This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

40911

Vol. 62, No. 147

Thursday, July 31, 1997

FEDERAL LABOR RELATIONS

AUTHORITY

5 CFR Parts 2423 and 2429

Unfair Labor Practice Proceedings:

Miscellaneous and General

Requirements

AGENCY: Federal Labor Relations

Authority.

ACTION: Final rule.

SUMMARY: The Federal Labor Relations

Authority amends portions of its

regulations regarding unfair labor

practice (ULP) proceedings (Part 2423)

and miscellaneous and general

requirements (Part 2429). The

amendments are designed to streamline

the existing regulations, facilitate

dispute resolution, clarify the matters to

be adjudicated, provide more flexibility

to the participants in the ULP process,

simplify the filing and service

requirements, and promote confidence

in ULP proceedings. Implementation of

these changes enhances the ULP

process, by raising the level of advocacy

and assisting in the adjudication and

resolution of ULP claims.

EFFECTIVE DATE: October 1, 1997.

ADDRESSES: Written comments received

are available for public inspection

during normal business hours at the

Office of Case Control, Federal Labor

Relations Authority, 607 14th Street,

NW., Washington, DC 20424–0001.

FOR FURTHER INFORMATION CONTACT:

Peter Constantine, Office of Case

Control, at the address listed above or

by telephone # (202) 482–6540.

SUPPLEMENTARY INFORMATION:

Background

The Federal Labor Relations

Authority proposed revisions to Part

2423 of its regulations addressing unfair

labor practice (‘‘ULP’’) proceedings, as

well as to related miscellaneous and

general requirements located at Part

2429 of its regulations. The proposed

rule was published in the Federal

Register and public comment was

solicited on the proposed changes (62

FR 28378) (May 23, 1997). Prior to

proposing the rule, the Federal Labor

Relations Authority established a task

force to evaluate the policies and

procedures concerning the processing of

an unfair labor practice complaint. The

task force conducted focus groups and

invited the public to submit written

recommendations on ways to improve

the post complaint ULP process (60 FR

11057) (Mar. 1, 1995).

Concurrent with issuing the proposed

rule, the Authority invited comment on

the proposed rule in two ways: by

convening focus group meetings, in June

1997 in Chicago, IL and in Washington,

DC, and by offering the public an

opportunity to submit written

comments. All comments, whether

expressed orally in a focus group or

submitted in writing, have been

considered prior to publishing the final

rule, although all comments are not

specifically addressed in the section-bysection analysis, below. Revisions to the

proposed rule are driven for the most

part by suggestions and comments

received from the public.

One commenter stated that in order to

ensure that serious consideration was

afforded to suggested revisions, the

regulations should not be finalized until

a lengthy time period after the close of

the comment period. The process of

revising the Authority’s ULP regulations

has been anything but precipitous. On

the contrary, publication of the final

rule marks the culmination of years of

careful consideration of how to better

the ULP process. The Authority has

afforded full consideration to the advice

offered by commenters. The

improvements these essential and

needed changes bring to the ULP

process should be implemented without

further delay.

Those commenters who suggested

changes to subpart A of part 2423 are

reminded that it will be revised during

1998. As a result, comments concerning

subpart A (Filing, Investigating,

Resolving, and Acting on Charges) will

not be addressed at this time.

Sectional Analyses

Sectional analyses of the amendments

and revisions to Part 2423—Unfair

Labor Practice Proceedings and Part

2429—Miscellaneous and General

Requirements are as follows:

Part 2423—Unfair Labor Practice

Proceedings

Section 2423.1—Final rule is

amended to reflect the October 1, 1997

effective date of subparts B, C, and D of

this part.

Subpart A—Filing, Investigating,

Resolving, and Acting on Charges

Sections 2423.2–2423.11—Final rule

as promulgated is the same as proposed

rule.

Sections 2423.12–2423.19—These

sections are reserved.

Subpart B—Post Complaint, Prehearing

Procedures

Section 2423.20—Numerous

commenters responded favorably to the

transfer of various functions from the

Regional Director to the Office of the

Administrative Law Judge reflected in

this and subsequent sections.

Commenters acknowledged that this

transfer promoted confidence in the

system by properly recognizing the

distinctions between prosecutorial and

adjudicatory responsibilities.

One proposed change, having both

support and opposition, was the

proposal in paragraph (a) that the

complaint specifically set out the ‘‘relief

sought.’’ Those in favor of this change

believed that this requirement would

clarify issues and notify the charged

parties of what was being requested of

them. Those opposed contended that

such a pleading requirement could

hinder settlement and might be

interpreted as placing a ceiling upon the

remedy that ultimately could be

awarded in the case. It was suggested

that this pleading requirement would

lead to complaints listing every

conceivable remedy or, alternatively,

multiple amendments of the complaint.

Suggesters recommended a less onerous

pleading requirement, such as requiring

the pleading of only non-traditional

remedies, in order to avoid ‘‘locking’’

the parties into positions that would

jeopardize settlement discussions.

In addressing these concerns, the final

regulation eliminates the requirement to

plead the remedy sought in the

complaint, but instead requires

disclosing the relief sought prior to the

hearing pursuant to § 2423.23. This

modification was made in order to

effectuate the underlying goal of
40912 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

providing notice and clarification to the

respondent, while, at the same time,

allowing the parties the freedom to

pursue resolution of the complaint

without having established positions

concerning the remedy desired.

It was suggested that ‘‘affirmative

defenses’’ be made a part of the

respondent’s answer. Along these lines,

one commenter suggested an

amendment that any affirmative

defenses not raised in the answer would

be waived. On the other hand, one

commenter indicated that even a ‘‘no

comment’’ answer from a respondent

should be an acceptable reply, at least

until the General Counsel had proven

his or her case. The final regulation

remains unchanged, in this regard, from

the proposed rule, requiring only that

the respondent either admit, deny or

explain allegations contained in the

complaint. In seeking to balance the

respective interests, the final rule treats

the respondent’s obligation to set out

affirmative defenses in the same way

that it addresses the General Counsel’s

obligation to describe the relief sought.

As a result, at the prehearing disclosure

stage, governed by § 2423.23, the

respondent will be required to set forth

any and all defenses. The regulation

thus should serve the underlying goal of

putting the parties on notice as to what

the defenses are, without requiring more

than is necessary in the answer itself. As

the previous paragraph indicates, the

interests of all parties are served by

having the remedies and defenses set

forth at the prehearing stage.

One commenter suggested that the

Authority include a sentence in

paragraphs (a) and (b) regarding the

service and filing requirements. As

stated in the proposed rule and

unchanged in the final rule, all

pleadings are subject to the filing and

service requirements of part 2429 of the

subchapter.

One commenter noted that in unusual

circumstances, a hearing might begin

less than 20 days after service of the

complaint. In such cases, under the

regulation as proposed, the answer

would not have been filed and served

prior to the beginning of the hearing.

Paragraphs (b) and (c) have been revised

to respond to this contingency and

provide that the answer, and any

amendments to the answer, must be

filed and served, in any event, prior to

the beginning of the hearing.

Paragraph (d) has been changed to

note that the terms ‘‘Administrative Law

Judge’’ and ‘‘Judge’’ are synonymous for

the purposes of subparts B, C, and D.

Section 2423.21—Commenters

favored the filing of motions with the

Judge rather than with the Regional

Director, as was required under the

prior regulations. In response to

commenters’ concerns regarding the

prehearing time deadlines set forth in

the proposed rules (for prehearing

disclosure, motions, and subpoenas),

time deadlines are changed throughout

the final rule. The final rule changes the

time for filing of motions from 15 days

before or after the specified event to 10

days. For prehearing motions, this 10-

day prior to hearing deadline retains the

same number of days as the current rule

(5 CFR 2423.22(a)). The time for

responses is unchanged. It is also

noteworthy that the Judge has the

authority to vary the timeliness

provisions governing the filing of

motions as necessary to meet the needs

of a given case.

One commenter wanted to verify that

all motions, including motions for

summary judgment, are subject to filing

and service requirements of part 2429.

To ensure that this is understood, the

last sentence of paragraph (a) has been

clarified.

Paragraph (b) of this section has been

subdivided into four parts in order to

accommodate suggestions of

commenters. As a result, the final

regulation clarifies that responses to

motions made during the hearing shall

be made prior to the close of hearing,

unless otherwise directed by the Judge,

and that motions to correct the

transcript shall be filed within 10 days

of receiving the transcript, rather than

within 15 days of hearing. Subsection

(c) also now states that responses to

motions filed with the Authority shall

be filed within 5 days after service of

the motion.

The reference to § 2429.11 in

paragraph (d) has been changed to

§ 2423.31(c) as a result of the relocation

of the unfair labor practice interlocutory

appeals procedures to part 2423.

Section 2423.22—Final rule as

promulgated is the same as proposed

rule.

Section 2423.23—Most commenters

favored early disclosure of information

prior to hearing, believing that such an

exchange would facilitate an early

resolution of cases and avert ‘‘trial by

ambush.’’ One commenter disagreed,

stating that early exchange of

information would not lead to earlier

resolution via settlements; was

unnecessary because the parties already

generally know what evidence and

arguments others in the case will offer;

and would require extensive prehearing

preparation far in advance of the date of

hearing. Having carefully considered

these opinions, the Authority continues

to view prehearing disclosure as an

important device that will facilitate

dispute resolution and clarify the

matters to be adjudicated. The parties

are more likely to resolve disputes

earlier in the ULP process if they are

obliged to focus on their own and their

opponents’ evidence and theory of the

case in advance of the hearing. By

settling earlier, the Authority, the

parties, and the witnesses avoid

expending resources by preparing for

and traveling to trials that are averted by

settlement on the courthouse steps. On

the other hand, if the dispute is not

settled, early prehearing disclosure will

enable the parties to knowledgeably and

more efficiently prepare their cases

without having to guess what evidence

or theories others in the litigation will

offer.

As noted in the comment to § 2423.21,

several commenters suggested that the

time deadlines in the proposed

regulations should be modified. With

regard to the number of days prior to the

hearing that information is disclosed,

although some favored the proposed 21

days, others asserted that 21 days was

insufficient, and still others stated that

21 days was too far in advance of the

hearing. One commenter suggested that

disclosure should be 7 days prior to the

prehearing conference. Suggestions to

lengthen the time have been rejected

because such a change would unduly

increase the time prior to the hearing

during which the parties would have to

devote resources to case preparation.

However, recommendations to truncate

the period between disclosure and the

hearing have been adopted.

The final rule changes the prescribed

disclosure period from 21 to 14 days.

Changing the time to 14 days will still

allow for timely illumination of strategy

concerning other prehearing activities,

e.g., subpoenas or motions, as those

time deadlines also have been adjusted

based upon the change in the time for

information disclosure. The 14-day

deadline should also allay some

commenters’ concerns regarding

prehearing administrative burdens and

the potential that information will be

unnecessarily prepared and exchanged

in cases that may well be resolved

before hearing.

As noted earlier in commentary

concerning § 2423.21, if 14 days is not

deemed an appropriate time to exchange

information in a given case, a party may

move the Judge, pursuant to

§ 2423.24(c)(1)(ii), to change the

disclosure date or any other prehearing

dates where appropriate. The final

regulation has only established 14 days

as the time period that will be

controlling absent the changing of the

time line by the Judge.
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40913

In response to queries about the

meaning of the term ‘‘shall exchange,’’

the final regulations indicate that parties

shall serve the documents on any other

party in accordance with § 2429.27(b).

This should clarify both acceptable

methods of exchange and the fact that

all parties—the General Counsel, the

Respondent, and the Charging Party—

are required to disclose and be served.

With respect to such information,

several commenters suggested that the

Judge be served along with the parties,

and that copies served on the Judge be

made exhibits at hearing. The final

regulation declines to provide for

service to the Judge for the reason that

disclosure is intended to put the parties

on notice and not to create a record of

the information exchanged in

disclosure. The Judge will thus not need

to review the information exchanged

unless there is a dispute over disclosure,

which would normally be handled at

the prehearing conference, pursuant to

§ 2423.24(d).

As prompted by suggestions, the

language relating to disclosure of

documents has been modified to reflect

that it only includes documents

proposed to be offered into evidence.

Thus, the requirement for document

disclosure in paragraph (b) mirrors the

requirement for witness disclosure in

paragraph (a) in that both now refer to

disclosing proposed lists of both

witnesses and documents.

One commenter questioned the

meaning of the requirement to disclose

‘‘synopsis of testimony,’’ suggesting that

this phrase could be subjected to

different interpretations, e.g., the facts

about which the witness would testify,

a summary of the testimony the witness

would offer, or the allegation(s) in the

complaint the witness would address.

The first two examples would satisfy the

‘‘synopsis of testimony’’ requirement,

but the third would be insufficient

because it would not disclose the

substance of the expected testimony.

One commenter suggested that in

addition to the synopsis of testimony, a

witness’s prehearing statements should

also be exchanged prior to the hearing.

The final regulation declines to adopt, at

this time, this suggested addition to the

disclosure requirement; instead, until

this matter is fully litigated, the

Authority will maintain the rule

presently in effect governing release of

prehearing statements. Under longsettled current law, and pursuant to the

Jencks Rule (Jencks v. United States, 353

U.S. 657 (1957)), a written statement

previously obtained prior to the hearing

is disclosable for the purpose of crossexamination after the witness has

testified. Department of Treasury,

Internal Revenue Service, Memphis

Service Center, 16 FLRA 687 (1984). Of

course, under the final rule, if parties

have taken a statement from a witness

and intend to introduce the written

statement itself into evidence, such a

statement will have to be disclosed in

advance of the hearing pursuant to

paragraph (b).

Some commenters recommended that

the regulations specify the

consequences for failing to comply with

disclosure requirements. The final rule

does not adopt this suggestion, but

instead reserves to the Judge’s discretion

the power to impose sanctions in

appropriate cases. Offering the Judge

such discretion answers the concern of

one commenter that sanctions would

too often be levied against

unsophisticated parties. The expectation

is that the Judge will exercise prudence,

consider all relevant factors, and impose

appropriate sanctions when parties fail

to act in good faith in meeting their

respective prehearing disclosure

obligations.

Finally, in response to suggestions,

three changes have been made to

paragraph (c). First, and as noted earlier,

the final rule adds the relief sought to

the information that must be disclosed

14 days prior to the hearing. Second, the

word ‘‘charges’’ has been replaced with

the more appropriate phrase

‘‘allegations in the complaint.’’ Third,

several commenters noted that the

requirement to disclose citations relied

upon in support of a theory of the case

or a defense is overly broad and could

be interpreted to prevent a party from

relying on a case precedent at a later

stage in the litigation if the case was not

exchanged in disclosure. The final

regulation has been modified to delete

the requirement that parties list

citations to precedent.

Section 2423.24—Language has been

added into paragraphs (b), (c), and (e) to

reflect that the changing of hearing date

or place, the issuing of a prehearing

order, and imposition of sanctions may

be ordered either by the Judge in his or

her discretion, or on the motion of a

party.

The final rule does not accept the

recommendation of a commenter that

paragraph (b) of the regulation recognize

the authority of the Regional Director to

order a change in the date, time, or

place of the hearing when directed by

the Judge. Any orders making such

changes must be issued by the Judge.

Commenters generally, with one

exception, favored prehearing

conferences; one commenter suggested

requiring prehearing conferences in

every case. The Authority has

concluded that at this time it is not

necessary to mandate a prehearing

conference in every case. As a result, the

final rule in paragraph (d) retains the

procedure that was proposed, with the

Judge scheduling and conducting a

conference at least 7 days before the

hearing unless the Judge determines that

a conference is not necessary and no

party has moved for a prehearing

conference. This process for the holding

of prehearing conferences will be

monitored; if it proves unwieldy, it will

be altered. Many commenters objected

to the Judge having the authority to

assign one of the parties to draft a

summary of the prehearing conference.

This objection has been accommodated

in the final regulations; thus, when a

summary of a conference is necessary, it

will be prepared and filed in the record

by the Judge. In response to a

commenter’s suggestion, paragraph

(d)(4) has been broadened to clarify that

petitions to revoke subpoenas are a

matter that may be considered at a

prehearing conference.

Several commenters suggested that

the Judge’s sanction authority should be

more expressly regulated. As noted in

the commentary concerning § 2423.23,

the final rule on sanctions does not

establish specific penalties and

procedures, opting instead to leave

these matters to the discretion of the

Judge. However, paragraph (e) has been

clarified to reflect that an important

purpose of sanctions is to ensure that a

party’s failing to comply with subpart B

or C is not condoned. Also, in paragraph

(e)(1), theories of violation, specific

relief, and specific defenses have been

included among the examples of items

that a party may be precluded from

pursuing if that party has failed to

satisfy prehearing obligations.

Section 2423.25—One commenter

suggested that implementation of an

informal settlement be stayed pending

the appeal by a charging party who

objected to the settlement between the

Regional Director and the respondent.

Since this is already the practice under

the current regulation, which has not

been substantively altered by the

proposed rule change, it does not appear

necessary that stays be regulated by the

final rule.

The settlement judge program, set out

in paragraph (d), was favored, with

commenters believing it will increase

chances of settlement and reduce

unnecessary litigation expense. Three

suggestions have been incorporated in

the final rule. First, the word ‘‘informal’’

has been stricken from the last sentence

in the introductory paragraph, thus

permitting a settlement official to

conduct negotiations for any type of

settlement. Second, the final rule has
40914 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

been modified to clarify that

information derived from settlement

discussions will be inadmissible rather

than confidential; thus, the final rule

does not preclude the parties from

discussing settlement. Third, the

proposed paragraph (3), as modified,

has been subdivided into two separate

paragraphs.

Section 2423.26—Responding to a

concern that motions for stipulations

will add an additional step and time to

the process, the final rule provides that

such motions will be ruled upon

expeditiously. The final rule also notes

that individual briefs are required and

must be filed within 30 days of the

filing of the joint motion.

In response to suggestions, the final

rule clarifies when stipulations to the

Authority will be permitted. One

commenter suggested that stipulations

to the Authority be permitted when a

United States Court of Appeals has

already ruled on the legal issue in the

case. It might well be that a motion to

stipulate would be granted in such a

case; however, it is not clear that a

recommended decision of the Judge

would be of no assistance in the

resolution of every case falling into this

category—especially if the Authority

had not had an opportunity to consider

the court’s decision. Instead, the final

rule permits stipulations when an

adequate basis for application of

established precedent exists. The final

rule also provides the Authority

discretion to grant the motion to

stipulate in unusual circumstances.

Lastly, and also in response to

comment, paragraph (d) has been added

to the section noting that once a motion

to stipulate has been granted, the

Authority will adjudicate the case based

upon the information in the stipulation

and the briefs. It is anticipated that this

provision will enable the Authority to

avoid remanding cases to the parties for

additions to the stipulation.

Section 2423.27—Most comments

noted that codification of the summary

judgment procedures should promote

judicial economy.

As noted earlier, motions for

summary judgment, like all written

motions, are subject to the requirements

of § 2423.21. In keeping with the time

deadline changes in that section, the

time for filing motions for summary

judgment has changed from 15 days to

10 days prior to the hearing. In order to

ensure that summary judgment motions

do not interfere with the overall post

complaint process, responses to motions

for summary judgment must be filed

within 5 days after the date of service

of the motion instead of 10 days after

service.

In response to a concern that such

motions must, in every case, be filed at

least 10 days prior to hearing, the final

rule permits, with the approval of the

Judge, motions for summary judgment

to be filed less than 10 days in advance

of the hearing. One commenter

suggested that a party moving for

summary judgment shortly in advance

of a hearing be required to move for a

postponement of the hearing so that

those opposing the summary judgment

motion would not be overloaded with

the dual obligations of responding to the

motion and preparing for trial. Although

this suggestion has not been adopted, it

is noted that any party, whether a

movant for or an opponent of a

summary judgment, may move the

Judge to postpone the hearing pending

a ruling on the motion for summary

judgment.

The reference to § 2429.11 in

paragraph (c) has been changed to

§ 2423.31(c) as a result of the relocation

of the unfair labor practice interlocutory

appeals procedures to part 2423.

Section 2423.28—Based upon one

commenter’s suggestion and in

furtherance of unifying the rules

governing the ULP process and ease of

reference, the procedures governing

subpoenas in an unfair labor practice

proceeding have been moved from

§ 2429.7 to this section of the final rule.

This section has been modeled after the

revised § 2429.7 governing subpoena

procedures in other FLRA proceedings.

Also, the time for requesting

subpoenas has been adjusted to

correspond with other prehearing

disclosure deadlines, as discussed in the

commentary concerning §§ 2423.21 and

2423.23. Thus, subpoena requests must

be made not less than 10 days prior to

the hearing, instead of the 15 days in the

proposed regulations.

With regard to the subpoena process,

many commenters suggested that

subpoenas be issued ministerially with

a minimum of involvement by the Judge

in the issuance. The final rule addresses

this concern in paragraph (c) by

providing that subpoena requests filed

with the Office of Administrative Law

Judges will be automatically issued on

an ex parte basis. The requesting party

will be responsible for completion of the

subpoena form and service of the

subpoena. This change should avoid

delays in issuing subpoenas and

eliminate the potential problems of a

Judge having to revisit a previous

decision to issue a subpoena when a

petition to revoke is filed.

In response to concerns about service,

language has been added defining

proper ‘‘service’’ for the subpoena. In

the final rule, the process for service of

a subpoena is different from the general

service provisions of part 2429, in that

registered or certified mail or personal

delivery is required.

Section 2423.29—This section is

reserved.

Subpart C—Hearing Procedures

Section 2423.30—Paragraph (b) has

been edited for clarity in the final rule.

Section 2423.31—The final sentence

in paragraph (a) has been edited for

clarity in the final rule.

One commenter suggested that the

last sentence in paragraph (b) could be

interpreted as precluding a Judge from

following the rules of evidence. This is

neither the meaning nor intent of the

sentence. The last sentence in paragraph

(b) should be read in context of the

entire paragraph. As such, the rules of

evidence are a guide, but do not strictly

govern the proceeding.

The final rule moves procedures

governing interlocutory appeals from

§ 2429.11 to paragraph (c) of this

section. This reorganization has been

accomplished for the same reasons

referenced in the commentary to the

newly established § 2423.28, i.e.,

unifying unfair labor practice rules and

ease of reference. Although provisions

governing interlocutory appeals have

been located in subpart C, which

governs hearing procedures, these

procedures would be equally applicable

if a party were to challenge a prehearing

determination of the Judge.

Substantively, one commenter

suggested that the regulation require

that the hearing be stayed while the

certified interlocutory appeal is before

the Authority. The final rule does not

mandate such a stay, leaving this matter

to the discretion of the Judge or the

Authority. This flexibility would, in

appropriate circumstances, allow

segregable portions of a hearing to

continue while an interlocutory appeal

proceeded.

Voluminous commentary was

received on the issue of bench

decisions. While commenters

appreciated the availability of such an

option, most objected to the requirement

that parties waive their rights to file

exceptions and to obtain other forms of

review. These concerns should be

alleviated by the modifications

contained in the final rule which is now

denominated as paragraph (d) of this

section. Under the final rule, all of the

parties may jointly move the Judge to

issue an oral bench decision at the close

of the hearing. In filing such a motion,

the parties waive their rights to file a

posthearing brief to the Judge. If the

Judge, relying on judicial discretion,

grants the joint motion, the Judge will
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40915

render an oral decision which shall

satisfy the requirements of

§ 2423.34(a)(1)–(5). Subsequent to the

hearing, the Judge’s oral decision will be

transcribed. This transcription, together

with any supplementary matter the

Judge deems necessary, will be the

written recommended decision which

the Judge shall transmit to the Authority

and serve on the parties. Exceptions to

this recommended decision will be

permitted. In response to queries about

the relevance of ‘‘the public interest’’ to

this process, the final rule has deleted

this phrase.

The last paragraph in the section,

formerly denominated as (d), has been

redesignated as (e) in the final rule.

Section 2423.32—Comment was

received noting that the proposed rule’s

requirement that the respondent have

the burden of establishing defenses

would cause confusion and controversy.

One commenter noted that the

respondent’s burden varies depending

upon the type of case and is not subject

to a generic requirement. It was also

pointed out that a respondent’s burden

is often a ‘‘burden of going forward’’

rather than a ‘‘burden of proof.’’ Noting

these comments, and recognizing that

the General Counsel has and retains the

burden of proof in all cases, the final

rule clarifies that the respondent shall

have the burden of proving any

‘‘affirmative’’ defenses that it raises. Use

of this more specific term serves to

remind the respondent of its burden

concerning certain defenses that it

chooses to raise. This language is not

intended to impose any additional

burden on respondents; rather, it

notifies respondents of their burden

which is established in the case law.

Section 2423.33—The final rule is

modified to account for waiver of the

right to file posthearing briefs when

bench decisions are issued, pursuant to

§ 2423.31(d).

Section 2423.34—In response to

suggestions, summaries of prehearing

conferences, as well as the basis for any

ruling on sanctions, are specifically

made part of the record, in order to

document these matters and to allow the

parties to except to any matter involving

the prehearing conference or sanctions.

Sections 2423.35–2423.39—These

sections are reserved.

Subpart D—Post-transmission and

Exceptions to Authority Procedures

Section 2423.40—The final rule

clarifies in paragraph (a), that a single

document containing both exceptions to

the Judge’s decision and a brief in

support of those exceptions, is

contemplated. The final rule also

expressly explains how separate

arguments for each issue raised are to be

set forth in the exceptions. The page

limitation triggering the table of

contents and legal authorities

requirement has been raised from 20 to

25 pages. Parties should note that

pursuant to § 2429.24(e) and § 2429.25,

standard font sizes (12 point) and

margins (1 inch) will be required.

The section heading and paragraph (b)

have been altered to clarify the time

within which to file oppositions to

cross-exceptions. Commenters approved

of the increased time—20 days—to file

oppositions to exceptions as a valuable

change.

Paragraph (c) has been added

clarifying that reply briefs are not

allowed, absent permission of the

Authority.

Sections 2423.41–2423.42—Final rule

as promulgated is the same as proposed

rule.

Sections 2423.43–2423.49—These

sections are reserved.

Part 2429—Miscellaneous and General

Requirements

Section 2429.1—This section is

removed and reserved.

Section 2429.7—As noted earlier, a

separate section addressing subpoena

process in ULP cases has been

established in part 2423, § 2423.28. This

section establishes subpoena processes

for other Authority proceedings,

pursuant to parts 2422, 2424, and 2425

and generally follows the procedures

established for the issuance and

revocation of subpoenas in ULP cases.

The only significant difference between

this section and the rules established in

§ 2423.28 involves the official who is

authorized to issue and is revoke

subpoenas.

Section 2429.11—As noted earlier, the

procedures governing interlocutory

appeals in unfair labor practice cases

have been moved to § 2423.31(c). The

final rule notes that such appeals will

ordinarily not be considered, except as

set forth in part 2423.

Section 2429.12—Almost all

commenters endorsed the liberalization

of service requirements allowing for first

class mail and facsimile transmissions.

The final rule adopts the proposed

rule’s service requirements.

In response to a suggestion, the final

rule expands the list of documents that

must be served to include amended

complaints and withdrawals of

complaints and amends the list of those

who are required to serve to include the

Regional Director when not acting as a

party under part 2423. The reference in

the proposed regulation to § 2429.7 has

been changed in the final rule to

subpoenas, as a result of subpoena

sections appearing in both parts 2429

and 2423.

Also, the final rule has been revised

to provide for the Authority’s service by

facsimile of time sensitive matters.

Section 2429.13—Final rule as

promulgated is the same as proposed

rule.

Section 2429.14—Final rule as

promulgated is the same as proposed

rule.

Section 2429.21—Final rule as

promulgated is the same as proposed

rule.

Section 2429.22—Commenters noted

that when service is by facsimile, there

is no reason to add 5 additional days to

periods within which a party must act,

as is done in the case of service by mail.

The final regulation adopts this

suggestion and has been modified to

delete facsimile filing from this section.

Section 2429.24—As previously

noted, parties uniformly and

overwhelmingly supported the change

allowing for filing by facsimile. In

response to several requests, the 5-page

limitation on facsimile filings with the

Authority has been increased in the

final rule to 10 pages. However,

piecemeal filing is not permitted, as the

10-page limit applies to the entire

individual document. This limit,

however, will be strictly enforced and

standard font sizes (12 point) and

margins (1 inch) will be required.

Clarification was sought as to the term

‘‘other similar matters’’ with respect to

documents appropriate for facsimile

submissions. The final rule lists a

number of items that may be filed by

facsimile; with these examples offered

in the regulation, further definition of

this phrase is not considered feasible or

prudent at this time. As in § 2429.12,

the reference in the proposed regulation

to § 2429.7 has been changed in the final

rule to subpoenas, as a result of

subpoena sections appearing in both

parts 2429 and 2423.

Section 2429.25—The final rule

includes one minor change to clarify

that standard font sizes and margins

will be required in all filings with the

Authority.

Section 2429.27—Three minor

changes have been incorporated into the

final rule: First, in paragraph (b), the

modifier of the word party has been

changed from ‘‘another’’ to ‘‘any other,’’

thus clarifying that all parties, including

the charging party, must be served;

second, in paragraph (d), commercial

delivery has been included as a method

of service; and third, also in paragraph

(d), the phrase ‘‘date of transmission’’

has been changed to ‘‘date transmitted.’’
40916 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

List of Subjects

5 CFR Part 2423

Administrative practice and

procedure, Government employees,

Labor-management relations.

5 CFR Part 2429

Administrative practice and

procedure, Government employees,

Labor-management relations.

For the reasons set forth in the

preamble, the Federal Labor Relations

Authority amends parts 2423 and 2429

of its regulations as follows:

1. Part 2423 is revised to read as

follows:

PART 2423—UNFAIR LABOR

PRACTICE PROCEEDINGS

Sec.

2423.1 Applicability of this part.

Subpart A—Filing, Investigating, Resolving,

and Acting on Charges

2423.2 Informal proceedings.

2423.3 Who may file charges.

2423.4 Contents of the charge; supporting

evidence and documents.

2423.5 Selection of the unfair labor practice

procedure or the negotiability procedure.

2423.6 Filing and service of copies.

2423.7 Investigation of charges.

2423.8 Amendment of charges.

2423.9 Action by the Regional Director.

2423.10 Determination not to issue

complaint; review of action by the

Regional Director.

2423.11 Settlement prior to issuance of a

complaint.

2423.12–2423.19 [Reserved]

Subpart B—Post Complaint, Prehearing

Procedures

2423.20 Issuance and contents of the

complaint; answer to the complaint;

amendments; role of Office of the

Administrative Law Judges.

2423.21 Motions procedure.

2423.22 Intervenors.

2423.23 Prehearing disclosure.

2423.24 Powers and duties of the

Administrative Law Judge during

prehearing proceedings.

2423.25 Post complaint, prehearing

settlements.

2423.26 Stipulations of fact submissions.

2423.27 Summary judgment motions.

2423.28 Subpoenas.

2423.29 [Reserved]

Subpart C—Hearing Procedures.

2423.30 General rules.

2423.31 Powers and duties of the

Administrative Law Judge at the hearing.

2423.32 Burden of proof before the

Administrative Law Judge.

2423.33 Posthearing briefs.

2423.34 Decision and record.

2423.35–2423.39 [Reserved]

Subpart D—Post-Transmission and

Exceptions to Authority Procedures

2423.40 Exceptions; oppositions and crossexceptions; oppositions to crossexceptions; waiver.

2423.41 Action by the Authority;

compliance with Authority decisions

and orders.

2423.42 Backpay proceedings.

2423.43–2423.49 [Reserved]

Authority: 5 U.S.C. 7134.

§ 2423.1 Applicability of this part.

This part is applicable to any charge

of alleged unfair labor practices filed

with the Authority on or after January

11, 1979, and any complaint filed on or

after October 1, 1997.

Subpart A—Filing, Investigating,

Resolving, and Acting on Charges

§ 2423.2 Informal proceedings.

(a) The purposes and policies of the

Federal Service Labor-Management

Relations Statute can best be achieved

by the cooperative efforts of all persons

covered by the program. To this end, it

shall be the policy of the Authority and

the General Counsel to encourage all

persons alleging unfair labor practices

and persons against whom such

allegations are made to meet and, in

good faith, attempt to resolve such

matters prior to the filing of unfair labor

practice charges with the Authority.

(b) In furtherance of the policy

referred to in paragraph (a) of this

section, and noting the six (6) month

period of limitation set forth in 5 U.S.C.

7118(a)(4), it shall be the policy of the

Authority and the General Counsel to

encourage the informal resolution of

unfair labor practice allegations

subsequent to the filing of a charge and

prior to the issuance of a complaint by

the Regional Director.

(c) In order to afford the parties an

opportunity to implement the policy

referred to in paragraphs (a) and (b) of

this section, the investigation of an

unfair labor practice charge by the

Regional Director will normally not

commence until the parties have been

afforded a reasonable amount of time,

not to exceed 15 days from the filing of

the charge, during which period the

parties are urged to attempt to

informally resolve the unfair labor

practice allegation.

§ 2423.3 Who may file charges.

An activity, agency or labor

organization may be charged by any

person with having engaged in or

engaging in any unfair labor practice

prohibited under 5 U.S.C. 7116.

§ 2423.4 Contents of the charge;

supporting evidence and documents.

(a) A charge alleging a violation of 5

U.S.C. 7116 shall be submitted on forms

prescribed by the Authority and shall

contain the following:

(1) The name, address and telephone

number of the person(s) making the

charge;

(2) The name, address and telephone

number of the activity, agency, or labor

organization against whom the charge is

made;

(3) A clear and concise statement of

the facts constituting the alleged unfair

labor practice, a statement of the

section(s) and paragraph(s) of chapter 71

of title 5 of the United States Code

alleged to have been violated, and the

date and place of occurrence of the

particular acts; and

(4) A statement of any other

procedure invoked involving the subject

matter of the charge and the results, if

any, including whether the subject

matter raised in the charge:

(i) has been raised previously in a

grievance procedure;

(ii) has been referred to the Federal

Service Impasses Panel, the Federal

Mediation and Conciliation Service, the

Equal Employment Opportunity

Commission, the Merit Systems

Protection Board or the Special Counsel

of the Merit Systems Protection Board

for consideration or action; or

(iii) involves a negotiability issue

raised by the charging party in a petition

pending before the Authority pursuant

to part 2424 of this subchapter.

(b) Such charge shall be in writing

and signed and shall contain a

declaration by the person signing the

charge, under the penalties of the

Criminal Code (18 U.S.C. 1001), that its

contents are true and correct to the best

of that person’s knowledge and belief.

(c) When filing a charge, the charging

party shall submit to the Regional

Director any supporting evidence and

documents.

§ 2423.5 Selection of the unfair labor

practice procedure or the negotiability

procedure.

Where a labor organization files an

unfair labor practice charge pursuant to

this part which involves a negotiability

issue, and the labor organization also

files pursuant to part 2424 of this

subchapter a petition for review of the

same negotiability issue, the Authority

and the General Counsel ordinarily will

not process the unfair labor practice

charge and the petition for review

simultaneously. Under such

circumstances, the labor organization

must select under which procedure to

proceed. Upon selection of one
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40917

procedure, further action under the

other procedure will ordinarily be

suspended. Such selection must be

made regardless of whether the unfair

labor practice charge or the petition for

review of a negotiability issue is filed

first. Notification of this selection must

be made in writing at the time that both

procedures have been invoked, and

must be served on the Authority, the

appropriate Regional Director and all

parties to both the unfair labor practice

case and the negotiability case. Cases

which solely involve an agency’s

allegation that the duty to bargain in

good faith does not extend to the matter

proposed to be bargained and which do

not involve actual or contemplated

changes in conditions of employment

may only be filed under part 2424 of

this subchapter.

§ 2423.6 Filing and service of copies.

(a) An original and four (4) copies of

the charge together with one copy for

each additional charged party named

shall 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

such region.

(b) Upon the filing of a charge, the

charging party shall be responsible for

the service of a copy of the charge

(without the supporting evidence and

documents) upon the person(s) against

whom the charge is made, and for filing

a written statement of such service with

the Regional Director. The Regional

Director will, as a matter of course,

cause a copy of such charge to be served

on the person(s) against whom the

charge is made, but shall not be deemed

to assume responsibility for such

service.

(c) A charge will be deemed to be

filed when it is received by the

appropriate Regional Director in

accordance with the requirements in

paragraph (a) of this section.

§ 2423.7 Investigation of charges.

(a) The Regional Director, on behalf of

the General Counsel, shall conduct such

investigation of the charge as the

Regional Director deems necessary.

Consistent with the policy set forth in

§ 2423.2, the investigation will normally

not commence until the parties have

been afforded a reasonable amount of

time, not to exceed 15 days from the

filing of the charge, to informally

resolve the unfair labor practice

allegation.

(b) During the course of the

investigation all parties involved will

have an opportunity to present their

evidence and views to the Regional

Director.

(c) In connection with the

investigation of charges, all persons are

expected to cooperate fully with the

Regional Director.

(d) The purposes and policies of the

Federal Service Labor-Management

Relations Statute can best be achieved

by the full cooperation of all parties

involved and the voluntary submission

of all potentially relevant information

from all potential sources during the

course of the investigation. To this end,

it shall be the policy of the Authority

and the General Counsel to protect the

identity of individuals and the

substance of the statements and

information they submit or which is

obtained during the investigation as a

means of assuring the Authority’s and

the General Counsel’s continuing ability

to obtain all relevant information.

§ 2423.8 Amendment of charges.

Prior to the issuance of a complaint,

the charging party may amend the

charge in accordance with the

requirements set forth in § 2423.6.

§ 2423.9 Action by the Regional Director.

(a) The Regional Director shall take

action which may consist of the

following, as appropriate:

(1) Approve a request to withdraw a

charge;

(2) Refuse to issue a complaint;

(3) Approve a written settlement

agreement in accordance with the

provisions of part 2423;

(4) Issue a complaint; or

(5) Withdraw a complaint.

(b) Parties may request the General

Counsel to seek appropriate temporary

relief (including a restraining order)

under 5 U.S.C. 7123(d). The General

Counsel will initiate and prosecute

injunctive proceedings under 5 U.S.C.

7123(d) only upon approval of the

Authority. A determination by the

General Counsel not to seek approval of

the Authority for such temporary relief

is final and may not be appealed to the

Authority.

(c) Upon a determination to issue a

complaint, whenever it is deemed

advisable by the Authority to seek

appropriate temporary relief (including

a restraining order) under 5 U.S.C.

7123(d), the Regional Attorney or other

designated agent of the Authority to

whom the matter has been referred will

make application for appropriate

temporary relief (including a restraining

order) in the district court of the United

States within which the unfair labor

practice is alleged to have occurred or

in which the party sought to be enjoined

resides or transacts business. Such

temporary relief will not be sought

unless the record establishes probable

cause that an unfair labor practice is

being committed, or if such temporary

relief will interfere with the ability of

the agency to carry out its essential

functions.

(d) Whenever temporary relief has

been obtained pursuant to 5 U.S.C.

7123(d) and thereafter the

Administrative Law Judge hearing the

complaint, upon which the

determination to seek such temporary

relief was predicated, recommends

dismissal of such complaint, in whole

or in part, the Regional Attorney or

other designated agent of the Authority

handling the case for the Authority shall

inform the district court which granted

the temporary relief of the possible

change in circumstances arising out of

the decision of the Administrative Law

Judge.

§ 2423.10 Determination not to issue

complaint; review of action by the Regional

Director.

(a) If the Regional Director determines

that the charge has not been timely

filed, that the charge fails to state an

unfair labor practice, or for other

appropriate reasons, the Regional

Director may request the charging party

to withdraw the charge, and in the

absence of such withdrawal within a

reasonable time, decline to issue a

complaint.

(b) If the Regional Director determines

not to issue a complaint on a charge

which is not withdrawn, the Regional

Director shall provide the parties with a

written statement of the reasons for not

issuing a complaint.

(c) The charging party may obtain a

review of the Regional Director’s

decision not to issue a complaint by

filing an appeal with the General

Counsel within 25 days after service of

the Regional Director’s decision. The

appeal shall contain a complete

statement setting forth the facts and

reasons upon which it is based. A copy

of the appeal shall also be filed with the

Regional Director. In addition, the

charging party should notify all other

parties of the fact that an appeal has

been taken, but any failure to give such

notice shall not affect the validity of the

appeal.

(d) A request for extension of time to

file an appeal shall be in writing and

received by the General Counsel not

later than 5 days before the date the

appeal is due. The charging party

should notify the Regional Director and

all other parties that it has requested an

extension of time in which to file an

appeal, but any failure to give such
40918 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

notice shall not affect the validity of its

request for an extension of time to file

an appeal.

(e) The General Counsel may sustain

the Regional Director’s refusal to issue

or re-issue a complaint, stating the

grounds of affirmance, or may direct the

Regional Director to take further action.

The General Counsel’s decision shall be

served on all the parties. The decision

of the General Counsel shall be final.

§ 2423.11 Settlement prior to issuance of a

complaint.

(a) Prior to the issuance of any

complaint or the taking of other formal

action, the Regional Director will afford

the Charging Party and the Respondent

a reasonable period of time in which to

enter into an informal settlement

agreement to be approved by the

Regional Director. Upon approval by the

Regional Director and compliance with

the terms of the informal settlement

agreement, no further action shall be

taken in the case. If the Respondent fails

to perform its obligations under the

informal settlement agreement, the

Regional Director may determine to

institute further proceedings.

(b) In the event that the Charging

Party fails or refuses to become a party

to an informal settlement agreement

offered by the Respondent, if the

Regional Director concludes that the

offered settlement will effectuate the

policies of the Federal Service LaborManagement Relations Statute, the

Regional Director shall enter into the

agreement with the Respondent and

shall decline to issue a complaint. The

Charging Party may obtain a review of

the Regional Director’s action by filing

an appeal with the General Counsel in

accordance with § 2423.10(c). The

General Counsel shall take action on

such appeal as set forth in § 2423.10(e).

§§ 2423.12–2423.19 [Reserved]

Subpart B—Post Complaint,

Prehearing Procedures

§ 2423.20 Issuance and contents of the

complaint; answer to the complaint;

amendments; role of Office of

Administrative Law Judges.

(a) Complaint. Whenever formal

proceedings are deemed necessary, the

Regional Director shall file and serve, in

accordance with § 2429.12 of this

subchapter, a complaint with the Office

of Administrative Law Judges. The

decision to issue a complaint shall not

be subject to review. Any complaint

may be withdrawn by the Regional

Director prior to the hearing. The

complaint shall set forth:

(1) Notice of the charge;

(2) The basis for jurisdiction;

(3) The facts alleged to constitute an

unfair labor practice;

(4) The particular sections of 5 U.S.C.,

chapter 71 and the rules and regulations

involved;

(5) Notice of the date, time, and place

that a hearing will take place before an

Administrative Law Judge; and

(6) A brief statement explaining the

nature of the hearing.

(b) Answer. Within 20 days after the

date of service of the complaint, but in

any event, prior to the beginning of the

hearing, the Respondent shall file and

serve, in accordance with part 2429 of

this subchapter, an answer with the

Office of Administrative Law Judges.

The answer shall admit, deny, or

explain each allegation of the

complaint. If the Respondent has no

knowledge of an allegation or

insufficient information as to its

truthfulness, the answer shall so state.

Absent a showing of good cause to the

contrary, failure to file an answer or

respond to any allegation shall

constitute an admission. Motions to

extend the filing deadline shall be filed

in accordance with § 2423.21.

(c) Amendments. The Regional

Director may amend the complaint at

any time before the answer is filed. The

Respondent then has 20 days from the

date of service of the amended

complaint to file an answer with the

Office of Administrative Law Judges.

Prior to the beginning of the hearing, the

answer may be amended by the

Respondent within 20 days after the

answer is filed. Thereafter, any requests

to amend the complaint or answer must

be made by motion to the Office of

Administrative Law Judges.

(d) Office of Administrative Law

Judges. Pleadings, motions, conferences,

hearings, and other matters throughout

as specified in subparts B, C, and D of

this part shall be administered by the

Office of Administrative Law Judges, as

appropriate. The Chief Administrative

Law Judge, or any Administrative Law

Judge designated by the Chief

Administrative Law Judge, shall

administer any matters properly

submitted to the Office of

Administrative Law Judges. Throughout

subparts B, C, and D of this part,

‘‘Administrative Law Judge’’ or ‘‘Judge’’

refers to the Chief Administrative Law

Judge or his or her designee.

§ 2423.21 Motions procedure.

(a) General requirements. All motions,

except those made during a prehearing

conference or hearing, shall be in

writing. Motions for an extension of

time, postponement of a hearing, or any

other procedural ruling shall include a

statement of the position of the other

parties on the motion. All written

motions and responses in subparts B, C,

or D of this part shall satisfy the filing

and service requirements of part 2429 of

this subchapter.

(b) Motions made to the

Administrative Law Judge. Prehearing

motions and motions made at the

hearing shall be filed with the

Administrative Law Judge. Unless

otherwise specified in subparts B or C

of this part, or otherwise directed or

approved by the Administrative Law

Judge:

(1) Prehearing motions shall be filed

at least 10 days prior to the hearing, and

responses shall be filed within 5 days

after the date of service of the motion;

(2) Responses to motions made during

the hearing shall be filed prior to the

close of hearing;

(3) Posthearing motions shall be filed

within 10 days after the date the hearing

closes, and responses shall be filed

within 5 days after the date of service

of the motion; and

(4) Motions to correct the transcript

shall be filed with the Administrative

Law Judge within 10 days after receipt

of the transcript, and responses shall be

filed within 5 days after the date of

service of the motion.

(c) Post-transmission motions. After

the case has been transmitted to the

Authority, motions shall be filed with

the Authority. Responses shall be filed

within 5 days after the date of service

of the motion.

(d) Interlocutory appeals. Motions for

an interlocutory appeal of any ruling

and responses shall be filed in

accordance with this section and

§ 2423.31(c).

§ 2423.22 Intervenors.

Motions for permission to intervene

and responses shall be filed in

accordance with § 2423.21. Such

motions shall be granted upon a

showing that the outcome of the

proceeding is likely to directly affect the

movant’s rights or duties. Intervenors

may participate only: on the issues

determined by the Administrative Law

Judge to affect them; and to the extent

permitted by the Judge. Denial of such

motions may be appealed pursuant to

§ 2423.21(d).

§ 2423.23 Prehearing disclosure.

Unless otherwise directed or

approved by the Judge, the parties shall

exchange, in accordance with the

service requirements of § 2429.27(b) of

this subchapter, the following items at

least 14 days prior to the hearing:

(a) Witnesses. Proposed witness lists,

including a brief synopsis of the

expected testimony of each witness;
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40919

(b) Documents. Copies of documents,

with an index, proposed to be offered

into evidence; and

(c) Theories. A brief statement of the

theory of the case, including relief

sought, and any and all defenses to the

allegations in the complaint.

§ 2423.24 Powers and duties of the

Administrative Law Judge during

prehearing proceedings.

(a) Prehearing procedures. The

Administrative Law Judge shall regulate

the course and scheduling of prehearing

matters, including prehearing orders,

conferences, disclosure, motions, and

subpoena requests.

(b) Changing date, time, or place of

hearing. After issuance of the complaint

or any prehearing order, the

Administrative Law Judge may, in the

Judge’s discretion or upon motion by

any party through the motions

procedure in § 2423.21, change the date,

time, or place of the hearing.

(c) Prehearing order. (1) The

Administrative Law Judge may, in the

Judge’s discretion or upon motion by

any party through the motions

procedure in § 2423.21, issue a

prehearing order confirming or

changing:

(i) The date, time, or place of the

hearing;

(ii) The schedule for prehearing

disclosure of witness lists and

documents intended to be offered into

evidence at the hearing;

(iii) The date for submission of

procedural and substantive motions;

(iv) The date, time, and place of the

prehearing conference; and

(v) Any other matter pertaining to

prehearing or hearing procedures.

(2) The prehearing order shall be

served in accordance with § 2429.12 of

this subchapter.

(d) Prehearing conferences. The

Administrative Law Judge shall conduct

one or more prehearing conferences,

either by telephone or in person, at least

7 days prior to the hearing date, unless

the Administrative Law Judge

determines that a prehearing conference

would serve no purpose and no party

has moved for a prehearing conference

in accordance with § 2423.21. If a

prehearing conference is held, all

parties must participate in the

prehearing conference and be prepared

to discuss, narrow, and resolve the

issues set forth in the complaint and

answer, as well as any prehearing

disclosure matters or disputes. When

necessary, the Administrative Law

Judge shall prepare and file for the

record a written summary of actions

taken at the conference. Summaries of

the conference shall be served on all

parties in accordance with § 2429.12 of

this subchapter. The following may also

be considered at the prehearing

conference:

(1) Settlement of the case, either by

the Judge conducting the prehearing

conference or pursuant to § 2423.25;

(2) Admissions of fact, disclosure of

contents and authenticity of documents,

and stipulations of fact;

(3) Objections to the introduction of

evidence at the hearing, including oral

or written testimony, documents,

papers, exhibits, or other submissions

proposed by a party;

(4) Subpoena requests or petitions to

revoke subpoenas;

(5) Any matters subject to official

notice;

(6) Outstanding motions; or

(7) Any other matter that may

expedite the hearing or aid in the

disposition of the case.

(e) Sanctions. The Administrative

Law Judge may, in the Judge’s discretion

or upon motion by any party through

the motions procedure in § 2423.21,

impose sanctions upon the parties as

necessary and appropriate to ensure that

a party’s failure to fully comply with

subpart B or C of this part is not

condoned. Such authority includes, but

is not limited to, the power to:

(1) Prohibit a party who fails to

comply with any requirement of subpart

B or C of this part from, as appropriate,

introducing evidence, calling witnesses,

raising objections to the introduction of

evidence or testimony of witnesses at

the hearing, presenting a specific theory

of violation, seeking certain relief, or

relying upon a particular defense.

(2) Refuse to consider any submission

that is not filed in compliance with

subparts B or C of this part.

§ 2423.25 Post complaint, prehearing

settlements.

(a) Informal and formal settlements.

Post complaint settlements may be

either informal or formal.

(1) Informal settlement agreements

provide for withdrawal of the complaint

by the Regional Director and are not

subject to approval by or an order of the

Authority. If the Respondent fails to

perform its obligations under the

informal settlement agreement, the

Regional Director may reinstitute formal

proceedings consistent with this

subpart.

(2) Formal settlement agreements are

subject to approval by the Authority,

and include the parties’ agreement to

waive their right to a hearing and

acknowledgment that the Authority may

issue an order requiring the Respondent

to take action appropriate to the terms

of the settlement. The formal settlement

agreement shall also contain the

Respondent’s consent to the Authority’s

application for the entry of a decree by

an appropriate federal court enforcing

the Authority’s order.

(b) Informal settlement procedure. If

the Charging Party and the Respondent

enter into an informal settlement

agreement that is accepted by the

Regional Director, the Regional Director

shall withdraw the complaint and

approve the informal settlement

agreement. If the Charging Party fails or

refuses to become a party to an informal

settlement agreement offered by the

Respondent, and the Regional Director

concludes that the offered settlement

will effectuate the policies of the

Federal Service Labor-Management

Relations Statute, the Regional Director

shall enter into the agreement with the

Respondent and shall withdraw the

complaint. The Charging Party then may

obtain a review of the Regional

Director’s action by filing an appeal

with the General Counsel as provided in

subpart A of this part.

(c) Formal settlement procedure. If the

Charging Party and the Respondent

enter into a formal settlement agreement

that is accepted by the Regional

Director, the Regional Director shall

withdraw the complaint upon approval

of the formal settlement agreement by

the Authority. If the Charging Party fails

or refuses to become a party to a formal

settlement agreement offered by the

Respondent, and the Regional Director

concludes that the offered settlement

will effectuate the policies of the

Federal Service Labor-Management

Relations Statute, the agreement shall be

between the Respondent and the

Regional Director. The formal settlement

agreement together with the Charging

Party’s objections, if any, shall be

submitted to the Authority for approval.

The Authority may approve a formal

settlement agreement upon a sufficient

showing that it will effectuate the

policies of the Federal Service LaborManagement Relations Statute.

(d) Settlement judge program. The

Administrative Law Judge, in the

Judge’s discretion or upon the request of

any party, may assign a judge or other

appropriate official, who shall be other

than the hearing judge unless otherwise

mutually agreed to by the parties, to

conduct negotiations for settlement.

(1) The settlement official shall

convene and preside over settlement

conferences by telephone or in person.

(2) The settlement official may require

that the representative for each party be

present at settlement conferences and

that the parties or agents with full

settlement authority be present or

available by telephone.
40920 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

(3) The settlement official shall not

discuss any aspect of the case with the

hearing judge.

(4) No evidence regarding statements,

conduct, offers of settlement, and

concessions of the parties made in

proceedings before the settlement

official shall be admissible in any

proceeding before the Administrative

Law Judge or Authority, except by

stipulation of the parties.

§ 2423.26 Stipulations of fact submissions.

(a) General. When all parties agree

that no material issue of fact exists, the

parties may jointly submit a motion to

the Administrative Law Judge or

Authority requesting consideration of

the matter based upon stipulations of

fact. Briefs of the parties are required

and must be submitted within 30 days

of the joint motion. Upon receipt of the

briefs, such motions shall be ruled upon

expeditiously.

(b) Stipulations to the Administrative

Law Judge. Where the stipulation

adequately addresses the appropriate

material facts, the Administrative Law

Judge may grant the motion and decide

the case through stipulation.

(c) Stipulations to the Authority.

Where the stipulation provides an

adequate basis for application of

established precedent and a decision by

the Administrative Law Judge would

not assist in the resolution of the case,

or in unusual circumstances, the

Authority may grant the motion and

decide the case through stipulation.

(d) Decision based on stipulation.

Where the motion is granted, the

Authority will adjudicate the case and

determine whether the parties have met

their respective burdens based on the

stipulation and the briefs.

§ 2423.27 Summary judgment motions.

(a) Motions. Any party may move for

a summary judgment in its favor on any

of the issues pleaded. Unless otherwise

approved by the Administrative Law

Judge, such motion shall be made no

later than 10 days prior to the hearing.

The motion shall demonstrate that there

is no genuine issue of material fact and

that the moving party is entitled to a

judgment as a matter of law. Such

motions shall be supported by

documents, affidavits, applicable

precedent, or other appropriate

materials.

(b) Responses. Responses must be

filed within 5 days after the date of

service of the motion. Responses may

not rest upon mere allegations or

denials but must show, by documents,

affidavits, applicable precedent, or other

appropriate materials, that there is a

genuine issue to be determined at the

hearing.

(c) Decision. If all issues are decided

by summary judgment, no hearing will

be held and the Administrative Law

Judge shall prepare a decision in

accordance with § 2423.34. If summary

judgment is denied, or if partial

summary judgment is granted, the

Administrative Law Judge shall issue an

opinion and order, subject to

interlocutory appeal as provided in

§ 2423.31(c) of this subchapter, and the

hearing shall proceed as necessary.

§ 2423.28 Subpoenas.

(a) When necessary. Where the parties

are in agreement that the appearance of

witnesses or the production of

documents is necessary, and such

witnesses agree to appear, no subpoena

need be sought.

(b) Requests for subpoenas. A request

for a subpoena by any person, as

defined in 5 U.S.C. 7103(a)(1), shall be

in writing and filed with the Office of

Administrative Law Judges not less than

10 days prior to the hearing, or with the

Administrative Law Judge during the

hearing. Requests for subpoenas made

less than 10 days prior to the hearing

shall be granted on sufficient

explanation of why the request was not

timely filed.

(c) Subpoena procedures. The Office

of Administrative Law Judges, or any

other employee of the Authority

designated by the Authority, as

appropriate, shall furnish the requester

the subpoenas sought, provided the

request is timely made. Requests for

subpoenas may be made ex parte.

Completion of the specific information

in the subpoena and the service of the

subpoena are the responsibility of the

party on whose behalf the subpoena was

issued.

(d) Service of subpoena. A subpoena

may be served by any person who is at

least 18 years old and who is not a party

to the proceeding. The person who

served the subpoena must certify that he

or she did so:

(1) By delivering it to the witness in

person,

(2) By registered or certified mail, or

(3) By delivering the subpoena to a

responsible person (named in the

document certifying the delivery) at the

residence or place of business (as

appropriate) of the person for whom the

subpoena was intended. The subpoena

shall show on its face the name and

address of the party on whose behalf the

subpoena was issued.

(e)(1) Petition to revoke subpoena.

Any person served with a subpoena

who does not intend to comply shall,

within 5 days after the date of service

of the subpoena upon such person,

petition in writing to revoke the

subpoena. A copy of any petition to

revoke a subpoena shall be served on

the party on whose behalf the subpoena

was issued. Such petition to revoke, if

made prior to the hearing, and a written

statement of service, shall be filed with

the Office of Administrative Law Judges

for ruling. A petition to revoke a

subpoena filed during the hearing, and

a written statement of service, shall be

filed with the Administrative Law

Judge.

(2) The Administrative Law Judge, or

any other employee of the Authority

designated by the Authority, as

appropriate, shall revoke the subpoena

if the person or evidence, the

production of which is required, is not

material and relevant to the matters

under investigation or in question in the

proceedings, or the subpoena does not

describe with sufficient particularity the

evidence the production of which is

required, or if for any other reason

sufficient in law the subpoena is

invalid. The Administrative Law Judge,

or any other employee of the Authority

designated by the Authority, as

appropriate, shall state the procedural

or other ground for the ruling on the

petition to revoke. The petition to

revoke, any answer thereto, and any

ruling thereon shall not become part of

the official record except upon the

request of the party aggrieved by the

ruling.

(f) Failure to comply. Upon the failure

of any person to comply with a

subpoena issued and upon the request

of the party on whose behalf the

subpoena was issued, the Solicitor of

the Authority shall institute proceedings

on behalf of such party in the

appropriate district court for the

enforcement thereof, unless to do so

would be inconsistent with law and the

Federal Service Labor-Management

Relations Statute.

§ 2423.29 [Reserved]

Subpart C—Hearing Procedures

§ 2423.30 General rules.

(a) Open hearing. The hearing shall be

open to the public unless otherwise

ordered by the Administrative Law

Judge.

(b) Administrative Procedure Act. The

hearing shall, to the extent practicable,

be conducted in accordance with 5

U.S.C. 554–557, and other applicable

provisions of the Administrative

Procedure Act.

(c) Rights of parties. A party shall

have the right to appear at any hearing

in person, by counsel, or by other
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40921

representative; to examine and crossexamine witnesses; to introduce into the

record documentary or other relevant

evidence; and to submit rebuttal

evidence, except that the participation

of any party shall be limited to the

extent prescribed by the Administrative

Law Judge.

(d) Objections. Objections are oral or

written complaints concerning the

conduct of a hearing. Any objection not

raised to the Administrative Law Judge

shall be deemed waived.

(e) Oral argument. Any party shall be

entitled, upon request, to a reasonable

period prior to the close of the hearing

for oral argument, which shall be

included in the official transcript of the

hearing.

(f) Official transcript. An official

reporter shall make the only official

transcript of such proceedings. Copies

of the transcript may be examined in the

appropriate Regional Office during

normal working hours. Parties desiring

a copy of the transcript shall make

arrangements for a copy with the official

hearing reporter.

§ 2423.31 Powers and duties of the

Administrative Law Judge at the hearing.

(a) Conduct of hearing. The

Administrative Law Judge shall conduct

the hearing in a fair, impartial, and

judicial manner, taking action as needed

to avoid unnecessary delay and

maintain order during the proceedings.

The Administrative Law Judge may take

any action necessary to schedule,

conduct, continue, control, and regulate

the hearing, including ruling on motions

and taking official notice of material

facts when appropriate. No provision of

these regulations shall be construed to

limit the powers of the Administrative

Law Judge provided by 5 U.S.C. 556,

557, and other applicable provisions of

the Administrative Procedure Act.

(b) Evidence. The Administrative Law

Judge shall receive evidence and inquire

fully into the relevant and material facts

concerning the matters that are the

subject of the hearing. The

Administrative Law Judge may exclude

any evidence that is immaterial,

irrelevant, unduly repetitious, or

customarily privileged. Rules of

evidence shall not be strictly followed.

(c) Interlocutory appeals. Motions for

an interlocutory appeal shall be filed in

writing with the Administrative Law

Judge within 5 days after the date of the

contested ruling. The motion shall state

why interlocutory review is appropriate,

and why the Authority should modify

or reverse the contested ruling.

(1) The Judge shall grant the motion

and certify the contested ruling to the

Authority if:

(i) The ruling involves an important

question of law or policy about which

there is substantial ground for difference

of opinion; and

(ii) Immediate review will materially

advance completion of the proceeding,

or the denial of immediate review will

cause undue harm to a party or the

public.

(2) If the motion is granted, the Judge

or Authority may stay the hearing

during the pendency of the appeal. If

the motion is denied, exceptions to the

contested ruling may be filed in

accordance with § 2423.40 of this

subchapter after the Judge issues a

decision and recommended order in the

case.

(d) Bench decisions. Upon joint

motion of the parties, the

Administrative Law Judge may issue an

oral decision at the close of the hearing

when, in the Judge’s discretion, the

nature of the case so warrants. By so

moving, the parties waive their right to

file posthearing briefs with the

Administrative Law Judge, pursuant to

§ 2423.33. If the decision is announced

orally, it shall satisfy the requirements

of § 2423.34(a)(1)–(5) and a copy

thereof, excerpted from the transcript,

together with any supplementary matter

the judge may deem necessary to

complete the decision, shall be

transmitted to the Authority, in

accordance with § 2423.34(b), and

furnished to the parties in accordance

with § 2429.12 of this subchapter.

(e) Settlements after the opening of

the hearing. As set forth in § 2423.25(a),

settlements may be either informal or

formal.

(1) Informal settlement procedure:

Judge’s approval of withdrawal. If the

Charging Party and the Respondent

enter into an informal settlement

agreement that is accepted by the

Regional Director, the Regional Director

may request the Administrative Law

Judge for permission to withdraw the

complaint and, having been granted

such permission, shall withdraw the

complaint and approve the informal

settlement between the Charging Party

and Respondent. If the Charging Party

fails or refuses to become a party to an

informal settlement agreement offered

by the Respondent, and the Regional

Director concludes that the offered

settlement will effectuate the policies of

the Federal Service Labor-Management

Relations Statute, the Regional Director

shall enter into the agreement with the

Respondent and shall, if granted

permission by the Administrative Law

Judge, withdraw the complaint. The

Charging Party then may obtain a review

of the Regional Director’s decision as

provided in subpart A of this part.

(2) Formal settlement procedure:

Judge’s approval of settlement. If the

Charging Party and the Respondent

enter into a formal settlement agreement

that is accepted by the Regional

Director, the Regional Director may

request the Administrative Law Judge to

approve such formal settlement

agreement, and upon such approval, to

transmit the agreement to the Authority

for approval. If the Charging Party fails

or refuses to become a party to a formal

settlement agreement offered by the

Respondent, and the Regional Director

concludes that the offered settlement

will effectuate the policies of the

Federal Service Labor-Management

Relations Statute, the agreement shall be

between the Respondent and the

Regional Director. After the Charging

Party is given an opportunity to state on

the record or in writing the reasons for

opposing the formal settlement, the

Regional Director may request the

Administrative Law Judge to approve

such formal settlement agreement, and

upon such approval, to transmit the

agreement to the Authority for approval.

§ 2423.32 Burden of proof before the

Administrative Law Judge.

The General Counsel shall present the

evidence in support of the complaint

and have the burden of proving the

allegations of the complaint by a

preponderance of the evidence. The

Respondent shall have the burden of

proving any affirmative defenses that it

raises to the allegations in the

complaint.

§ 2423.33 Posthearing briefs.

Except when bench decisions are

issued pursuant to § 2423.31(d),

posthearing briefs may be filed with the

Administrative Law Judge within a time

period set by the Judge, not to exceed

30 days from the close of the hearing,

unless otherwise directed by the judge,

and shall satisfy the filing and service

requirements of part 2429 of this

subchapter. Reply briefs shall not be

filed absent permission of the Judge.

Motions to extend the filing deadline or

for permission to file a reply brief shall

be filed in accordance with § 2423.21.

§ 2423.34 Decision and record.

(a) Recommended decision. Except

when bench decisions are issued

pursuant to § 2423.31(d), the

Administrative Law Judge shall prepare

a written decision expeditiously in

every case. All written decisions shall

be served in accordance with § 2429.12

of this subchapter. The decision shall

set forth:

(1) A statement of the issues;

(2) Relevant findings of fact;
40922 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

(3) Conclusions of law and reasons

therefor;

(4) Credibility determinations as

necessary; and

(5) A recommended disposition or

order.

(b) Transmittal to Authority. The

Judge shall transmit the decision and

record to the Authority. The record shall

include the charge, complaint, service

sheet, answer, motions, rulings, orders,

prehearing conference summaries,

stipulations, objections, depositions,

interrogatories, exhibits, documentary

evidence, basis for any sanctions ruling,

official transcript of the hearing, briefs,

and any other filings or submissions

made by the parties.

§§ 2423.35–2423.39 [Reserved]

Subpart D—Post-Transmission and

Exceptions to Authority Procedures

§ 2423.40 Exceptions; oppositions and

cross-exceptions; oppositions to crossexceptions; waiver.

(a) Exceptions. Any exceptions to the

Administrative Law Judge’s decision

must be filed with the Authority within

25 days after the date of service of the

Judge’s decision. Exceptions shall

satisfy the filing and service

requirements of part 2429 of this

subchapter. Exceptions shall consist of

the following:

(1) The specific findings, conclusions,

determinations, rulings, or

recommendations being challenged; the

grounds relied upon; and the relief

sought.

(2) Supporting arguments, which shall

set forth, in order: all relevant facts with

specific citations to the record; the

issues to be addressed; and a separate

argument for each issue, which shall

include a discussion of applicable law.

Attachments to briefs shall be separately

paginated and indexed as necessary.

(3) Exceptions containing 25 or more

pages shall include a table of contents

and a table of legal authorities cited.

(b) Oppositions and cross-exceptions.

Unless otherwise directed or approved

by the Authority, oppositions to

exceptions, cross-exceptions, and

oppositions to cross-exceptions may be

filed with the Authority within 20 days

after the date of service of the

exceptions or cross-exceptions,

respectively. Oppositions shall state the

specific exceptions being opposed.

Oppositions and cross-exceptions shall

be subject to the same requirements as

exceptions set out in paragraph (a) of

this section.

(c) Reply briefs. Reply briefs shall not

be filed absent prior permission of the

Authority.

(d) Waiver. Any exception not

specifically argued shall be deemed to

have been waived.

§ 2423.41 Action by the Authority;

compliance with Authority decisions and

orders.

(a) Authority decision; no exceptions

filed. In the absence of the filing of

exceptions within the time limits

established in § 2423.40, the findings,

conclusions, and recommendations in

the decision of the Administrative Law

Judge shall, without precedential

significance, become the findings,

conclusions, decision and order of the

Authority, and all objections and

exceptions to the rulings and decision of

the Administrative Law Judge shall be

deemed waived for all purposes. Failure

to comply with any filing requirement

established in § 2423.40 may result in

the information furnished being

disregarded.

(b) Authority decision; exceptions

filed. Whenever exceptions are filed in

accordance with § 2423.40, the

Authority shall issue a decision

affirming or reversing, in whole or in

part, the decision of the Administrative

Law Judge or disposing of the matter as

is otherwise deemed appropriate.

(c) Authority’s order. Upon finding a

violation, the Authority shall, in

accordance with 5 U.S.C. 7118(a)(7),

issue an order directing the violator, as

appropriate, to cease and desist from

any unfair labor practice, or to take any

other action to effectuate the purposes

of the Federal Service LaborManagement Relations Statute.

(d) Dismissal. Upon finding no

violation, the Authority shall dismiss

the complaint.

(e) Report of compliance. After the

Authority issues an order, the

Respondent shall, within the time

specified in the order, provide to the

appropriate Regional Director a report

regarding what compliance actions have

been taken. Upon determining that the

Respondent has not complied with the

Authority’s order, the Regional Director

shall refer the case to the Authority for

enforcement or take other appropriate

action.

§ 2423.42 Backpay proceedings.

After the entry of an Authority order

directing payment of backpay, or the

entry of a court decree enforcing such

order, if it appears to the Regional

Director that a controversy exists

between the Authority and a

Respondent regarding backpay that

cannot be resolved without a formal

proceeding, the Regional Director may

issue and serve on all parties a notice of

hearing before an Administrative Law

Judge to determine the backpay amount.

The notice of hearing shall set forth the

specific backpay issues to be resolved.

The Respondent shall, within 20 days

after the service of a notice of hearing,

file an answer in accordance with

§ 2423.20. After the issuance of a notice

of hearing, the procedures provided in

subparts B, C, and D of this part shall

be followed as applicable.

§§ 2423.43–2423.49 [Reserved]

PART 2429—MISCELLANEOUS AND

GENERAL REQUIREMENTS

2. The authority citation for part 2429

continues to read as follows:

Authority: 5 U.S.C. 7134.

§ 2429.1 [Removed and Reserved]

3. Section 2429.1 is removed and

reserved

4. Section 2429.7 is amended by

revising the heading and by removing

the word ‘‘subpena’’ and substituting

‘‘subpoena’’ throughout the section and

by revising paragraphs (c) through (f) to

read as follows:

§ 2429.7 Subpoenas.

* * * * *

(c) A request for a subpoena by any

person, as defined in 5 U.S.C.

7103(a)(1), shall be in writing and filed

with the Regional Director, in

proceedings arising under part 2422 of

this subchapter, or with the Authority,

in proceedings arising under parts 2424

and 2425 of this subchapter, not less

than 10 days prior to the hearing, or

with the appropriate presiding official(s)

during the hearing. Requests for

subpoenas made less than 10 days prior

to the opening of the hearing shall be

granted on sufficient explanation of why

the request was not timely filed.

(d) The Authority, General Counsel,

Regional Director, Hearing Officer, or

any other employee of the Authority

designated by the Authority, as

appropriate, shall furnish the requester

the subpoenas sought, provided the

request is timely made. Requests for

subpoenas may be made ex parte.

Completion of the specific information

in the subpoena and the service of the

subpoena are the responsibility of the

party on whose behalf the subpoena was

issued. A subpoena may be served by

any person who is at least 18 years old

and who is not a party to the

proceeding. The person who served the

subpoena must certify that he or she did

so:

(1) By delivering it to the witness in

person,

(2) By registered or certified mail, or

(3) By delivering the subpoena to a

responsible person (named in the
Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations 40923

document certifying the delivery) at the

residence or place of business (as

appropriate) of the person for whom the

subpoena was intended. The subpoena

shall show on its face the name and

address of the party on whose behalf the

subpoena was issued. (e)(1) Any person

served with a subpoena who does not

intend to comply, shall, within 5 days

after the date of service of the subpoena

upon such person, petition in writing to

revoke the subpoena. A copy of any

petition to revoke a subpoena shall be

served on the party on whose behalf the

subpoena was issued. Such petition to

revoke, if made prior to the hearing, and

a written statement of service, shall be

filed with the Regional Director in

proceedings arising under part 2422 of

this subchapter, and with the Authority,

in proceedings arising under parts 2424

and 2425 of this subchapter for ruling.

A petition to revoke a subpoena filed

during the hearing, and a written

statement of service, shall be filed with

the appropriate presiding official(s).

(2) The Authority, General Counsel,

Regional Director, Hearing Officer, or

any other employee of the Authority

designated by the Authority, as

appropriate, shall revoke the subpoena

if the person or evidence, the

production of which is required, is not

material and relevant to the matters

under investigation or in question in the

proceedings, or the subpoena does not

describe with sufficient particularity the

evidence the production of which is

required, or if for any other reason

sufficient in law the subpoena is

invalid. The Authority, General

Counsel, Regional Director, Hearing

Officer, or any other employee of the

Authority designated by the Authority,

as appropriate, shall state the

procedural or other ground for the

ruling on the petition to revoke. The

petition to revoke, any answer thereto,

and any ruling thereon shall not become

part of the official record except upon

the request of the party aggrieved by the

ruling.

(f) Upon the failure of any person to

comply with a subpoena issued and

upon the request of the party on whose

behalf the subpoena was issued, the

Solicitor of the Authority shall institute

proceedings on behalf of such party in

the appropriate district court for the

enforcement thereof, unless to do so

would be inconsistent with law and the

Federal Service Labor-Management

Relations Statute.

5. Section 2429.11 is revised to read

as follows:

§ 2429.11 Interlocutory appeals.

Except as set forth in part 2423, the

Authority and the General Counsel

ordinarily will not consider

interlocutory appeals.

6. Section 2429.12 is amended by

revising paragraphs (a) and (c) to read as

follows:

§ 2429.12 Service of process and papers

by the Authority.

(a) Methods of service. Notices of

hearings, decisions and orders of

Regional Directors, decisions and

recommended orders of Administrative

Law Judges, decisions of the Authority,

complaints, amended complaints,

withdrawals of complaints, written

rulings on motions, and all other papers

required by this subchapter to be issued

by the Authority, the General Counsel,

Regional Directors, Hearing Officers,

Administrative Law Judges, and

Regional Directors when not acting as a

party under part 2423 of this

subchapter, shall be served personally,

by first-class mail, by facsimile

transmission, or by certified mail.

Where facsimile equipment is available,

rulings on motions; information

pertaining to prehearing disclosure,

conferences, orders, or hearing dates,

and locations; information pertaining to

subpoenas; and other similar or time

sensitive matters may be served by

facsimile transmission.

* * * * *

(c) Proof of service. Proof of service

shall be verified by certificate of the

individual serving the papers describing

the manner of such service. When

service is by mail, the date of service

shall be the day when the matter served

is deposited in the United States mail.

When service is by facsimile, the date of

service shall be the date the facsimile

transmission is transmitted and, when

necessary, verified by a dated facsimile

record of transmission.

7. Section 2429.13 is revised to read

as follows:

§ 2429.13 Official time for witnesses.

If the participation of any employee in

any phase of any proceeding before the

Authority, including the investigation of

unfair labor practice charges and

representation petitions and the

participation in hearings and

representation elections, is deemed

necessary by the Authority, the General

Counsel, any Administrative Law Judge,

Regional Director, Hearing Officer, or

other agent of the Authority designated

by the Authority, the employee shall be

granted official time for such

participation, including necessary travel

time, as occurs during the employee’s

regular work hours and when the

employee would otherwise be in a work

or paid leave status.

8. Section 2429.14 is revised to read

as follows:

§ 2429.14 Witness fees.

(a) Witnesses, whether appearing

voluntarily or pursuant to a subpoena,

shall be paid the fee and mileage

allowances which are paid subpoenaed

witnesses in the courts of the United

States. However, any witness who is

employed by the Federal Government

shall not be entitled to receive witness

fees.

(b) Witness fees, as appropriate, as

well as transportation and per diem

expenses for a witness shall be paid by

the party that calls the witness to testify.

9. Section 2429.21 is amended by

revising paragraph (b) to read as follows:

§ 2429.21 Computation of time for filing

papers.

* * * * *

(b) Except when filing an unfair labor

practice charge pursuant to part 2423 of

this subchapter, a representation

petition pursuant to part 2422 of this

subchapter, and a request for an

extension of time pursuant to

§ 2429.23(a) of this part, when this

subchapter requires the filing of any

paper with the Authority, the General

Counsel, a Regional Director, or an

Administrative Law Judge, the date of

filing shall be determined by the date of

mailing indicated by the postmark date

or the date a facsimile is transmitted. If

no postmark date is evident on the

mailing, it shall be presumed to have

been mailed 5 days prior to receipt. If

the date of facsimile transmission is

unclear, the date of transmission shall

be the date the facsimile transmission is

received. If the filing is by personal or

commercial delivery, it shall be

considered filed on the date it is

received by the Authority or the officer

or agent designated to receive such

materials.

* * * * *

10. Section 2429.22 is revised to read

as follows:

§ 2429.22 Additional time after service by

mail.

Except as to the filing of an

application for review of a Regional

Director’s Decision and Order under

§ 2422.31 of this subchapter, whenever

a party has the right or is required to do

some act pursuant to this subchapter

within a prescribed period after service

of a notice or other paper upon such

party, and the notice or paper is served

on such party by mail, 5 days shall be

added to the prescribed period:

Provided, however, that 5 days shall not

be added in any instance where an

extension of time has been granted.
40924 Federal Register / Vol. 62, No. 147 / Thursday, July 31, 1997 / Rules and Regulations

11. Section 2429.24 is amended by

revising paragraph (e) to read as follows:

§ 2429.24 Place and method of filing;

acknowledgment.

* * * * *

(e) All documents filed pursuant to

this section shall be filed in person, by

commercial delivery, by first-class mail,

or by certified mail. Provided, however,

that where facsimile equipment is

available, motions; information

pertaining to prehearing disclosure,

conferences, orders, or hearing dates,

times, and locations; information

pertaining to subpoenas; and other

similar matters may be filed by facsimile

transmission, provided that the entire

individual filing by the party does not

exceed 10 pages in total length, with

normal margins and font sizes.

* * * * *

12. Section 2429.25 is revised to read

as follows:

§ 2429.25 Number of copies and paper

size.

Unless otherwise provided by the

Authority or the General Counsel, or

their designated representatives, as

appropriate, or under this subchapter,

and with the exception of any

prescribed forms, any document or

paper filed with the Authority, General

Counsel, Administrative Law Judge,

Regional Director, or Hearing Officer, as

appropriate, under this subchapter,

together with any enclosure filed

therewith, shall be submitted on 81⁄2 x

11 inch size paper, using normal

margins and font sizes, in an original

and four (4) legible copies. Where

facsimile filing is permitted pursuant to

§ 2429.24(e), one (1) legible copy,

capable of reproduction, shall be

sufficient. A clean copy capable of being

used as an original for purposes such as

further reproduction may be substituted

for the original.

13. Section 2429.27 is amended by

revising paragraphs (b) and (d) to read

as follows:

§ 2429.27 Service; statement of service.

* * * * *

(b) Service of any document or paper

under this subchapter, by any party,

including documents and papers served

by one party on any other party, shall

be accomplished by certified mail, firstclass mail, commercial delivery, or in

person. Where facsimile equipment is

available, service by facsimile of

documents described in § 2429.24(e) is

permissible.

* * * * *

(d) The date of service or date served

shall be the day when the matter served

is deposited in the U.S. mail, delivered

in person, received from commercial

delivery, or, in the case of facsimile

transmissions, the date transmitted.

Dated: July 28, 1997.

Solly Thomas,

Executive Director, Federal Labor Relations

Authority.

[FR Doc. 97–20244 Filed 7–30–97; 8:45 am]

BILLING CODE 6727–01–P

DEPARTMENT OF AGRICULTURE

Office of the Secretary

7 CFR Parts 3, 278, and 400

Department of Agriculture Civil

Monetary Penalties Adjustment

AGENCY: Office of the Secretary, USDA.

ACTION: Final rule.

SUMMARY: In accordance with Federal

Civil Penalties Inflation Adjustment Act

of 1990, as amended by the Debt

Collection Improvement Act of 1996,

this final rule adjusts civil monetary

penalties imposed by agencies within

USDA to incorporate an inflation

adjustment.

EFFECTIVE DATE: This rule will become

effective on September 2, 1997.

FOR FURTHER INFORMATION CONTACT: Rey

Gonzalez, OCFO, FPD, USDA, Room

3022–S, 1400 Independence Avenue,

SW, Washington DC 20250 (202) 720–

1168.

SUPPLEMENTARY INFORMATION:

I. The Debt Collection Improvement Act

of 1996

The Federal Civil Penalties Inflation

Adjustment Act of 1990 (Pub. L. No.

101–410) (Act) was amended by the

Debt Collection Improvement Act of

1996 (Pub. L. No. 104–134) to require

Federal agencies to regularly adjust

certain civil monetary penalties (CMP)

for inflation. The Act applies to any

CMP provided by law, except for any

penalty under the Internal Revenue

Code of 1986, the Tariff Act of 1930, the

Occupational Safety and Health Act of

1970, and the Social Security Act. The

Act defines CMP to be any penalty, fine,

or other sanction in which a Federal

statute specifies a monetary amount, a

maximum amount, or a range of

amounts for such penalty, fine, or

sanction.

As amended, the Act requires each

agency to make an initial inflation

adjustment for all applicable CMP, and

to make further inflation adjustments at

least once every 4 years thereafter. The

Debt Collection Improvement Act of

1996 stipulates that any increases in

CMP due to the calculated inflation

adjustments (i) applies only to

violations which occur after the date the

increase takes effect, which will be

thirty (30) days after publication of this

final rule; and (ii) the first adjustment

may not exceed 10 percent of the

penalty indicated.

Method of Calculation

Under the Act, the inflation

adjustment for each applicable CMP is

determined by increasing the minimum

or maximum CMP amount or range of

CMP’s per violation or the range of

minimum and maximum civil monetary

penalties, as applicable, by the ‘‘cost-ofliving adjustment.’’ The ‘‘cost-of-living

adjustment’’ is defined as the percentage

of each CMP by which the Consumer

Price Index (CPI) for the month of June

of the calendar year preceding the

adjustment, exceeds the CPI for the

month of June of the calendar year in

which the amount of the CMP was last

set or adjusted in accordance with the

law. The adjustment of these penalties

contained in this notice were limited in

two ways by the Act. First, the initial

adjustment of any penalty may not

exceed 10 percent of the unadjusted

penalty. Second, any calculated increase

under this adjustment is subject to a

specific rounding formula contained in

the Act. As a result of the application of

these rounding rules, some penalties

may not be adjusted. Among the

penalties adjusted in this notice, the

length of time covered by the

adjustment varied, which means the rate

and the amount of the adjustment, if

any, applied to these penalties also

varied.

The rule contained in this notice

reflects the initial adjustment to the

listed civil monetary penalties required

by the Act. This rule will be amended

to reflect any subsequent adjustments to

the listed civil monetary penalties made

in accordance with the Act.

II. Civil Monetary Penalties Affected by

This Rule

A number of USDA agencies

including the Agricultural Marketing

Service; the Federal Crop Insurance

Corporation; the Animal and Plant

Health Inspection Service; the Grain

Inspection, Packers and Stockyards

Administration; the Food Safety

Inspection Service; the Food and

Consumer Service; and the Forest

Service administer laws which provide

for the imposition of civil monetary

penalties.

This final rule lists the specific

penalty or penalty range for each civil

monetary penalty covered by this rule

and reflects the required inflation