filed with the Board and served on the other parties. No further briefs may be filed except by special leave of the Board. Requests for such leave must be in writing and copies must be served simultaneously on the other parties.
(f) Failure to except. Matters not included in exceptions or cross-exceptions may not thereafter be urged before the Board, or in any further proceeding.
(g) Oral argument. A party desiring oral argument before the Board must request permission from the Board in writing simultaneously with the filing of exceptions or cross-exceptions. The Board will notify the parties of the time and place of oral argument, if such permission is granted. Oral arguments are limited to 30 minutes for each party entitled to participate. No request for additional time will be granted unless timely application is made in advance of oral argument.
(h) Filing requirements. Documents filed pursuant to this section must be filed with the Board in Washington, DC, and copies must also be served simultaneously on the other parties. Any brief filed pursuant to this section must not be combined with any other brief, and except for reply briefs whose length is governed by paragraph (e) of this section, must not exceed 50 pages in length, exclusive of subject index and table of cases and other authorities cited.
(i) Amicus curiae briefs. Amicus curiae briefs will be accepted only by permission of the Board. Motions for permission to file an amicus brief must state the bases of the movant's interest in the case and why the brief will be of benefit to the Board in deciding the matters at issue. Unless the Board directs otherwise, the following procedures will apply.
(1) The Board will consider motions to file an amicus brief only when: (a) A party files exceptions to an Administrative Law Judge's decision; or (b) a case is remanded by the court of appeals and the Board requests briefing from the parties.
(2) In circumstances where a party files exceptions to an Administrative Law Judge's decision, the motion must be filed with the Office of the Executive Secretary of the Board no later than 42 days after the filing of exceptions, or in the event cross-exceptions are filed, no later than 42 days after the filing of cross-exceptions. Where a case has been remanded by the court of appeals, the motion must be filed no later than 21 days after the parties file statements of position on remand. A motion filed outside these time periods must be supported by a showing of good cause. The motion will not operate to stay the issuance of a Board decision upon completion of the briefing schedule for the parties.
(3) The motion must be accompanied by the proposed amicus brief and must comply with the service and form prescribed by § 102.5. The brief may be no more than 25 pages in length.
(4) A party may file a reply to the motion within 7 days of service of the motion. A party may file an answering brief to the amicus brief within 14 days of issuance of the Board's order granting permission to file the amicus brief. Replies to an answering brief will not be permitted.
(5) The Board may direct the Executive Secretary to solicit amicus briefs. In such cases, the Executive Secretary will specify in the invitation the due date and page length for solicited amicus briefs, and the deadline for the parties to file answering briefs. Absent compelling reasons, no extensions of time will be granted for filing solicited amicus briefs or answering briefs.
§ 102.47   Filing of motion after transfer of case to Board.
All motions filed after the case has been transferred to the Board pursuant to § 102.45 must be filed with the Board in Washington, DC, and served upon the other parties. Such motions must be printed or otherwise legibly duplicated.
§ 102.48   No exceptions filed; exceptions filed; motions for reconsideration, rehearing, or reopening the record.
(a) No exceptions filed. If no timely or proper exceptions are filed, the findings, conclusions, and recommendations contained in the Administrative Law Judge's decision will, pursuant to Section 10(c) of the Act, automatically become the decision and order of the Board and become its findings, conclusions, and order, and all objections and exceptions must be deemed waived for all purposes.
(b) Exceptions filed. (1) Upon the filing of timely and proper exceptions, and any cross-exceptions or answering briefs, as provided in § 102.46, the Board may decide the matter upon the record, or after oral argument, or may reopen the record and receive further evidence before a Board Member or other Board agent or agency, or otherwise dispose of the case.
(2) Where exception is taken to a factual finding of the Administrative Law Judge, the Board, in determining whether the finding is contrary to a preponderance of the evidence, may limit its consideration to such portions of the record as are specified in the exceptions, the supporting brief, and the answering brief.
(c) Motions for reconsideration, rehearing, or reopening the record. A party to a proceeding before the Board may, because of extraordinary circumstances, move for reconsideration, rehearing, or reopening of the record after the Board decision or order.
(1) A motion for reconsideration must state with particularity the material error claimed and with respect to any finding of material fact, must specify the page of the record relied on. A motion for rehearing must specify the error alleged to require a hearing de novo and the prejudice to the movant from the error. A motion to reopen the record must state briefly the additional evidence sought to be adduced, why it was not presented previously, and that, if adduced and credited, it would require a different result. Only newly discovered evidence, evidence which has become available only since the close of the hearing, or evidence which the Board believes may have been taken at the hearing will be taken at any further hearing.
(2) Any motion pursuant to this section must be filed within 28 days, or such further period as the Board may allow, after the service of the Board's decision or order, except that a motion to reopen the record must be filed promptly on discovery of the evidence to be adduced.
(3) The filing and pendency of a motion under this provision will not stay the effectiveness of the action of the Board unless so ordered. A motion for reconsideration or rehearing need not be filed to exhaust administrative remedies.
§ 102.49   Modification or setting aside of Board order before record filed in court; action thereafter.
Within the limitations of the provisions of Section 10(c) of the Act, and § 102.48, until a transcript of the record in a case is filed in a court, within the meaning of Section 10 of the Act, the Board may at any time upon reasonable notice modify or set aside, in whole or in part, any findings of fact, conclusions of law, or order made or issued by it. Thereafter, the Board may proceed pursuant to § 102.50, insofar as applicable.
§ 102.50   Hearings before the Board or a Board Member.
Whenever the Board deems it necessary to effectuate the purposes of the Act or to avoid unnecessary costs or delay, it may, at any time, after a complaint has issued pursuant to § 102.15 or § 102.33, order that such complaint and any proceeding which may have been instituted with respect thereto be transferred to and continued before it or any Board Member. The provisions of this subpart, insofar as applicable, govern proceedings before the Board or any Board Member pursuant to this section, and the powers granted to Administrative Law Judges in such provisions will, for the purpose of this section, be reserved to and exercised by the Board or the Board Member who will preside.
§ 102.51   Settlement or adjustment of issues.
At any stage of a proceeding prior to hearing, where time, the nature of the proceeding, and the public interest permit, all interested parties have an opportunity to submit to the Regional Director, with whom the charge was filed, for consideration, facts, arguments, offers of settlement, or proposals of adjustment.
§ 102.52   Compliance with Board order; notification of compliance determination.
After entry of a Board order directing remedial action, or the entry of a court judgment enforcing such order, the Regional Director will seek compliance from all persons having obligations under the order. As appropriate, the Regional Director will make a compliance determination and notify the parties of that determination. A Charging Party adversely affected by a monetary, make-whole, reinstatement, or other compliance determination will be provided, on request, with a written statement of the basis for that determination.
§ 102.53   Appeal of compliance determination to the General Counsel; General Counsel's action; request for review by the Board; Board action; opposition to appeal or request for review.
(a) Appeal of compliance determination to the General Counsel. The Charging Party may appeal a compliance determination to the General Counsel in Washington, DC, within 14 days of the written statement of compliance determination as set forth in § 102.52. The appeal must contain a complete statement setting forth the facts and reasons upon which it is based and must identify with particularity the error claimed in the Regional Director's determination. The General Counsel may for good cause shown extend the time for filing an appeal.
(b) General Counsel's action. The General Counsel may affirm or modify the Regional Director's determination or take such other action deemed appropriate, and must state the grounds for that decision.
(c) Request for review by Board. Within 14 days after service of the General Counsel's decision, the Charging Party may file a request for review of that decision with the Board in Washington, DC. The request for review must contain a complete statement of the facts and reasons upon which it is based and must identify with particularity the error claimed in the General Counsel's decision. A copy of the request for review must be served simultaneously on all other parties and on the General Counsel and the Regional Director.
(d) Board action. The Board may affirm or modify the General Counsel's decision, or otherwise dispose of the matter as it deems appropriate. The denial of the request for review will constitute an affirmance of the General Counsel's decision.
(e) Opposition to appeal or request for review. Within 7 days of receipt of a compliance appeal or request for review, a party may file an opposition to the compliance appeal or request for review.
§ 102.54   Issuance of compliance specification; consolidation of complaint and compliance specification.
(a) If it appears that controversy exists with respect to compliance with a Board order which cannot be resolved without a formal proceeding, the Regional Director may issue and serve on all parties a compliance specification in the name of the Board. The specification will contain or be accompanied by a Notice of Hearing before an Administrative Law Judge at a specific place and at a time not less than 21 days after the service of the specification.
(b) Whenever the Regional Director deems it necessary to effectuate the purposes and policies of the Act or to avoid unnecessary costs or delay, the Regional Director may issue a compliance specification, with or without a notice of hearing, based on an outstanding complaint.
(c) Whenever the Regional Director deems it necessary to effectuate the purposes and policies of the Act or to avoid unnecessary costs or delay, the Regional Director may consolidate with a complaint and Notice of Hearing issued pursuant to § 102.15 a compliance specification based on that complaint. After opening of the hearing, the Board or the Administrative Law Judge, as appropriate, must approve consolidation. Issuance of a compliance specification is not a prerequisite or bar to Board initiation of proceedings in any administrative or judicial forum which the Board or the Regional Director determines to be appropriate for obtaining compliance with a Board order.
§ 102.55   Contents of compliance specification.
(a) Contents of specification with respect to allegations concerning the amount of backpay due. With respect to allegations concerning the amount of backpay due, the specification will specifically and in detail show, for each employee, the backpay periods broken down by calendar quarters, the specific figures and basis of computation of gross backpay and interim earnings, the expenses for each quarter, the net backpay due, and any other pertinent information.
(b) Contents of specification with respect to allegations other than the amount of backpay due. With respect to allegations other than the amount of backpay due, the specification will contain a clear and concise description of the respects in which the Respondent has failed to comply with a Board or court order, including the remedial acts claimed to be necessary for compliance by the Respondent and, where known, the approximate dates, places, and names of the Respondent's agents or other representatives described in the specification.
(c) Amendments to specification. After the issuance of the Notice of Compliance Hearing but before the hearing opens, the Regional Director may amend the specification. After the hearing opens, the specification may be amended upon leave of the Administrative Law Judge or the Board, upon good cause shown.
§ 102.56   Answer to compliance specification.
(a) Filing and service of answer to compliance specification. Each Respondent alleged in the specification to have compliance obligations must, within 21 days from the service of the specification, file an answer with the Regional Director issuing the specification, and must immediately serve a copy on the other parties.
(b) Form and contents of answer. The answer to the specification must be in writing, signed and sworn to by the Respondent or by a duly authorized agent with appropriate power of attorney affixed, and contain the address of the Respondent. The answer must specifically admit, deny, or explain each allegation of the specification, unless the Respondent is without knowledge, in which case the Respondent must so state, such statement operating as a denial. Denials must fairly meet the substance of the allegations of the specification at issue. When a Respondent intends to deny only a part of an allegation, the Respondent must specify so much of it as is true and deny only the remainder. As to all matters within the knowledge of the Respondent, including but not limited to the various factors entering into the computation of gross backpay, a general denial will not suffice. As to such matters, if the Respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, the answer must specifically state the basis for such disagreement, setting forth in detail the Respondent's position and furnishing the appropriate supporting figures.
(c) Failure to answer or to plead specifically and in detail to backpay allegations of specification. If the Respondent fails to file any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allegations of the specification and without further notice to the Respondent, find the specification to be true and enter such order as may be appropriate. If the Respondent files an answer to the specification but fails to deny any allegation of the specification in the manner required by paragraph (b) of this section, and the failure to deny is not adequately explained, such allegation will be deemed admitted as true, and may be so found by the Board without the taking of evidence supporting such allegation, and the Respondent will be precluded from introducing any evidence controverting the allegation.
(d) Extension of time for filing answer to specification. Upon the Regional Director's own motion or upon proper cause shown by any Respondent, the Regional Director issuing the compliance specification may, by written order, extend the time within which the answer to the specification must be filed.
(e) Amendment to answer. Following the amendment of the specification by the Regional Director, any Respondent affected by the amendment may amend its answer.
§ 102.57   Extension of date of hearing.
Upon the Regional Director's own motion or upon proper cause shown, the Regional Director issuing the compliance specification and Notice of Hearing may extend the hearing date.
§ 102.58   Withdrawal of compliance specification.
Any compliance specification and Notice of Hearing may be withdrawn before the hearing by the Regional Director upon the Director's own motion.
§ 102.59   Hearing and posthearing procedures.
After the issuance of a compliance specification and Notice of Hearing, the procedures provided in §§ 102.24 through 102.51 will be followed insofar as applicable.
§ 102.60   Petitions.
(a) Petition for certification or decertification. A petition for investigation of a question concerning representation of employees under paragraphs (1)(A)(i) and (1)(B) of Section 9(c) of the Act (hereinafter called a petition for certification) may be filed by an employee or group of employees or any individual or labor organization acting in their behalf or by an employer. A petition under paragraph (1)(A)(ii) of Section 9(c) of the Act, alleging that the individual or labor organization which has been certified or is being currently recognized as the bargaining representative is no longer such representative (hereinafter called a petition for decertification), may be filed by any employee or group of employees or any individual or labor organization acting in their behalf. Petitions under this section shall be in writing and signed, and either shall be sworn to before a notary public, Board agent, or other person duly authorized by law to administer oaths and take acknowledgments or shall contain a declaration by the person signing it, under the penalty of perjury, that its contents are true and correct (see 28 U.S.C. 1746). One original of the petition shall be filed, and a copy served on all parties named in the petition. A person filing a petition by facsimile pursuant to § 102.5(e) shall also file an original for the Agency's records, but failure to do so shall not affect the validity of the filing by facsimile, if otherwise proper. A person filing a petition electronically pursuant to § 102.5(c) need not file an original. Except as provided in § 102.72, such petitions shall be filed with the Regional Director for the Region wherein the bargaining unit exists, or, if the bargaining unit exists in two or more Regions, with the Regional Director for any of such Regions. A certificate of service on all parties named in the petition shall also be filed with the Regional Director when the petition is filed. Along with the petition, the petitioner shall serve the Agency's description of the procedures in representation cases and the Agency's Statement of Position form on all parties named in the petition. Prior to the transfer of the record to the Board, the petition may be withdrawn only with the consent of the Regional Director with whom such petition was filed. After the transfer of the record to the Board, the petition may be withdrawn only with the consent of the Board. Whenever the Regional Director or the Board, as the case may be, approves the withdrawal of any petition, the case shall be closed.
(b) Petition for clarification of bargaining unit or petition for amendment of certification. A petition for clarification of an existing bargaining unit or a petition for amendment of certification, in the absence of a question of representation, may be filed by a labor organization or by an employer. Where applicable the same procedures set forth in paragraph (a) of this section shall be followed.
§ 102.61   Contents of petition for certification; contents of petition for decertification; contents of petition for clarification of bargaining unit; contents of petition for amendment of certification.
(a) RC petitions. A petition for certification, when filed by an employee or group of employees or an individual or labor organization acting in their behalf, shall contain the following:
(1) The name of the employer.
(2) The address of the establishments involved.
(3) The general nature of the employer's business.
(4) A description of the bargaining unit which the petitioner claims to be appropriate.
(5) The names and addresses of any other persons or labor organizations who claim to represent any employees in the alleged appropriate unit, and brief descriptions of the contracts, if any, covering the employees in such unit.
(6) The number of employees in the alleged appropriate unit.
(7) A statement that a substantial number of employees in the described unit wish to be represented by the petitioner. Evidence supporting the statement shall be filed with the petition in accordance with paragraph (f) of this section, but shall not be served on any party.
(8) A statement that the employer declines to recognize the petitioner as the representative within the meaning of Section 9(a) of the Act or that the labor organization is currently recognized but desires certification under the Act.
(9) The name, affiliation, if any, and address of the petitioner, and the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding.
(10) Whether a strike or picketing is in progress at the establishment involved and, if so, the approximate number of employees participating, and the date such strike or picketing commenced.
(11) Any other relevant facts.
(12) The type, date(s), time(s) and location(s) of the election sought.
(b) RM petitions. A petition for certification, when filed by an employer, shall contain the following:
(1) The name and address of the petitioner, and the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding.
(2) The general nature of the petitioner's business.
(3) A brief statement setting forth that one or more individuals or labor organizations have presented to the petitioner a claim to be recognized as the exclusive representative of all employees in the unit claimed to be appropriate; a description of such unit; and the number of employees in the unit.
(4) The name or names, affiliation, if any, and addresses of the individuals or labor organizations making such claim for recognition.
(5) A statement whether the petitioner has contracts with any labor organization or other representatives of employees and, if so, their expiration date(s).
(6) Whether a strike or picketing is in progress at the establishment involved and, if so, the approximate number of employees participating, and the date such strike or picketing commenced.
(7) Any other relevant facts.
(8) Evidence supporting the statement that a labor organization has made a demand for recognition on the employer or that the employer has good faith uncertainty about majority support for an existing representative. Such evidence shall be filed together with the petition, but if the evidence reveals the names and/or number of employees who no longer wish to be represented, the evidence shall not be served on any party. However, no proof of representation on the part of the labor organization claiming a majority is required and the Regional Director shall proceed with the case if other factors require it unless the labor organization withdraws its claim to majority representation.
(9) The type, date(s), time(s) and location(s) of the election sought.
(c) RD petitions. Petitions for decertification shall contain the following:
(1) The name of the employer.
(2) The address of the establishments and a description of the bargaining unit involved.
(3) The general nature of the employer's business.
(4) The name and address of the petitioner and affiliation, if any, and the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding.
(5) The name or names and addresses of the individuals or labor organizations who have been certified or are being currently recognized by the employer and who claim to represent any employees in the unit involved, and the expiration date of any contracts covering such employees.
(6) An allegation that the individuals or labor organizations who have been certified or are currently recognized by the employer are no longer the representative in the appropriate unit as defined in Section 9(a) of the Act.
(7) The number of employees in the unit.
(8) A statement that a substantial number of employees in the described unit no longer wish to be represented by the incumbent representative. Evidence supporting the statement shall be filed with the petition in accordance with paragraph (f) of this section, but shall not be served on any party.
(9) Whether a strike or picketing is in progress at the establishment involved and, if so, the approximate number of employees participating, and the date such strike or picketing commenced.
(10) Any other relevant facts.
(11) The type, date(s), time(s) and location(s) of the election sought.
(d) UC petitions. A petition for clarification shall contain the following:
(1) The name of the employer and the name of the recognized or certified bargaining representative.
(2) The address of the establishment involved.
(3) The general nature of the employer's business.
(4) A description of the present bargaining unit, and, if the bargaining unit is certified, an identification of the existing certification.
(5) A description of the proposed clarification.
(6) The names and addresses of any other persons or labor organizations who claim to represent any employees affected by the proposed clarifications, and brief descriptions of the contracts, if any, covering any such employees.
(7) The number of employees in the present bargaining unit and in the unit as proposed under the clarification.
(8) The job classifications of employees as to whom the issue is raised, and the number of employees in each classification.
(9) A statement by petitioner setting forth reasons why petitioner desires clarification of unit.
(10) The name, the affiliation, if any, and the address of the petitioner, and the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding.
(11) Any other relevant facts.
(e) AC petitions. A petition for amendment of certification shall contain the following:
(1) The name of the employer and the name of the certified union involved.
(2) The address of the establishment involved.
(3) The general nature of the employer's business.
(4) Identification and description of the existing certification.
(5) A statement by petitioner setting forth the details of the desired amendment and reasons therefor.
(6) The names and addresses of any other persons or labor organizations who claim to represent any employees in the unit covered by the certification and brief descriptions of the contracts, if any, covering the employees in such unit.
(7) The name, the affiliation, if any, and the address of the petitioner, and the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the representation proceeding.
(8) Any other relevant facts.
(f) Provision of original signatures. Evidence filed pursuant to paragraph (a)(7), (b)(8), or (c)(8) of this section together with a petition that is filed by facsimile or electronically, which includes original signatures that cannot be transmitted in their original form by the method of filing of the petition, may be filed by facsimile or in electronic form provided that the original documents are received by the Regional Director no later than 2 business days after the facsimile or electronic filing.
§ 102.62   Election agreements; voter list; Notice of Election.
(a) Consent-election agreements with final Regional Director determinations of post-election disputes. Where a petition has been duly filed, the employer and any individual or labor organizations representing a substantial number of employees involved may, with the approval of the Regional Director, enter into an agreement providing for the waiver of a hearing and for an election and further providing that post-election disputes will be resolved by the Regional Director. Such agreement, referred to as a consent election agreement, shall include a description of the appropriate unit, the time and place of holding the election, and the payroll period to be used in determining what employees within the appropriate unit shall be eligible to vote. Such election shall be conducted under the direction and supervision of the Regional Director. The method of conducting such election shall be consistent with the method followed by the Regional Director in conducting elections pursuant to §§ 102.69 and 102.70 except that the rulings and determinations by the Regional Director of the results thereof shall be final, and the Regional Director shall issue to the parties a certification of the results of the election, including certifications of representative where appropriate, with the same force and effect, in that case, as if issued by the Board, and except that rulings or determinations by the Regional Director in respect to any amendment of such certification shall also be final.
(b) Stipulated election agreements with discretionary Board review. Where a petition has been duly filed, the employer and any individuals or labor organizations representing a substantial number of the employees involved may, with the approval of the Regional Director, enter into an agreement providing for the waiver of a hearing and for an election as described in paragraph (a) of this section and further providing that the parties may request Board review of the Regional Director's resolution of post-election disputes. Such agreement, referred to as a stipulated election agreement, shall also include a description of the appropriate bargaining unit, the time and place of holding the election, and the payroll period to be used in determining which employees within the appropriate unit shall be eligible to vote. Such election shall be conducted under the direction and supervision of the Regional Director. The method of conducting such election and the post-election procedure shall be consistent with that followed by the Regional Director in conducting elections pursuant to §§ 102.69 and 102.70.
(c) Full consent election agreements with final Regional Director determinations of pre- and post-election disputes. Where a petition has been duly filed, the employer and any individual or labor organizations representing a substantial number of the employees involved may, with the approval of the Regional Director, enter into an agreement, referred to as a full consent election agreement, providing that pre- and post-election disputes will be resolved by the Regional Director. Such agreement provides for a hearing pursuant to §§ 102.63, 102.64, 102.65, 102.66, and 102.67 to determine if a question of representation exists. Upon the conclusion of such a hearing, the Regional Director shall issue a decision. The rulings and determinations by the Regional Director thereunder shall be final, with the same force and effect, in that case, as if issued by the Board. Any election ordered by the Regional Director shall be conducted under the direction and supervision of the Regional Director. The method of conducting such election shall be consistent with the method followed by the Regional Director in conducting elections pursuant to §§ 102.69 and 102.70, except that the rulings and determinations by the Regional Director of the results thereof shall be final, and the Regional Director shall issue to the parties a certification of the results of the election, including certifications of representative where appropriate, with the same force and effect, in that case, as if issued by the Board, and except that rulings or determinations by the Regional Director in respect to any amendment of such certification shall also be final.
(d) Voter list. Absent agreement of the parties to the contrary specified in the election agreement or extraordinary circumstances specified in the direction of election, within 2 business days after the approval of an election agreement pursuant to paragraph (a) or (b) of this section, or issuance of a direction of election pursuant to paragraph (c) of this section, the employer shall provide to the Regional Director and the parties named in the agreement or direction a list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cellular “cell” telephone numbers) of all eligible voters. The employer shall also include in separate sections of that list the same information for those individuals who will be permitted to vote subject to challenge. In order to be timely filed and served, the list must be received by the Regional Director and the parties named in the agreement or direction respectively within 2 business days after the approval of the agreement or issuance of the direction unless a longer time is specified in the agreement or direction. The list of names shall be alphabetized (overall or by department) and be in an electronic format approved by the General Counsel unless the employer certifies that it does not possess the capacity to produce the list in the required form. When feasible, the list shall be filed electronically with the Regional Director and served electronically on the other parties named in the agreement or direction. A certificate of service on all parties shall be filed with the Regional Director when the voter list is filed. The employer's failure to file or serve the list within the specified time or in proper format shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a)(8). The employer shall be estopped from objecting to the failure to file or serve the list within the specified time or in the proper format if it is responsible for the failure. The parties shall not use the list for purposes other than the representation proceeding, Board proceedings arising from it, and related matters.
(e) Notice of Election. Upon approval of the election agreement pursuant to paragraph (a) or (b) of this section or with the direction of election pursuant to paragraph (c) of this section, the Regional Director shall promptly transmit the Board's Notice of Election to the parties and their designated representatives by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided). The employer shall post and distribute the Notice of Election in accordance with § 102.67(k). The employer's failure properly to post or distribute the election notices as required herein shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a)(8). A party shall be estopped from objecting to the nonposting of notices if it is responsible for the nonposting, and likewise shall be estopped from objecting to the nondistribution of notices if it is responsible for the nondistribution.
§ 102.63   Investigation of petition by Regional Director; Notice of Hearing; service of notice; Notice of Petition for Election; Statement of Position; withdrawal of Notice of Hearing.
(a) Investigation; Notice of Hearing; notice of petition for election. (1) After a petition has been filed under § 102.61(a), (b), or (c), if no agreement such as that provided in § 102.62 is entered into and if it appears to the Regional Director that there is reasonable cause to believe that a question of representation affecting commerce exists, that the policies of the Act will be effectuated, and that an election will reflect the free choice of employees in an appropriate unit, the Regional Director shall prepare and cause to be served upon the parties and upon any known individuals or labor organizations purporting to act as representatives of any employees directly affected by such investigation, a Notice of Hearing before a Hearing Officer at a time and place fixed therein. Except in cases presenting unusually complex issues, the Regional Director shall set the hearing for a date 8 days from the date of service of the notice excluding intervening Federal holidays, but if the 8th day is a weekend or Federal holiday, the Regional Director shall set the hearing for the following business day. The Regional Director may postpone the hearing for up to 2 business days upon request of a party showing special circumstances. The Regional Director may postpone the opening of the hearing for more than 2 business days upon request of a party showing extraordinary circumstances. A copy of the petition, a description of procedures in representation cases, a Notice of Petition for Election, and a Statement of Position form as described in paragraphs (b)(1) through (3) of this section, shall be served with such Notice of Hearing. Any such Notice of Hearing may be amended or withdrawn before the close of the hearing by the Regional Director on the director's own motion.
(2) Within 2 business days after service of the Notice of Hearing, the employer shall post the Notice of Petition for Election in conspicuous places, including all places where notices to employees are customarily posted, and shall also distribute it electronically to employees in the petitioned-for unit if the employer customarily communicates with its employees electronically. The Notice of Petition for Election shall indicate that no final decisions have been made yet regarding the appropriateness of the petitioned-for bargaining unit and whether an election shall be conducted. The employer shall maintain the posting until the petition is dismissed or withdrawn or the Notice of Petition for Election is replaced by the Notice of Election. The employer's failure properly to post or distribute the Notice of Petition for Election may be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a)(8). A party shall be estopped from objecting to the nonposting of notices if it is responsible for the nonposting, and likewise shall be estopped from objecting to the nondistribution of notices if it is responsible for the nondistribution.
(b) Statements of Position —(1) Statement of Position in RC cases. If a petition has been filed under § 102.61(a) and the Regional Director has issued a Notice of Hearing, the employer shall file with the Regional Director and serve on the parties named in the petition its Statement of Position such that it is received by the Regional Director and the parties named in the petition by the date and time specified in the Notice of Hearing, which shall be at noon on the business day before the opening of the hearing if the hearing is set to open 8 days from service of the notice. The Regional Director may set the date and time for filing and serving the Statement of Position earlier than at noon on the business day before the hearing in the event the hearing is set to open more than 8 days from service of the notice. The Regional Director may postpone the time for filing and serving the Statement of Position for up to 2 business days upon request of a party showing special circumstances. The Regional Director may postpone the time for filing and serving the Statement of Position for more than 2 business days upon request of a party showing extraordinary circumstances. The Regional Director may permit the employer to amend its Statement of Position in a timely manner for good cause.
(i) Employer's Statement of Position. (A) The employer's Statement of Position shall state whether the employer agrees that the Board has jurisdiction over it and provide the requested information concerning the employer's relation to interstate commerce; state whether the employer agrees that the proposed unit is appropriate, and, if the employer does not so agree, state the basis for its contention that the proposed unit is inappropriate, and state the classifications, locations, or other employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit; identify any individuals whose eligibility to vote the employer intends to contest at the pre-election hearing and the basis of each such contention; raise any election bar; state the length of the payroll period for employees in the proposed unit and the most recent payroll period ending date; state the employer's position concerning the type, date(s), time(s), and location(s) of the election and the eligibility period; and describe all other issues the employer intends to raise at the hearing.
(B) The Statement of Position shall also state the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as the representative of the employer and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the employer.
(C) The Statement of Position shall include a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing, and if the employer contends that the proposed unit is inappropriate, the employer shall separately list the full names, work locations, shifts, and job classifications of all individuals that the employer contends must be added to the proposed unit to make it an appropriate unit. The employer shall also indicate those individuals, if any, whom it believes must be excluded from the proposed unit to make it an appropriate unit. The list(s) of names shall be alphabetized (overall or by department) and be in an electronic format approved by the General Counsel unless the employer certifies that it does not possess the capacity to produce the list in the required form.
(2) Statement of Position in RM cases. If a petition has been filed under § 102.61(b) and the Regional Director has issued a Notice of Hearing, each individual or labor organization named in the petition shall file with the Regional Director and serve on the other parties named in the petition its Statement of Position such that it is received by the Regional Director and the parties named in the petition by the date and time specified in the Notice of Hearing, which shall be at noon on the business day before the opening of the hearing if the hearing is set to open 8 days from service of the notice. The Regional Director may set the date and time for filing and serving the Statement of Position earlier than at noon on the business day before the hearing in the event the hearing is set to open more than 8 days from service of the notice. The Regional Director may postpone the time for filing and serving the Statement of Position for up to 2 business days upon request of a party showing special circumstances. The Regional Director may postpone the time for filing and serving the Statement of Position for more than 2 business days upon request of a party showing extraordinary circumstances. The Regional Director may permit each individual or labor organization named in the petition to amend its Statement of Position in a timely manner for good cause.
(i) Individual or labor organization's Statement of Position. Each individual or labor organization's Statement of Position shall state whether it agrees that the Board has jurisdiction over the employer; state whether it agrees that the proposed unit is appropriate, and, if it does not so agree, state the basis for its contention that the proposed unit is inappropriate, and state the classifications, locations, or other employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit; identify any individuals whose eligibility to vote the individual or labor organization intends to contest at the pre-election hearing and the basis of each such contention; raise any election bar; state its position concerning the type, date(s), time(s), and location(s) of the election and the eligibility period; and describe all other issues it intends to raise at the hearing.
(ii) Identification of representative for service of papers. Each individual or labor organization's Statement of Position shall also state the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as its representative and accept service of all papers for purposes of the representation proceeding and be signed by the individual or a representative of the individual or labor organization.
(iii) Employer's Statement of Position. Within the time permitted for filing the Statement of Position, the employer shall file with the Regional Director and serve on the parties named in the petition a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing. The list(s) of names shall be alphabetized (overall or by department) and be in an electronic format approved by the General Counsel unless the employer certifies that it does not possess the capacity to produce the list in the required form. The employer's Statement of Position shall also state whether the employer agrees that the Board has jurisdiction over it and provide the requested information concerning the employer's relation to interstate commerce; identify any individuals whose eligibility to vote the employer intends to contest at the pre-election hearing and the basis of each such contention; and state the length of the payroll period for employees in the proposed unit and the most recent payroll period ending date. The Regional Director may permit the employer to amend its Statement of Position in a timely manner for good cause.
(3) Statement of Position in RD cases —(i) Employer's and Representative's Statements of Position. (A) If a petition has been filed under § 102.61(c) and the Regional Director has issued a Notice of Hearing, the employer and the certified or recognized representative of employees shall file with the Regional Director and serve on the parties named in the petition their respective Statements of Position such that they are received by the Regional Director and the parties named in the petition by the date and time specified in the Notice of Hearing, which shall be at noon on the business day before the opening of the hearing if the hearing is set to open 8 days from service of the notice. The Regional Director may set the date and time for filing and serving the Statement of Position earlier than at noon on the business day before the hearing in the event the hearing is set to open more than 8 days from service of the notice. The Regional Director may postpone the time for filing and serving the Statement of Position for up to 2 business days upon request of a party showing special circumstances. The Regional Director may postpone the time for filing and serving the Statement of Position for more than 2 business days upon request of a party showing extraordinary circumstances. The Regional Director may permit the employer and the certified or recognized representative of employees to amend their respective Statements of Position in a timely manner for good cause.
(B) The Statements of Position of the employer and the certified or recognized representative shall state each party's position concerning the Board's jurisdiction over the employer; state whether each agrees that the proposed unit is appropriate, and, if not, state the basis for the contention that the proposed unit is inappropriate, and state the classifications, locations, or other employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit; identify any individuals whose eligibility to vote each party intends to contest at the pre-election hearing and the basis of each such contention; raise any election bar; and state each party's respective positions concerning the type, date(s), time(s), and location(s) of the election and the eligibility period; and describe all other issues each party intends to raise at the hearing.
(C) The Statements of Position shall also state the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as the representative of the employer or the certified or recognized representative of the employees and accept service of all papers for purposes of the representation proceeding and be signed by a representative of the employer or the certified or recognized representative, respectively.
(D) The employer's Statement of Position shall also include a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit as of the payroll period preceding the filing of the petition who remain employed at the time of filing, and if the employer contends that the proposed unit is inappropriate, the employer shall separately list the full names, work locations, shifts, and job classifications of all individuals that the employer contends must be added to the proposed unit to make it an appropriate unit. The employer shall also indicate those individuals, if any, whom it believes must be excluded from the proposed unit to make it an appropriate unit. The list(s) of names shall be alphabetized (overall or by department) and be in an electronic format approved by the General Counsel unless the employer certifies that it does not possess the capacity to produce the list in the required form. The employer's Statement of Position shall also provide the requested information concerning the employer's relation to interstate commerce and state the length of the payroll period for employees in the proposed unit and the most recent payroll period ending date.
(c) UC or AC cases. After a petition has been filed under § 102.61(d) or (e), the Regional Director shall conduct an investigation and, as appropriate, may issue a decision without a hearing; or prepare and cause to be served upon the parties and upon any known individuals or labor organizations purporting to act as representatives of any employees directly affected by such investigation, a Notice of Hearing before a Hearing Officer at a time and place fixed therein; or take other appropriate action. If a Notice of Hearing is served, it shall be accompanied by a copy of the petition. Any such Notice of Hearing may be amended or withdrawn before the close of the hearing by the Regional Director on the director's own motion. All hearing and post-hearing procedure under this paragraph (c) shall be in conformance with §§ 102.64 through 102.69 whenever applicable, except where the unit or certification involved arises out of an agreement as provided in § 102.62(a), the Regional Director's action shall be final, and the provisions for review of Regional Director's decisions by the Board shall not apply. Dismissals of petitions without a hearing shall not be governed by § 102.71. The Regional Director's dismissal shall be by decision, and a request for review therefrom may be obtained under § 102.67, except where an agreement under § 102.62(a) is involved.
§ 102.64   Conduct of hearing.
(a) The purpose of a hearing conducted under Section 9(c) of the Act is to determine if a question of representation exists. A question of representation exists if a proper petition has been filed concerning a unit appropriate for the purpose of collective bargaining or concerning a unit in which an individual or labor organization has been certified or is being currently recognized by the employer as the bargaining representative. Disputes concerning individuals' eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted. If, upon the record of the hearing, the Regional Director finds that a question of representation exists, the director shall direct an election to resolve the question.
(b) Hearings shall be conducted by a Hearing Officer and shall be open to the public unless otherwise ordered by the Hearing Officer. At any time, a Hearing Officer may be substituted for the Hearing Officer previously presiding. Subject to the provisions of § 102.66, it shall be the duty of the Hearing Officer to inquire fully into all matters and issues necessary to obtain a full and complete record upon which the Board or the Regional Director may discharge their duties under Section 9(c) of the Act.
(c) The hearing shall continue from day to day until completed unless the Regional Director concludes that extraordinary circumstances warrant otherwise. The Regional Director may, in the director's discretion, adjourn the hearing to a different place by announcement thereof at the hearing or by other appropriate notice.
§ 102.65   Motions; intervention; appeals of Hearing Officer's rulings.
(a) All motions, including motions for intervention pursuant to paragraphs (b) and (e) of this section, shall be in writing or, if made at the hearing, may be stated orally on the record and shall briefly state the order or relief sought and the grounds for such motion. The Motion shall immediately be served on the other parties to the proceeding. Motions made prior to the transfer of the record to the Board shall be filed with the Regional Director, except that motions made during the hearing shall be filed with the Hearing Officer. After the transfer of the record to the Board, all motions shall be filed with the Board. Such motions shall be printed or otherwise legibly duplicated. Eight copies of such motions shall be filed with the Board. Extra copies of electronically-filed papers need not be filed. The Regional Director may rule upon all motions filed with him/her, causing a copy of the ruling to be served on the parties, or may refer the motion to the Hearing Officer, except that if the Regional Director prior to the close of the hearing grants a motion to dismiss the petition, the petitioner may obtain a review of such ruling in the manner prescribed in § 102.71. The Hearing Officer shall rule, either orally on the record or in writing, upon all motions filed at the hearing or referred to the Hearing Officer as hereinabove provided, except that the Hearing Officer shall rule on motions to intervene and to amend the petition only as directed by the Regional Director, and except that all motions to dismiss petitions shall be referred for appropriate action at such time as the entire record is considered by the Regional Director or the Board, as the case may be. All motions, rulings, and orders shall become a part of the record, except that rulings on motions to revoke subpoenas shall become a part of the record only upon the request of the party aggrieved thereby as provided in § 102.66(f).
(b) Any person desiring to intervene in any proceeding shall make a motion for intervention, stating the grounds upon which such person claims to have an interest in the proceeding. The Regional Director, or the Hearing Officer, at the specific direction of the Regional Director, may by order permit intervention in person or by counsel or other representative to such extent and upon such terms as the Regional Director may deem proper, and such intervenor shall thereupon become a party to the proceeding.
(c) Rulings by the Hearing Officer shall not be appealed directly to the Regional Director, except by special permission of the Regional Director, but shall be considered by the Regional Director when the director reviews the entire record. Requests to the Regional Director for special permission to appeal from a ruling of the Hearing Officer, together with the appeal from such ruling, shall be filed promptly, in writing, and shall briefly state the reasons special permission should be granted and the grounds relied on for the appeal. The moving party shall immediately serve a copy of the request for special permission and of the appeal on the other parties and on the Regional Director. Any statement in opposition or other response to the request and/or to the appeal shall be filed promptly, in writing, and shall be served immediately on the other parties and on the Regional Director. No party shall be precluded from raising an issue at a later time because it did not seek special permission to appeal. If the Regional Director grants the request for special permission to appeal, the Regional Director may proceed forthwith to rule on the appeal. Neither the filing nor the grant of such a request shall stay the proceedings unless otherwise ordered by the Regional Director. As stated in § 102.67, the parties may request Board review of Regional Director actions.
(d) The right to make motions or to make objections to rulings on motions shall not be deemed waived by participation in the proceeding.
(e)(1) A party to a proceeding may, because of extraordinary circumstances, move after the close of the hearing for reopening of the record, or move after the decision or report for reconsideration, for rehearing, or to reopen the record, but no such motion shall stay the time for filing a request for review of a decision or exceptions to a report. No motion for reconsideration, for rehearing, or to reopen the record will be entertained by the Board or by any Regional Director or Hearing Officer with respect to any matter which could have been but was not raised pursuant to any other section of these Rules except that the Regional Director may treat a request for review of a decision or exceptions to a report as a motion for reconsideration. A motion for reconsideration shall state with particularity the material error claimed and with respect to any finding of material fact shall specify the page of the record relied on for the motion. A motion for rehearing or to reopen the record shall specify briefly the error alleged to require a rehearing or hearing de novo, the prejudice to the movant alleged to result from such error, the additional evidence sought to be adduced, why it was not presented previously, and what result it would require if adduced and credited. Only newly discovered evidence—evidence which has become available only since the close of the hearing—or evidence which the Regional Director or the Board believes should have been taken at the hearing will be taken at any further hearing.
(2) Any motion for reconsideration or for rehearing pursuant to paragraph (e)(1) of this section shall be filed within 10 business days, or such further period as may be allowed, after the service of the decision or report. Any request for an extension of time to file such a motion shall be served promptly on the other parties. A motion to reopen the record shall be filed promptly on discovery of the evidence sought to be adduced.
(3) The filing and pendency of a motion under this provision shall not unless so ordered operate to stay the effectiveness of any action taken or directed to be taken nor will a Regional Director or the Board delay any decision or action during the period specified in paragraph (e)(2) of this section, except that, if a motion for reconsideration based on changed circumstances or to reopen the record based on newly discovered evidence states with particularity that the granting thereof will affect the eligibility to vote of specific employees, the Board agent shall have discretion to allow such employees to vote subject to challenge even if they are specifically excluded in the direction of election and to challenge or permit the moving party to challenge the ballots of such employees even if they are specifically included in the direction of election in any election conducted while such motion is pending. A motion for reconsideration, for rehearing, or to reopen the record need not be filed to exhaust administrative remedies.
§ 102.66   Introduction of evidence: rights of parties at hearing; preclusion; subpoenas; oral argument and briefs.
(a) Rights of parties at hearing. Any party shall have the right to appear at any hearing in person, by counsel, or by other representative, to call, examine, and cross-examine witnesses, and to introduce into the record evidence of the significant facts that support the party's contentions and are relevant to the existence of a question of representation. The Hearing Officer shall also have power to call, examine, and cross-examine witnesses and to introduce into the record documentary and other evidence. Witnesses shall be examined orally under oath. The rules of evidence prevailing in courts of law or equity shall not be controlling. Stipulations of fact may be introduced in evidence with respect to any issue.
(b) Statements of Position. Issues in dispute shall be identified as follows: After a Statement of Position is received in evidence and prior to the introduction of further evidence, all other parties shall respond on the record to each issue raised in the Statement. The Regional Director may permit any Statement of Position to be amended in a timely manner for good cause, in which event the other parties shall respond to each amended position. The Regional Director may also permit responses to be amended in a timely manner for good cause. The Hearing Officer shall not receive evidence concerning any issue as to which parties have not taken adverse positions, except that this provision shall not preclude the receipt of evidence regarding the Board's jurisdiction over the employer or limit the Regional Director's discretion to direct the receipt of evidence concerning any issue, such as the appropriateness of the proposed unit, as to which the Regional Director determines that record evidence is necessary.
(c) Offers of proof. The Regional Director shall direct the Hearing Officer concerning the issues to be litigated at the hearing. The Hearing Officer may solicit offers of proof from the parties or their counsel as to any or all such issues. Offers of proof shall take the form of a written statement or an oral statement on the record identifying each witness the party would call to testify concerning the issue and summarizing each witness's testimony. If the Regional Director determines that the evidence described in an offer of proof is insufficient to sustain the proponent's position, the evidence shall not be received.
(d) Preclusion. A party shall be precluded from raising any issue, presenting any evidence relating to any issue, cross-examining any witness concerning any issue, and presenting argument concerning any issue that the party failed to raise in its timely Statement of Position or to place in dispute in response to another party's Statement of Position or response, except that no party shall be precluded from contesting or presenting evidence relevant to the Board's statutory jurisdiction to process the petition. Nor shall any party be precluded, on the grounds that a voter's eligibility or inclusion was not contested at the pre-election hearing, from challenging the eligibility of any voter during the election. If a party contends that the proposed unit is not appropriate in its Statement of Position but fails to specify the classifications, locations, or other employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit, the party shall also be precluded from raising any issue as to the appropriateness of the unit, presenting any evidence relating to the appropriateness of the unit, cross-examining any witness concerning the appropriateness of the unit, and presenting argument concerning the appropriateness of the unit. If the employer fails to timely furnish the lists of employees described in § 102.63(b)(1)(i)(C), (b)(2)(iii), or (b)(3)(i)(D), the employer shall be precluded from contesting the appropriateness of the proposed unit at any time and from contesting the eligibility or inclusion of any individuals at the pre-election hearing, including by presenting evidence or argument, or by cross-examination of witnesses.
(e) Objections. Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, may be stated orally or in writing, accompanied by a short statement of the grounds of such objection, and included in the record. No such objection shall be deemed waived by further participation in the hearing.
(f) Subpoenas. The Board, or any Member thereof, shall, on the written application of any party, forthwith issue subpoenas requiring the attendance and testimony of witnesses and the production of any evidence, including books, records, correspondence, or documents, in their possession or under their control. The Executive Secretary shall have the authority to sign and issue any such subpoenas on behalf of the Board or any Member thereof. Any party may file applications for subpoenas in writing with the Regional Director if made prior to hearing, or with the Hearing Officer if made at the hearing. Applications for subpoenas may be made ex parte. The Regional Director or the Hearing Officer, as the case may be, shall forthwith grant the subpoenas requested. Any person served with a subpoena, whether ad testificandum or duces tecum, if he or she does not intend to comply with the subpoena, shall, within 5 business days after the date of service of the subpoena, petition in writing to revoke the subpoena. The date of service for purposes of computing the time for filing a petition to revoke shall be the date the subpoena is received. Such petition shall be filed with the Regional Director who may either rule upon it or refer it for ruling to the Hearing Officer except that if the evidence called for is to be produced at a hearing and the hearing has opened, the petition to revoke shall be filed with the Hearing Officer. Notice of the filing of petitions to revoke shall be promptly given by the Regional Director or Hearing Officer, as the case may be, to the party at whose request the subpoena was issued. The Regional Director or the Hearing Officer, as the case may be, shall revoke the subpoena if, in his/her opinion, the evidence whose production is required does not relate to any matter under investigation or in question in the proceedings or the subpoena does not describe with sufficient particularity the evidence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The Regional Director or the Hearing Officer, as the case may be, shall make a simple statement of procedural or other grounds for his/her ruling. The petition to revoke, any answer filed thereto, and any ruling thereon shall not become part of the record except upon the request of the party aggrieved by the ruling. Persons compelled to submit data or evidence are entitled to retain or, on payment of lawfully prescribed costs, to procure copies or transcripts of the data or evidence submitted by them.
(g) Election details. Prior to the close of the hearing, the Hearing Officer will:
(1) Solicit the parties' positions on the type, date(s), time(s), and location(s) of the election and the eligibility period, but shall not permit litigation of those issues;
(2) Solicit the name, address, email address, facsimile number, and phone number of the employer's on-site representative to whom the Regional Director should transmit the Notice of Election in the event the Regional Director directs an election;
(3) Inform the parties that the Regional Director will issue a decision as soon as practicable and that the director will immediately transmit the document to the parties and their designated representatives by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided); and
(4) Inform the parties what their obligations will be under these Rules if the director directs an election and of the time for complying with such obligations.
(h) Oral argument and briefs. Any party shall be entitled, upon request, to a reasonable period at the close of the hearing for oral argument, which shall be included in the stenographic report of the hearing. Post-hearing briefs shall be filed only upon special permission of the Regional Director and within the time and addressing the subjects permitted by the Regional Director. Copies of the brief shall be served on all other parties to the proceeding and a statement of such service shall be filed with the Regional Director together with the brief. No reply brief may be filed except upon special permission of the Regional Director.
(i) Hearing Officer analysis. The Hearing Officer may submit an analysis of the record to the Regional Director but shall make no recommendations.
(j) Witness fees. Witness fees and mileage shall be paid by the party at whose instance the witness appears.
§ 102.67   Proceedings before the Regional Director; further hearing; action by the Regional Director; appeals from actions of the Regional Director; statement in opposition; requests for extraordinary relief; Notice of Election; voter list.
(a) Proceedings before Regional Director. The Regional Director may proceed, either forthwith upon the record or after oral argument, the submission of briefs, or further hearing, as the director may deem proper, to determine whether a question of representation exists in a unit appropriate for purposes of collective bargaining as provided in § 102.64(a), and to direct an election, dismiss the petition, or make other disposition of the matter. A decision by the Regional Director upon the record shall set forth the director's findings, conclusions, and order or direction.
(b) Directions of elections. If the Regional Director directs an election, the direction ordinarily will specify the type, date(s), time(s), and location(s) of the election and the eligibility period. The Regional Director shall schedule the election for the earliest date practicable consistent with these Rules. The Regional Director shall transmit the direction of election to the parties and their designated representatives by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided). The Regional Director shall also transmit the Board's Notice of Election to the parties and their designated representatives by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided), and it will ordinarily be transmitted simultaneously with the direction of election. If the direction of election provides for individuals to vote subject to challenge because their eligibility has not been determined, the Notice of Election shall so state, and shall advise employees that the individuals are neither included in, nor excluded from, the bargaining unit, inasmuch as they have been permitted to vote subject to challenge. The election notice shall further advise employees that the eligibility or inclusion of the individuals will be resolved, if necessary, following the election.
(c) Requests for Board review of Regional Director actions. Upon the filing of a request therefor with the Board by any interested person, the Board may review any action of a Regional Director delegated to him/her under Section 3(b) of the Act except as the Board's Rules provide otherwise, but such a review shall not, unless specifically ordered by the Board, operate as a stay of any action by the Regional Director. The request for review may be filed at any time following the action until 10 business days after a final disposition of the proceeding by the Regional Director. No party shall be precluded from filing a request for review of the direction of election within the time provided in this paragraph because it did not file a request for review of the direction of election prior to the election.
(d) Grounds for review. The Board will grant a request for review only where compelling reasons exist therefor. Accordingly, a request for review may be granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because of:
(i) The absence of; or
(ii) A departure from, officially reported Board precedent.
(2) That the Regional Director's decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party.
(3) That the conduct of any hearing or any ruling made in connection with the proceeding has resulted in prejudicial error.
(4) That there are compelling reasons for reconsideration of an important Board rule or policy.
(e) Contents of request. A request for review must be a self-contained document enabling the Board to rule on the basis of its contents without the necessity of recourse to the record; however, the Board may, in its discretion, examine the record in evaluating the request. With respect to the ground listed in paragraph (d)(2) of this section, and other grounds where appropriate, the request must contain a summary of all evidence or rulings bearing on the issues together with page citations from the transcript and a summary of argument. Such request may not raise any issue or allege any facts not timely presented to the Regional Director.
(f) Opposition to request. Any party may, within 5 business days after the last day on which the request for review must be filed, file with the Board a statement in opposition which shall be served in accordance with the requirements of paragraph (i) of this section. The Board may grant or deny the request for review without awaiting a statement in opposition. No reply to the opposition may be filed except upon special leave of the Board.
(g) Finality; waiver; denial of request. The Regional Director's actions are final unless a request for review is granted. The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the Regional Director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding.
(h) Grant of review; briefs. The grant of a request for review shall not stay the Regional Director's action unless otherwise ordered by the Board. Except where the Board rules upon the issues on review in the order granting review, the appellants and other parties may, within 10 business days after issuance of an order granting review, file briefs with the Board. Such briefs may be reproductions of those previously filed with the Regional Director and/or other briefs which shall be limited to the issues raised in the request for review. No reply briefs may be filed except upon special leave of the Board. Where review has been granted, the Board may provide for oral argument or further hearing. The Board will consider the entire record in the light of the grounds relied on for review and shall make such disposition of the matter as it deems appropriate. Any request for review may be withdrawn with the permission of the Board at any time prior to the issuance of the decision of the Board thereon.
(i) Format, Service, and Extensions —(1) Format of request. All documents filed with the Board under the provisions of this section shall be double spaced, on 8 1/2- by 11-inch paper, and shall be printed or otherwise legibly duplicated. Extra copies of electronically-filed papers need not be filed. Requests for review, including briefs in support thereof and any motions under paragraph (j) of this section; statements in opposition thereto; and briefs on review shall not exceed 50 pages in length exclusive of subject index and table of cases and other authorities cited, unless permission to exceed that limit is obtained from the Board by motion, setting forth the reasons therefor, filed pursuant to the procedures set forth in § 102.2(c). Where any brief filed pursuant to this section exceeds 20 pages, it shall contain a subject index with page references and an alphabetical table of cases and other authorities cited. A party may combine a request for review of the Regional Director's decision and direction of election with a request for review of a Regional Director's post-election decision, if the party has not previously filed a request for review of the pre-election decision. A party may not, however, file more than one request for review of a particular action or decision by the Regional Director. Repetitive requests will not be considered.
(2) Service. The party filing with the Board a request for review, a statement in opposition to a request for review, or a brief on review shall serve a copy thereof on the other parties and shall file a copy with the Regional Director. A certificate of service shall be filed with the Board together with the document.
(3) Extensions. Requests for extensions of time to file requests for review, statements in opposition to a request for review, or briefs, as permitted by this section, shall be filed pursuant to § 102.2(c) with the Board or the Regional Director, as the case may be. The party filing the request for an extension of time shall serve a copy thereof on the other parties and, if filed with the Board, on the Regional Director. A statement of such service shall be filed with the document.
(j) Requests for extraordinary relief. (1) A party requesting review may also move in writing to the Board for one or more of the following forms of relief:
(i) Expedited consideration of the request;
(ii) A stay of some or all of the proceedings, including the election; or
(iii) Impoundment and/or segregation of some or all of the ballots.
(2) Relief will be granted only upon a clear showing that it is necessary under the particular circumstances of the case. The pendency of a motion does not entitle a party to interim relief, and an affirmative ruling by the Board granting relief is required before the action of the Regional Director will be altered in any fashion.
(k) Notice of Election. The employer shall post copies of the Board's Notice of Election in conspicuous places, including all places where notices to employees in the unit are customarily posted, at least 3 full working days prior to 12:01 a.m. of the day of the election and shall also distribute it electronically to all eligible voters (including individuals permitted to vote subject to challenge) if the employer customarily communicates with employees in the unit electronically. In elections involving mail ballots, the election shall be deemed to have commenced the day the ballots are deposited by the Regional Office in the mail. In all cases, the notices shall remain posted until the end of the election. For the purposes of this subpart, the term working day shall mean an entire 24-hour period excluding Saturdays, Sundays, and holidays. The employer's failure properly to post or distribute the election notices as required herein shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a)(8). A party shall be estopped from objecting to the nonposting of notices if it is responsible for the nonposting, and likewise shall be estopped from objecting to the nondistribution of notices if it is responsible for the nondistribution.
(l) Voter list. Absent extraordinary circumstances specified in the direction of election, the employer shall, within 2 business days after issuance of the direction, provide to the Regional Director and the parties named in such direction a list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cellular “cell” telephone numbers) of all eligible voters. The employer shall also include in separate sections of that list the same information for those individuals who will be permitted to vote subject to challenge. In order to be timely filed and served, the list must be received by the Regional Director and the parties named in the direction respectively within 2 business days after issuance of the direction of election unless a longer time is specified therein. The list of names shall be alphabetized (overall or by department) and be in an electronic format approved by the General Counsel unless the employer certifies that it does not possess the capacity to produce the list in the required form. When feasible, the list shall be filed electronically with the Regional Director and served electronically on the other parties named in the direction. A certificate of service on all parties shall be filed with the Regional Director when the voter list is filed. The employer's failure to file or serve the list within the specified time or in proper format shall be grounds for setting aside the election whenever proper and timely objections are filed under the provisions of § 102.69(a)(8). The employer shall be estopped from objecting to the failure to file or serve the list within the specified time or in the proper format if it is responsible for the failure. The parties shall not use the list for purposes other than the representation proceeding, Board proceedings arising from it, and related matters.
§ 102.68   Record in pre-election proceeding; what constitutes; transmission to Board.
The record in a proceeding conducted pursuant to the foregoing section shall consist of: the petition, Notice of Hearing with affidavit of service thereof, statements of position, responses to statements of position, offers of proof made at the pre-election hearing, motions, rulings, orders, the stenographic report of the hearing and of any oral argument before the Regional Director, stipulations, exhibits, affidavits of service, and any briefs or other legal memoranda submitted by the parties to the Regional Director or to the Board, and the decision of the Regional Director, if any. Immediately upon issuance of an order granting a request for review by the Board, the Regional Director shall transmit the record to the Board.
§ 102.69   Election procedure; tally of ballots; objections; certification by the Regional Director; hearings; Hearing Officer reports on objections and challenges; exceptions to Hearing Officer reports; Regional Director decisions on objections and challenges.
(a) Election procedure; tally; objections. (1) Unless otherwise directed by the Board, all elections shall be conducted under the supervision of the Regional Director in whose Region the proceeding is pending.
(2) All elections shall be by secret ballot.
(3) Whenever two or more labor organizations are included as choices in an election, either participant may, upon its prompt request to and approval thereof by the Regional Director, whose decision shall be final, have its name removed from the ballot, except that in a proceeding involving an employer-filed petition or a petition for decertification the labor organization certified, currently recognized, or found to be seeking recognition may not have its name removed from the ballot without giving timely notice in writing to all parties and the Regional Director, disclaiming any representation interest among the employees in the unit.
(4) A pre-election conference may be held at which the parties may check the list of voters and attempt to resolve any questions of eligibility or inclusions in the unit.
(5) When the election is conducted manually, any party may be represented by observers of its own selection, subject to such limitations as the Regional Director may prescribe.
(6) Any party and Board agents may challenge, for good cause, the eligibility of any person to participate in the election. The ballots of such challenged persons shall be impounded.
(7) Upon the conclusion of the election the ballots will be counted and a tally of ballots prepared and immediately made available to the parties.
(8) Within 5 business days after the tally of ballots has been prepared, any party may file with the Regional Director objections to the conduct of the election or to conduct affecting the results of the election which shall contain a short statement of the reasons therefor and a written offer of proof in the form described in § 102.66(c) insofar as applicable, except that the Regional Director may extend the time for filing the written offer of proof in support of the election objections upon request of a party showing good cause. Such filing(s) must be timely whether or not the challenged ballots are sufficient in number to affect the results of the election. The party filing the objections shall serve a copy of the objections, including the short statement of reasons therefor, but not the written offer of proof, on each of the other parties to the case, and include a certificate of such service with the objections. A person filing objections by facsimile pursuant to § 102.5(e) shall also file an original for the Agency's records, but failure to do so shall not affect the validity of the filing if otherwise proper. In addition, extra copies need not be filed if the filing is by facsimile or electronically pursuant to § 102.5(e) or (c). The Regional Director will transmit a copy of the objections to be served on each of the other parties to the proceeding, but shall not transmit the offer of proof.
(b) Certification in the absence of objections, determinative challenges and runoff elections. If no objections are filed within the time set forth in paragraph (a)(8) of this section, if the challenged ballots are insufficient in number to affect the results of the election, and if no runoff election is to be held pursuant to § 102.70, the Regional Director shall forthwith issue to the parties a certification of the results of the election, including certification of representative where appropriate, with the same force and effect as if issued by the Board.
(c) Regional director's resolution of objections and challenges —(1) Regional director's determination to hold a hearing —(i) Decisions resolving objections and challenges without a hearing. If timely objections are filed to the conduct of an election or to conduct affecting the results of the election, and the Regional Director determines that the evidence described in the accompanying offer of proof would not constitute grounds for setting aside the election if introduced at a hearing, and the Regional Director determines that any determinative challenges do not raise substantial and material factual issues, the Regional Director shall issue a decision disposing of the objections and determinative challenges, and a certification of the results of the election, including certification of representative where appropriate.
(ii) Notices of hearing on objections and challenges. If timely objections are filed to the conduct of the election or to conduct affecting the results of the election, and the Regional Director determines that the evidence described in the accompanying offer of proof could be grounds for setting aside the election if introduced at a hearing, or if the challenged ballots are sufficient in number to affect the results of the election, and raise substantial and material factual issues, the Regional Director shall transmit to the parties and their designated representatives by email, facsimile, or by overnight mail (if neither an email address nor facsimile number was provided) a Notice of Hearing before a Hearing Officer at a place and time fixed therein. The Regional Director shall set the hearing for a date 15 business days after the preparation of the tally of ballots or as soon as practicable thereafter, unless the parties agree to an earlier date, except that the Regional Director may consolidate the hearing concerning objections and challenges with an unfair labor practice proceeding before an Administrative Law Judge. In any proceeding wherein the election has been held pursuant to § 102.62(a) or (c) and the representation case has been consolidated with an unfair labor practice proceeding for purposes of hearing, the Administrative Law Judge shall, after issuing a decision, sever the representation case and transfer it to the Regional Director for further processing.
(iii) Hearings; Hearing Officer reports; exceptions to Regional Director. The hearing on objections and challenges shall continue from day to day until completed unless the Regional Director concludes that extraordinary circumstances warrant otherwise. Any hearing pursuant to this section shall be conducted in accordance with the provisions of §§ 102.64, 102.65, and 102.66, insofar as applicable. Any party shall have the right to appear at the hearing in person, by counsel, or by other representative, to call, examine, and cross-examine witnesses, and to introduce into the record evidence of the significant facts that support the party's contentions and are relevant to the objections and determinative challenges that are the subject of the hearing. The Hearing Officer may rule on offers of proof. Post-hearing briefs shall be filed only upon special permission of the Hearing Officer and within the time and addressing the subjects permitted by the Hearing Officer. Upon the close of such hearing, the Hearing Officer shall prepare and cause to be served on the parties a report resolving questions of credibility and containing findings of fact and recommendations as to the disposition of the issues. Any party may, within 10 business days from the date of issuance of such report, file with the Regional Director an original and one copy of exceptions to such report, with supporting brief if desired. A copy of such exceptions, together with a copy of any brief filed, shall immediately be served on the other parties and a statement of service filed with the Regional Director. Within 5 business days from the last date on which exceptions and any supporting brief may be filed, or such further time as the Regional Director may allow, a party opposing the exceptions may file an answering brief with the Regional Director. An original and one copy shall be submitted. A copy of such answering brief shall immediately be served on the other parties and a statement of service filed with the Regional Director. Extra copies of electronically-filed papers need not be filed. The Regional Director shall thereupon decide the matter upon the record or make other disposition of the case. If no exceptions are filed to such report, the Regional Director, upon the expiration of the period for filing such exceptions, may decide the matter forthwith upon the record or may make other disposition of the case.
(2) Regional Director decisions and Board review. The decision of the Regional Director disposing of challenges and/or objections may include a certification of the results of the election, including certification of representative where appropriate, and shall be final unless a request for review is granted. If a consent election has been held pursuant to §§ 102.62(a) or (c), the decision of the Regional Director is not subject to Board review. If the election has been conducted pursuant to § 102.62(b), or by a direction of election issued following any proceeding under § 102.67, the parties shall have the right to Board review set forth in § 102.67, except that in any proceeding wherein a representation case has been consolidated with an unfair labor practice proceeding for purposes of hearing and the election was conducted pursuant to §§ 102.62(b) or 102.67, the provisions of § 102.46 shall govern with respect to the filing of exceptions or an answering brief to the exceptions to the Administrative Law Judge's decision, and a request for review of the Regional Director's decision and direction of election shall be due at the same time as the exceptions to the Administrative Law Judge's decision are due.
(d) Record for objections and challenges. (1)(i) Record in case with hearing. In a proceeding pursuant to this section in which a hearing is held, the record in the case shall consist of the Notice of Hearing, motions, rulings, orders, stenographic report of the hearing, stipulations, exhibits, together with the objections to the conduct of the election or to conduct affecting the results of the election, offers of proof made at the post-election hearing, any briefs or other legal memoranda submitted by the parties, any report on such objections and/or on challenged ballots, exceptions, the decision of the Regional Director, any requests for review, and the record previously made as defined in § 102.68. Materials other than those set out above shall not be a part of the record.
(ii) Record in case with no hearing. In a proceeding pursuant to this section in which no hearing is held, the record shall consist of the objections to the conduct of the election or to conduct affecting the results of the election, any decision on objections or on challenged ballots and any request for review of such a decision, any documentary evidence, excluding statements of witnesses, relied upon by the Regional Director in his decision, any briefs or other legal memoranda submitted by the parties, and any other motions, rulings, or orders of the Regional Director. Materials other than those set out above shall not be a part of the record, except as provided in paragraph (d)(3) of this section.
(2) Immediately upon issuance of an order granting a request for review by the Board, the Regional Director shall transmit to the Board the record of the proceeding as defined in paragraph (d)(1) of this section.
(3) In a proceeding pursuant to this section in which no hearing is held, a party filing a request for review of a Regional Director's decision on challenged ballots or on objections or on both, or any opposition thereto, may support its submission to the Board by appending thereto copies of any offer of proof, including copies of any affidavits or other documentary evidence, it has timely submitted to the Regional Director and which were not included in the decision. Documentary evidence so appended shall thereupon become part of the record in the proceeding. Failure to append that evidence to its submission to the Board in the representation proceeding as provided above, shall preclude a party from relying on such evidence in any subsequent unfair labor proceeding.
(e) Revised tally of ballots. In any case under this section in which the Regional Director or the Board, upon a ruling on challenged ballots, has directed that such ballots be opened and counted and a revised tally of ballots issued, and no objection to such revised tally is filed by any party within 5 business days after the revised tally of ballots has been made available, the Regional Director shall forthwith issue to the parties certification of the results of the election, including certifications of representative where appropriate, with the same force and effect as if issued by the Board.
(f) Format of filings with Regional Director. All documents filed with the Regional Director under the provisions of this section shall be filed double spaced, on 8 1/2 - by 11-inch paper, and shall be printed or otherwise legibly duplicated. Extra copies of electronically-filed papers need not be filed. Briefs in support of exceptions or answering briefs shall not exceed 50 pages in length, exclusive of subject index and table of cases and other authorities cited, unless permission to exceed that limit is obtained from the Regional Director by motion, setting forth the reasons therefor, filed pursuant to the procedures set forth in § 102.2(c). Where any brief filed pursuant to this section exceeds 20 pages, it shall contain a subject index with page references and an alphabetical table of cases and other authorities cited.
(g) Extensions of time. Requests for extensions of time to file exceptions, requests for review, supporting briefs, or answering briefs, as permitted by this section, shall be filed pursuant to § 102.2(c) with the Board or the Regional Director, as the case may be. The party filing the request for an extension of time shall serve a copy thereof on the other parties and, if filed with the Board, on the Regional Director. A statement of such service shall be filed with the document.
(h) Final Disposition. For the purposes of filing a request for review pursuant to § 102.67(c) or to paragraph (c)(2) of this section, a case is considered to have reached final disposition when the Regional Director dismisses the petition or issues a certification of results (including, where appropriate, a certification of representative).
§ 102.70   Runoff election.
(a) The regional director shall conduct a runoff election, without further order of the Board, when an election in which the ballot provided for not less than three choices (i.e., at least two representatives and “neither”) results in no choice receiving a majority of the valid ballots cast and no objections are filed as provided in § 102.69. Only one runoff shall be held pursuant to this section.
(b) Employees who were eligible to vote in the election and who are in an eligible category on the date of the runoff election shall be eligible to vote in the runoff election.
(c) The ballot in the runoff election shall provide for a selection between the two choices receiving the largest and second largest number of votes.
(d) In the event the number of votes cast in an inconclusive election in which the ballot provided for a choice among two or more representatives and “neither” or “none” is equally divided among the several choices; or in the event the number of ballots cast for one choice in such election is equal to the number cast for another of the choices but less than the number cast for the third choice, the regional director shall declare the first election a nullity and shall conduct another election, providing for a selection from among the three choices afforded in the original ballot; and he shall thereafter proceed in accordance with paragraphs (a), (b), and (c) of this section. In the event two or more choices receive the same number of ballots and another choice receives no ballots and there are no challenged ballots that would affect the results of the election, and if all eligible voters have cast valid ballots, there shall be no runoff election and a certification of results of election shall be issued. Only one such further election pursuant to this paragraph may be held.
(e) Upon the conclusion of the runoff election, the provisions of § 102.69 shall govern, insofar as applicable.
§ 102.71   Dismissal of petition; refusal to proceed with petition; requests for review by the Board of action of the Regional Director.
(a) If, after a petition has been filed and at any time prior to the close of hearing, it shall appear to the Regional Director that no further proceedings are warranted, the Regional Director may dismiss the petition by administrative action and shall so advise the petitioner in writing, setting forth a simple statement of the procedural or other grounds for the dismissal, with copies to the other parties to the proceeding. Any party may obtain a review of such action by filing a request therefor with the Board in Washington, DC, in accordance with the provisions of paragraph (c) of this section. A request for review from an action of a Regional Director pursuant to this subsection may be granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because of:
(i) The absence of; or
(ii) A departure from, officially reported Board precedent.
(2) There are compelling reasons for reconsideration of an important Board rule or policy.
(3) The request for review is accompanied by documentary evidence previously submitted to the Regional Director raising serious doubts as to the Regional Director's factual findings, thus indicating that there are factual issues which can best be resolved upon the basis of the record developed at a hearing.
(4) The Regional Director's action is, on its face, arbitrary or capricious.
(5) The petition raises issues which can best be resolved upon the basis of a record developed at a hearing.
(b) Where the Regional Director dismisses a petition or directs that the proceeding on the petition be held in abeyance, and such action is taken because of the pendency of concurrent unresolved charges of unfair labor practices, and the Regional Director, upon request, has so notified the parties in writing, any party may obtain a review of the Regional Director's action by filing a request therefor with the Board in Washington, DC, in accordance with the provisions of paragraph (c) of this section. A review of an action of a Regional Director pursuant to this subsection may be granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because of:
(i) The absence of; or
(ii) A departure from, officially reported Board precedent.
(2) There are compelling reasons for reconsideration of an important Board rule or policy.
(3) The Regional Director's action is, on its face, arbitrary or capricious.
(c) A request for review must be filed with the Board in Washington, DC, and a copy filed with the Regional Director and copies served on all the other parties within 10 business days of service of the notice of dismissal or notification that the petition is to be held in abeyance. The request shall contain a complete statement setting forth facts and reasons upon which the request is based. The request shall be printed or otherwise legibly duplicated. Extra copies of electronically-filed papers need not be filed. The request must comply with the formatting requirements set forth in § 102.67(i)(1). Requests for an extension of time within which to file the request for review shall be filed pursuant to § 102.2(c) with the Board in Washington, DC, and a certificate of service shall accompany the requests.
(d) Any party may, within 5 business days after the last day on which the request for review must be filed, file with the Board a statement in opposition to the request for review. An opposition must be filed with the Board in Washington, DC, and a copy filed with the Regional Direction and copies served on all the other parties. The opposition must comply with the formatting requirements set forth in § 102.67(i)(1). Requests for an extension of time within which to file the opposition shall be filed pursuant to § 102.2(c) with the Board in Washington, DC, and a certificate of service shall accompany the requests. The Board may grant or deny the request for review without awaiting a statement in opposition. No reply to the opposition may be filed except upon special leave of the Board.
§ 102.72   Filing petition with general counsel: investigation upon motion of general counsel; transfer of petition and proceeding from region to general counsel or to another region; consolidation of proceedings in same region; severance; procedure before general counsel in cases over which the general counsel has assumed jurisdiction.
(a) Whenever it appears necessary in order to effectuate the purposes of the Act, or to avoid unnecessary costs or delay, the General Counsel may permit a petition to be filed with him/her in Washington, DC, or may, at any time after a petition has been filed with a Regional Director pursuant to § 102.60, order that such petition and any proceeding that may have been instituted with respect thereto:
(1) Be transferred to and continued before him/her, for the purpose of investigation or consolidation with any other proceeding which may have been instituted in a Regional Office or with him/her; or
(2) Be consolidated with any other proceeding which may have been instituted in the same region; or
(3) Be transferred to and continued in any other region, for the purpose of investigation or consolidation with any proceeding which may have been instituted in or transferred to such region; or
(4) Be severed from any other proceeding with which it may have been consolidated pursuant to this section.
(b) The provisions of §§ 102.60 to 102.71, inclusive, shall, insofar as applicable, apply to proceedings before the general counsel pursuant to this section, and the powers granted to regional directors in such provisions shall, for the purpose of this section, be reserved to and exercised by the general counsel. After the transfer of any petition and any proceeding which may have been instituted in respect thereto from one region to another pursuant to this section, the provisions of this subpart shall, insofar as applicable, govern such petition and such proceedings as if the petition has originally been filed in the region to which the transfer was made.
(c) The Regional Director may exercise the powers in paragraphs (a)(2) and (4) of this section with respect to proceedings pending in his/her Region.
§ 102.73   Initiation of proceedings.
Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of Section 8(b)(7) of the Act, the Regional Director will investigate such charge, giving it the priority specified in subpart H of this part.
§ 102.74   Complaint and formal proceedings.
If it appears to the Regional Director that the charge has merit, formal proceedings will be instituted in accordance with the procedures described in §§ 102.15 through 102.51, insofar as they are applicable, and insofar as they are not inconsistent with the provisions of this subpart. If it appears to the Regional Director that issuance of a complaint is not warranted, the Director will decline to issue a complaint, and the provisions of § 102.19, including the provisions for appeal to the General Counsel, are applicable unless an election has been directed under §§ 102.77 and 102.78, in which event the provisions of § 102.81 are applicable.
§ 102.75   Suspension of proceedings on the charge where timely petition is filed.
If it appears to the Regional Director that issuance of a complaint may be warranted but for the pendency of a petition under Section 9(c) of the Act, which has been filed by any proper party within a reasonable time not to exceed 30 days from the commencement of picketing, the Regional Director will suspend proceedings on the charge and will proceed to investigate the petition under the expedited procedure provided below, pursuant to the first proviso to subparagraph (C) of Section 8(b)(7) of the Act.
§ 102.76   Petition; who may file; where to file; contents.
When picketing of an employer has been conducted for an object proscribed by Section 8(b)(7) of the Act, a petition for the determination of a question concerning representation of the employees of such employer may be filed in accordance with the provisions of §§ 102.60 and 102.61, insofar as applicable, except that if a charge under § 102.73 has been filed against the labor organization on whose behalf picketing has been conducted, the petition will not be required to contain a statement that the employer declines to recognize the petitioner as the representative within the meaning of Section 9(a) of the Act; or that the union represents a substantial number of employees; or that the labor organization is currently recognized but desires certification under the Act; or that the individuals or labor organizations who have been certified or are currently recognized by the employer are no longer the representative; or, if the petitioner is an employer, that one or more individuals or labor organizations have presented to the petitioner a claim to be recognized as the exclusive representative of the employees in the unit claimed to be appropriate.
§ 102.77   Investigation of petition by Regional Director; directed election.
(a) Where a petition has been filed pursuant to § 102.76 the regional director shall make an investigation of the matters and allegations set forth therein. Any party, and any individual or labor organization purporting to act as representative of the employees involved and any labor organization on whose behalf picketing has been conducted as described in section 8(b)(7)(C) of the Act may present documentary and other evidence relating to the matters and allegations set forth in the petition.
(b) If, after the investigation of such petition or any petition filed under subpart D of this part, and after the investigation of the charge filed pursuant to § 102.73, it appears to the Regional Director that an expedited election under Section 8(b)(7)(C) of the Act is warranted, and that the policies of the Act would be effectuated thereby, the Regional Director shall forthwith proceed to conduct an election by secret ballot of the employees in an appropriate unit, or make other disposition of the matter, except that in any case in which it appears to the Regional Director that the proceeding raises questions which cannot be decided without a hearing, the Director may issue and cause to be served on the parties, individuals, and labor organizations involved a Notice of Hearing before a Hearing Officer at a time and place fixed therein. In this event, the method of conducting the hearing and the procedure following, shall be governed insofar as applicable by §§ 102.63 through 102.68.
§ 102.78   Election procedure; method of conducting balloting; postballoting procedure.
If no agreement such as that provided in § 102.79 has been made, the regional director shall fix the time and place of the election, eligibility requirements for voting, and other arrangements for the balloting. The method of conducting the balloting and the postballoting procedure shall be governed, insofar as applicable, by the provisions of §§ 102.69 and 102.70 except that the labor organization on whose behalf picketing has been conducted may not have its name removed from the ballot without the consent of the regional director and except that the regional director's rulings on any objections or challenged ballots shall be final unless the Board grants special permission to appeal from the regional director's rulings. Any request for such permission shall be filed promptly, in writing, and shall briefly state the grounds relied upon. The party requesting review shall immediately serve a copy thereof on each other party. A request for review shall not operate as a stay of the regional director's rulings unless so ordered by the Board.
§ 102.79   Consent-election agreements.
Where a petition has been duly filed, the parties involved may, subject to the approval of the regional director, enter into an agreement governing the method of conducting the election as provided for in § 102.62(a), insofar as applicable.
§ 102.80   Dismissal of petition; refusal to process petition under expedited procedure.
(a) If, after a petition has been filed pursuant to the provisions of § 102.76, and prior to the close of the hearing, it shall appear to the regional director that further proceedings in respect thereto in accordance with the provisions of § 102.77 are not warranted, he may dismiss the petition by administrative action, and the action of the regional director shall be final, subject to a prompt appeal to the Board on special permission which may be granted by the Board. Upon such appeal the provisions of § 102.71 shall govern insofar as applicable. Such appeal shall not operate as a stay unless specifically ordered by the Board.
(b) If it shall appear to the regional director that an expedited election is not warranted but that proceedings under subpart C of this part are warranted, he/she shall so notify the parties in writing with a simple statement of the grounds for his/her decision.
(c) Where the regional director, pursuant to §§ 102.77 and 102.78, has determined that a hearing prior to election is not required to resolve the issues raised by the petition and has directed an expedited election, any party aggrieved may file a request with the Board for special permission to appeal from such determination. Such request shall be filed promptly, in writing, and shall briefly state the grounds relied upon. The party requesting such appeal shall immediately serve a copy thereof on each other party. Should the Board grant the requested permission to appeal, such action shall not, unless specifically ordered by the Board, operate as a stay of any action by the regional director.
§ 102.81   Review by the general counsel of refusal to proceed on charge; resumption of proceedings upon charge held during pendency of petition; review by the general counsel of refusal to proceed on related charge.
(a) Where an election has been directed by the Regional Director or the Board in accordance with the provisions of §§ 102.77 and 102.78, the Regional Director shall decline to issue a complaint on the charge, and he/she shall so advise the parties in writing, accompanied by a simple statement of the procedural or other grounds for his/her action. The person making the charge may obtain a review of such action by filing an appeal with the general counsel in Washington, DC, and filing a copy of the appeal with the regional director, within 7 days from the service of the notice of such refusal by the regional director. In all other respects the appeal shall be subject to the provisions of § 102.19. Such appeal shall not operate as a stay of any action by the regional director.
(b) Where an election has not been directed and the petition has been dismissed in accordance with the provisions of § 102.80, the regional director shall resume investigation of the charge and shall proceed in accordance with § 102.74.
(c) If in connection with an 8(b)(7) proceeding, unfair labor practice charges under other sections of the Act have been filed and the Regional Director upon investigation has declined to issue a complaint upon such charges, he/she shall so advise the parties in writing, accompanied by a simple statement of the procedural or other grounds for his/her action. The person making such charges may obtain a review of such action by filing an appeal with the general counsel in Washington, DC, and filing a copy of the appeal with the regional director, within 7 days from the service of the notice of such refusal by the regional director. In all other respects the appeal shall be subject to the provisions of § 102.19.
§ 102.82   Transfer, consolidation, and severance.
The provisions of §§ 102.33 and 102.72, respecting the filing of a charge or petition with the general counsel and the transfer, consolidation, and severance of proceedings, shall apply to proceedings under this subpart, except that the provisions of §§ 102.73 to 102.81, inclusive, shall govern proceedings before the general counsel.
§ 102.83   Petition for referendum under Section 9(e)(1) of the Act; who may file; where to file; withdrawal.
A petition to rescind the authority of a labor organization to make an agreement requiring as a condition of employment membership in such labor organization may be filed by an employee or group of employees on behalf of 30 percent or more of the employees in a bargaining unit covered by such an agreement. The petition shall be in writing and signed, and either must be sworn to before a notary public, Board agent, or other person duly authorized by law to administer oaths and take acknowledgments or must contain a declaration by the person signing it, under the penalties of the Criminal Code, that its contents are true and correct to the best of his/her knowledge and belief. One original of the petition must be filed with the Regional Director wherein the bargaining unit exists or, if the unit exists in two or more Regions, with the Regional Director for any of such Regions. A person filing a petition by facsimile must also file an original for the Agency's records, but failure to do so must not affect the validity of the filing by facsimile, if otherwise proper. A person filing a petition electronically need not file an original. The petition may be withdrawn only with the approval of the Regional Director with whom such petition was filed. Upon approval of the withdrawal of any petition the case will be closed.
§ 102.84   Contents of petition to rescind authority.
(a) The name of the employer.
(b) The address of the establishments involved.
(c) The general nature of the employer's business.
(d) A description of the bargaining unit involved.
(e) The name and address of the labor organization whose authority it is desired to rescind.
(f) The number of employees in the unit.
(g) Whether there is a strike or picketing in progress at the establishment involved and, if so, the approximate number of employees participating, and the date such strike or picketing commenced.
(h) The date of execution and of expiration of any contract in effect covering the unit involved.
(i) The name and address of the petitioner, and the name, title, address, telephone number, facsimile number, and email address of the individual who will serve as the representative of the petitioner and accept service of all papers for purposes of the proceeding.
(j) A statement that 30 percent or more of the bargaining unit employees covered by an agreement between their employer and a labor organization made pursuant to Section 8(a)(3) of the Act, desire that the authority to make such an agreement be rescinded.
(k) Any other relevant facts.
(l) Evidence supporting the statement that 30 percent or more of the bargaining unit employees desire to rescind the authority of their employer and labor organization to enter into an agreement made pursuant to Section 8(a)(3) of the Act. Such evidence must be filed together with the petition, but must not be served on any other party.
(m) Evidence filed pursuant to paragraph (l) of this section together with a petition that is filed by facsimile or electronically, which includes original signatures that cannot be transmitted in their original form by the method of filing of the petition, may be filed by facsimile or in electronic form provided that the original documents are received by the regional director no later than 2 days after the facsimile or electronic filing.
(n) The type, date(s), time(s) and location(s) of the election sought.
§ 102.85   Investigation of petition by Regional Director; consent referendum; directed referendum.
Where a petition has been filed pursuant to § 102.83, and it appears to the Regional Director that the petitioner has made an appropriate showing, in such form as the Regional Director may determine, that 30 percent or more of the employees within a unit covered by an agreement between their employer and a labor organization requiring membership in such labor organization desire to rescind the authority of such labor organization to make such an agreement, the Regional Director will proceed to conduct a secret ballot of the employees involved on the question whether they desire to rescind the authority of the labor organization to make such an agreement with their employer, except that, in any case in which it appears to the Regional Director that the proceeding raises questions which cannot be decided without a hearing, the Director may issue and cause to be served on the parties a Notice of Hearing before a Hearing Officer at a time and place fixed therein. The Regional Director will fix the time and place of the election, eligibility requirements for voting, and other arrangements of the balloting, but the parties may enter into an agreement, subject to the approval of the Regional Director, fixing such arrangements. In any such consent agreements, provision may be made for final determination of all questions arising with respect to the balloting by the Regional Director or upon grant of a request for review, by the Board.
§ 102.86   Hearing; posthearing procedure.
The method of conducting the hearing and the procedure following the hearing will be governed, insofar as applicable, by §§ 102.63 through 102.68.
§ 102.87   Method of conducting balloting; postballoting procedure.
The method of conducting the balloting and the postballoting procedure will be governed by the provisions of § 102.69, insofar as applicable.