67288 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

Sections Remove Add

Regulatory scheduled administrative workweek610.102(b) 610.102.

Tour of duty 610.102(h) 610.102.

630.1211(b)(1) 550.103(j) 550.103.

[FR Doc. 95–31381 Filed 12–28–95; 8:45 am]

BILLING CODE 6325–01–M

FEDERAL LABOR RELATIONS

AUTHORITY

5 CFR Parts 2421, 2422, and 2429

Meaning of Terms as Used in This

Subchapter; Representation

Proceedings; Miscellaneous and

General Requirements

AGENCY: Federal Labor Relations

Authority.

ACTION: Final rules.

SUMMARY: The Federal Labor Relations

Authority is amending its regulations

governing representation proceedings

and related provisions of other

regulations that define or reference

provisions of the representation

regulations. These amendments will

streamline the regulations and make the

regulations more flexible in addressing

the representational concerns of

agencies, labor organizations, and

individuals.

EFFECTIVE DATE: March 15, 1996.

FOR FURTHER INFORMATION CONTACT:

Solly Thomas, Executive Director,

Federal Labor Relations Authority, 607

14th Street, N.W., Washington, D.C.

20424–0001.

SUPPLEMENTARY INFORMATION:

Transition Rules and Regulations

Part 2422 of the regulations of the

Federal Labor Relations Authority

governs representation proceedings.

Several terms involved in representation

proceedings and used in Part 2422 are

defined in certain sections of Part 2421

of the regulations of the Federal Labor

Relations Authority. Additionally, there

are references in Part 2429 of the

regulations to specific sections in Part

2422. The current definitions and

regulations will continue to govern all

representation cases currently pending

before the Federal Labor Relations

Authority and those for which

representation petitions are filed before

March 15, 1996.

Notice and Opportunity to Comment

The Federal Labor Relations

Authority proposed revision to its

regulations regarding the meaning of

certain terms used in Subchapter C (Part

2421) and representation proceedings

(Part 2422). The proposed revision was

for the purpose of streamlining the

regulations and making the rules more

flexible in addressing the

representational concerns of agencies,

labor organizations, and individuals.

The proposed rules were published in

the Federal Register for notice and

comment on August 4, 1995. Customer

views were solicited via a focus group

meeting on August 29, 1995, and formal

written comments were submitted by

both agencies and labor organizations.

All comments have been considered and

many comments have prompted

substantive revisions to the proposed

rule. Any such revision is noted in the

section-by-section analysis.

Section-by-Section Analysis

The following sectional analysis

reflects revisions to the proposed

changes to Part 2421—Meaning of

Terms As Used in This Subchapter and

Part 2422—Representation Proceedings.

Following this analysis, conforming

amendments to Part 2429—

Miscellaneous and General

Requirements are briefly explained.

Part 2421

Section 2421.11

The proposed definition of ‘‘party’’

has been narrowed to clarify that it does

not include an individual in those

instances referenced in subsection (b).

Section 2421.18

Final rule is same as proposed rule.

Section 2421.19

The order of reference to agency or

activity has been reversed.

Section 2421.20

Final rule is same as proposed rule.

Section 2421.21

The proposed definition has been

narrowed to clarify that those parties

‘‘affected by issues raised’’ in a petition

include agencies, activities or labor

organizations, but not bargaining units.

Section 2421.22

Final rule is same as proposed rule.

Part 2422

Section 2422.1

The final sentence in proposed

subsection (a)(2) has been redesignated

as subsection (3) to clarify that the

showing of interest requirement pertains

to all petitions filed under subsection

(a). One commenter questioned whether

any purposes for which petitions could

have been filed have been eliminated by

the consolidation of the former separate

petitions into a single petition. As noted

in the supplementary information

accompanying the proposed rule, all

functions of the former separate

petitions are incorporated into the

single petition.

Section 2422.2

Several commenters objected to the

fact that, unlike the current regulations,

the proposed regulation did not specify

the purposes for which listed entities

may file petitions. For example, under

current practice, labor organizations can

file petitions for eligibility for dues

allotment; individuals can file petitions

seeking an election to determine if

employees in a unit no longer wish to

be represented; agencies can file

petitions based upon good faith doubt as

to the continued appropriateness of a

currently recognized labor organization

to represent an existing unit; and,

petitions to consolidate existing units

can be filed by an agency, a labor

organization, or both may file jointly.

Agreeing with the commenters that the

proposed regulation could lead to

confusion, the final regulation has been

revised to clarify which entities have

standing to file which representation

petitions. The order of reference to

agency or activity has been reversed.

Section 2422.3

The order of reference to agency or

activity in subsections (a)(1) and (a)(2)

has been reversed.

Section 2422.4

The proposed rule offered two options

concerning the service of supporting

documentation. Under Option 1,

supporting documentation, with the

exception of showings of interest, would

be served on all affected parties. Under

Option 2, supporting documentation,

with the exception of showings of

interest, challenges to showings of
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67289

interest, challenges to the status of a

labor organization, and objections to

elections, would be served. Some

commenters favored option 1, one

commenter favored option 2, and one

commenter disagreed with both options,

recommending broader service of

everything except challenges to the

validity of a showing of interest, which

would be served only upon the specific

entities involved in the challenge. In

response to comments concerning

options 1 and 2, the final rule adopts a

compromise position as a rule that is in

the best interest of both the parties and

the representation process. Under this

rule all documentation, except showings

of interest, material that supports

challenges to the validity of the showing

of interest, and documentation which

supports election objections, will be

served on all parties affected by issues

raised in the filing. A superfluous

introductory phrase which was

included in both options of the

proposed regulation has been deleted.

Section 2422.5

Final rule is same as proposed rule.

Section 2422.6

Comments have prompted several

modifications to subsection (a) of the

proposed regulation. First, one

commenter noted that the phrase

‘‘interested parties’’ is vague and could

be construed too broadly. Accordingly,

the title of the subsection has been

amended to simply refer to ‘‘parties.’’

Second, in response to a comment

noting that parties affected by issues

raised in a petition should be provided

notification whether or not the filer

identified them as being affected, and a

comment noting that the obligations on

the Regional Director are unclear, a

second sentence has been added

clarifying the obligations of the Regional

Director vis-a-vis other parties. In

subsection (b)(2) of the final rule, ‘‘(s)’’

was added to the word ‘‘unit’’ in

recognition of the fact that more than

one unit may be affected by issues

raised in the petition.

Section 2422.7

In subsection (a) the phrase

‘‘distribute copies of a notice’’ has been

inserted for additional clarity between

the phrase ‘‘and/or’’ and the word ‘‘in.’’

For the same reasons referenced in the

preceding section, the phrase

‘‘interested parties’’ has been deleted

from the final rule.

Section 2422.8

One commenter noted that as drafted,

the proposed regulation inferred in

subsection (a) that cross-petitions could

be filed only for the purpose of seeking

an election. The subsection has been

revised to correct this misimpression.

Several commenters objected to

subsection (b) of the proposed

regulation permitting intervention and

cross petitions to be filed until the close

of the hearing. Recognizing that such

belated filings could be disruptive to the

representation process, the final rule

revises the subsection to require, absent

a showing of good cause, that such

filings be submitted before the hearing

opens. Also in subsection (b), the phrase

‘‘and/or filed with and submitted to’’

was changed in the final rule to ‘‘and

filed with either.’’ In subsection (d), the

word ‘‘intervention’’ has been deleted

from the title and the phrase ‘‘a party’’

has been substituted for the phrase ‘‘an

intervenor.’’ Lastly, in response to

comment, proposed subsection (e) has

been subdivided into two separate

subsections. The revised and final

subsection (e) provides the

circumstances under which an

employing agency will be considered a

party; subsection (f) indicates the

evidence an agency or activity must

submit to intervene in a representation

proceeding.

Section 2422.9

Final rule is same as proposed rule.

Section 2422.10

For consistency with other provisions

of the rules, the phrase ‘‘submitted to’’

is changed in subsection (b) of the final

rule to the phrase ‘‘filed with.’’

Subsection (c) of the proposed rule has

been revised to bring it into conformity

with the revisions made to section

2422.8(b). As a result, challenges to the

validity of a showing of interest, like

requests to intervene and crosspetitions, must, absent good cause, be

filed before the hearing opens.

Section 2422.11

Subsection (b) of the proposed rule

has been revised to bring it into

conformity with the revisions made to

section 2422.8(b) and section

2422.10(c). Accordingly, challenges to

the status of a labor organization, like

requests to intervene, cross-petitions,

and validity challenges, must, absent

good cause, be filed before the hearing

opens.

Section 2422.12

The second sentence in subsection (b)

has been broadened to clarify that the

certification bar applies during the

statutory period of agency head review

referenced in subsection (c). The phrase

‘‘signed and dated’’ or ‘‘has been signed

and dated’’ in subsections (b),(d), and

(e), has been changed to ‘‘is in effect.’’

As proposed, the regulations

conditioned the various bars on the

presence of a ‘‘signed and dated’’

agreement and did not take into account

that an agreement can take effect

through methods other than execution,

e.g., 5 U.S.C. 7114(c)(3). For the same

reason, the phrase ‘‘and signed’’ has

been deleted from subsection (g). Also

in subsection (g) the phrase ‘‘more

than,’’ before the phrase ‘‘sixty (60)

days,’’ has been changed in the final

rule to ‘‘prior to,’’ in order to clarify that

the referenced 60 day time period does

not apply to the duration of the

extension. Subsection (e) has been

modified to apply only to situations

where the collective bargaining

agreement has a term of more than three

(3) years. The word ‘‘days’’ after the

number ‘‘(105)’’ has also been deleted

from subsection (e). One commenter

noted that unlike the prior regulations,

the revised rules do not provide specific

guidance concerning the timeliness of

petitions seeking to consolidate

bargaining units. The general guidance

concerning timeliness, contained in

various subsections within this section

of the final rules, will apply, as

appropriate, in consolidation situations.

Section 2422.13

Final rule is same as proposed rule.

Section 2422.14

One commenter questioned whether

the reference in proposed subsection (a)

to ‘‘another petition’’ referred to another

petition being filed by the same party or

to a petition filed by any other party.

The phrase is intended to refer to the

latter, i.e., no petition, regardless of who

filed it, would be considered timely

during the period in question. Also in

subsection (a), the phrase ‘‘agency or’’

has been added in the final rule before

the word ‘‘activity,’’ for consistency of

reference with other parts of the rule.

Another commenter noted the

inconsistency between proposed

subsections (b) and (c). In response to

this comment, the final rule amends

subsection (b) to treat petitioners

seeking an election somewhat like the

proposed rule treated incumbents, i.e.,

petitions to represent the same unit, or

a subdivision thereof, are prohibited for

6 months if not withdrawn within the

time constraints described in subsection

(b). However, the final rule does not

treat withdrawals by petitioners the

same as withdrawals by incumbents. In

the former situation, the purpose of the

bar is to discourage an election

petitioner’s dilatory withdrawal because

such action will inconvenience all

concerned. In the latter, the purpose of
67290 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

the bar is to prevent an incumbent from

totally avoiding the possible effect of a

bar by withdrawing prior to an election.

As a result, unlike a petitioner seeking

an election, an incumbent may not

avoid the effect of an election bar by

filing a timely withdrawal. The titles to

subsection (b) and (c) have been

abbreviated.

Section 2422.15

One commenter noted that by locating

the cooperation requirement as a

subsection in a section addressing the

duty to furnish information, the

regulation suggested that providing

information was the primary component

of the cooperation obligation. Agreeing

with this point, the title of the section

has been broadened and proposed

subsection (c) has been rewritten to

specifically articulate the duty of all

parties to cooperate.

Section 2422.16

One commenter suggested that the

‘‘method of election,’’ i.e., typically mail

or manual balloting, be listed as a

procedural determination that the

Regional Director could make. This

suggestion has been incorporated into

subsection (b) of the final rule. The

word ‘‘an’’ has been deleted before the

word ‘‘Election’’ in subsection (b) of the

final rule. In subsection (c)(2) the word

‘‘the’’ before the phrase ‘‘unit

appropriateness’’ has been omitted from

the final rule. A minor punctuation

change has been made in subsection (c)

of the final rule.

Section 2422.17

The title of the section has been

expanded to include a reference to the

prehearing conference. One commenter

noted that the section’s use of the

phrase ‘‘employees and interested

parties’’ was vague and could be

construed too broadly. Accordingly,

subsection (b) has been revised to refer

to ‘‘affected parties.’’ It was also noted

that the notice of hearing does not

identify issues or establish prehearing

dates; as a result, the final sentence in

subsection (b) has been added to reflect

that notice of these matters will be

separate. The revisions to subsection (c)

make it consistent with the changes

made to final subsection (b). A

commenter noted that the title and body

of proposed subsection (d) were

inconsistent. The title and body of

subsection (d) have been revised to

indicate that there is no interlocutory

appeal of a Regional Director’s decision

of whether to hold a hearing.

Section 2422.18

Final rule is same as proposed rule.

Section 2422.19

Subsection (c)(2) of proposed rule has

been deleted to bring this section of the

final rule into conformity with revisions

made to section 2422.8(b).

Section 2422.20

In subsection (b) of the final rule the

word ‘‘copy’’ is changed for clarification

purposes to ‘‘copies,’’ and the word

‘‘between’’ is changed to ‘‘between/

among.’’

Section 2422.21

Subsection (a) of this proposed

section offered two options. Option 1

followed current regulations. Option 2

specifically authorized a Hearing Officer

to make recommendations on the record

on any issue. All commenters

addressing this section favored option 2.

Record recommendations would advise

the parties of the Hearing Officer’s

views and could facilitate resolution of

questions under consideration.

Moreover, the Hearing Officer’s

recommendations could be helpful to

the Regional Director in resolving

certain issues. As a result, the final rule

incorporates option 2. The final rule

includes minor changes, substituting an

‘‘and’’ for a comma and substituting the

word ‘‘Duties’’ for the word ‘‘Duty’’ in

the title of subsection (a).

Section 2422.22

Final rule is same as proposed rule.

Section 2422.23

Subsection (a) has been revised to

clarify that the Regional Director will

decide whether to conduct or supervise

the election and agencies are obliged to

assist as specified. In subsection (b) of

the final rule the word ‘‘distributed’’ has

been added between the phrases ‘‘and/

or’’ and ‘‘in a manner,’’ for the sake of

consistency with a similar change in

§ 2422.7(a) of the final rule. In

subsection (e), the word ‘‘procedures,’’

which was inadvertently included, has

been deleted, and the word ‘‘with’’ has

been substituted for the word ‘‘to’’

before the phrase ‘‘the Authority.’’ The

final rule reframes subsection (h)(2) &

(3) in positive terminology to reflect

who can, rather than who cannot, serve

as an observer. Subsection (h)(2)(i) has

been revised to incorporate the statutory

terminology contained in 5 U.S.C.

7103(a) (10) & (11). One commenter

recommended that proposed subsection

(h)(3) be revised to prevent union

officials from acting as observers for

labor organizations. This suggestions

has been adopted in part and is reflected

in subsection (h)(3)(ii).

Section 2422.24

In subsection (b) of the final rule,

parentheses were placed around the

letter ‘‘s’’ in the word ‘‘ballots’’ in the

phrase ‘‘unresolved challenged ballots,’’

for the sake of consistency with other

references to ballots in the subsection.

Section 2422.25

A minor grammatical change was

made in subsection (b) of the final rule.

Section 2422.26

Subsection (a) has been clarified to

reflect that only a party may file an

objection to an election. One commenter

objected to the requirement that

objections must be ‘‘received by’’ the

Regional Director within 5 days of the

furnishing of the tally of ballots and

recommended that the Authority retain

the ‘‘postmarked by’’ rule. The final rule

adopts the ‘‘received by’’ rule as

preferable because it allows the

Regional Director to certify election

results after a fixed period if no

objections are lodged. The ‘‘postmark’’

rule would require the Regional Director

to delay acting for some uncertain

period of time after 5 days have passed

in order to provide timely posted

objections—if there are any—an

opportunity to arrive. Note that

pursuant to 5 CFR 2429.21(a),

intermediate Saturdays, Sundays, and

Federal legal holidays are excluded

from the 5-day period.

Section 2422.27

The order of subsections (c) and (d)

has been reversed for clarification

purposes. One commenter questioned

whether the opportunity for a hearing,

provided for under the previous

regulations, would continue. The

revised final regulations do not

discontinue the opportunity for a

hearing on challenged ballots.

Section 2422.28

Final rule is same as proposed rule.

Section 2422.29

Final rule is same as proposed rule.

Section 2422.30

One commenter noted that as

proposed, subsection (c)—in

conjunction with sections 2422.8(b),

2422.10(c), and 2422.11(c)—extends the

time period for filing interventions,

cross petitions, and challenges until

after the Regional Director has directed

an election or approved an election

agreement. This would be disruptive of

the representation process. Accordingly,

the final subsection (c) has been revised

to include directing an election or

approving an election agreement.
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67291

Section 2422.31

Language in the current regulation (5

CFR 2422.17(b)) has been added to

subsection (b) of the final rule.

Subsection (c) of the proposed

regulation offered two options for when

the Authority would grant an

application for revi ew of a Regional

Director’s decision. Option 1 retained

the current grounds for review with

minor editorial changes. Option 2

specified that, in addition to satisfying

one or more of those grounds, a party

seeking review was obliged to assert and

establish that the Authority’s decision

would have a substantial impact on

labor-management relations law unless

the Authority determines, in its

discretion, that extraordinary

circumstances exist to grant review.

Option 1 was the overwhelming

preference of those commenting on this

subsection. The final rule adopts a

modified version of option 1. An error

in phraseology in subsection (f) has

been corrected.

Section 2422.32

An incorrect reference in proposed

subsection (a)(2) has been revised to

refer to section 2422.31(e). The

‘‘Revocations’’ subsection, mistakenly

identified as subsection (c), has been

redesignated as subsection (b).

Section 2422.33

Final rule is same as proposed rule.

Section 2422.34

Several commenters noted and

objected to subsection (a) of the

proposed regulation changing current

law by requiring the fulfillment of

representational and bargaining

obligations during periods when there is

a ‘‘question concerning representation.’’

The commenters are correct that this

subsection is, in some respects, a change

from current law. This revision is

intended to allow more flexibility

during such periods through the

exercise of bargaining and

representational obligations. As such,

the modification of the law enhances

both government efficiency and federal

sector labor relations. Proposed

subsection (b) has been amended by

adding statutory references which

define the term ‘‘employee’’ and provide

for which employees may be included

within a unit. The inclusion of this

phrase is intended to clarify that

subsection (b) only trumps subsection

(a) to the extent that subsection (b)

allows parties to take action based on

unit status of individuals.

Part 2429

Changes to Part 2429 are required as

a result of the different section numbers

in the revised Part 2422.

Section 2429.21

In subsection (a), in discussing how

time will be computed in various bar

situations, there are two references to

sections 2422.3 (c) and (d). In the

revised regulations, the bars to which

this section refers will be located in

section 2422.12 (c), (d), (e), and (f). In

subsection (b), the filing of a

representation petition is listed as an

exception to the ‘‘postmark date’’ rule

and reference is made to section 2422.2.

Because the revised regulations have

numerous sections dealing with such

filings, the reference is changed to Part

2422.

Section 2429.22

The revised regulations address

applications for review of a Regional

Director Decision and Order in section

2422.31. Accordingly, the reference to

section 2422.17 is changed to section

2422.31.

List of Subjects

5 CFR Part 2421

Government employees, Labormanagement relations.

5 CFR Part 2422

Administrative practice and

procedure, Government employees,

Labor unions.

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 2421, 2422, and

2429 of its regulations as follows:

PART 2421—MEANING OF TERMS AS

USED IN THIS SUBCHAPTER

1. The authority citation for Part 2421

continues to read as follows:

Authority: 5 U.S.C. 7134.

2. Section 2421.11 is revised to read

as follows:

§ 2421.11 Party.

Party means:

(a) Any labor organization, employing

agency or activity or individual filing a

charge, petition, or request;

(b) Any labor organization or agency

or activity

(1) Named as

(i) A charged party in a charge,

(ii) A respondent in a complaint, or

(iii) An employing agency or activity

or an incumbent labor organization in a

petition;

(2) Whose intervention in a

proceeding has been permitted or

directed by the Authority; or

(3) Who participated as a party

(i) In a matter that was decided by an

agency head under 5 U.S.C. 7117, or

(ii) In a matter where the award of an

arbitrator was issued; and

(c) The General Counsel, or the

General Counsel’s designated

representative, in appropriate

proceedings.

3. Sections 2421.18 through 2421.22

are added to read as follows:

§ 2421.18 Petitioner.

Petitioner means the party filing a

petition under Part 2422 of this

Subchapter.

§ 2421.19 Eligibility period.

Eligibility period means the payroll

period during which an employee must

be in an employment status with an

agency or activity in order to be eligible

to vote in a representation election

under Part 2422 of this Subchapter.

§ 2421.20 Election agreement.

Election agreement means an

agreement under Part 2422 of this

Subchapter signed by all the parties,

and approved by the Regional Director,

concerning the details and procedures

of a representation election in an

appropriate unit.

§ 2421.21 Affected by issues raised.

The phrase affected by issues raised,

as used in Part 2422, should be

construed broadly to include parties and

other labor organizations, or agencies or

activities that have a connection to

employees affected by, or questions

presented in, a proceeding.

§ 2421.22 Determinative challenged

ballots.

Determinative challenged ballots are

challenges that are unresolved prior to

the tally and sufficient in number after

the tally to affect the results of the

election.

4. Part 2422 is revised to read as

follows:

PART 2422—REPRESENTATION

PROCEEDINGS

Sec.

2422.1 Purposes of a petition.

2422.2 Standing to file a petition.

2422.3 Contents of a petition.

2422.4 Service requirements.

2422.5 Filing petitions.

2422.6 Notification of filing.

2422.7 Posting notice of filing of a petition.

2422.8 Intervention and cross-petitions.
67292 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

2422.9 Adequacy of showing of interest.

2422.10 Validity of showing of interest.

2422.11 Challenge to the status of a labor

organization.

2422.12 Timeliness of petitions seeking an

election.

2422.13 Resolution of issues raised by a

petition.

2422.14 Effect of withdrawal/dismissal.

2422.15 Duty to furnish information and

cooperate.

2422.16 Election agreements or directed

elections.

2422.17 Notice of hearing and prehearing

conference.

2422.18 Hearing Procedures.

2422.19 Motions.

2422.20 Rights of parties at a hearing.

2422.21 Duties and powers of the Hearing

Officer.

2422.22 Objections to the conduct of the

hearing.

2422.23 Election procedures.

2422.24 Challenged ballots.

2422.25 Tally of ballots.

2422.26 Objections to the election.

2422.27 Determinative challenged ballots

and objections.

2422.28 Runoff elections.

2422.29 Inconclusive elections.

2422.30 Regional Director investigations,

notices of hearings, actions and

Decisions and Orders.

2422.31 Application for review of a

Regional Director Decision and Order.

2422.32 Certifications and revocations.

2422.33 Relief obtainable under Part 2423.

2422.34 Rights and obligations during the

pendency of representation proceedings.

Authority: 5 U.S.C. 7134.

§ 2422.1 Purposes of a petition.

A petition may be filed for the

following purposes:

(a) Elections or Eligibility for dues

allotment. To request:

(1) (i) An election to determine if

employees in an appropriate unit wish

to be represented for the purpose of

collective bargaining by an exclusive

representative, and/or

(ii) A determination of eligibility for

dues allotment in an appropriate unit

without an exclusive representative; or

(2) an election to determine if

employees in a unit no longer wish to

be represented for the purpose of

collective bargaining by an exclusive

representative.

(3) Petitions under this subsection

must be accompanied by an appropriate

showing of interest.

(b) Clarification or Amendment. To

clarify, and/or amend:

(1) A recognition or certification then

in effect; and/or

(2) Any other matter relating to

representation.

(c) Consolidation. To consolidate two

or more units, with or without an

election, in an agency and for which a

labor organization is the exclusive

representative.

§ 2422.2 Standing to file a petition.

A representation petition may be filed

by: an individual; a labor organization;

two or more labor organizations acting

as a joint-petitioner; an individual

acting on behalf of any employee(s); an

agency or activity; or a combination of

the above: Provided, however, that

(a) only a labor organization has

standing to file a petition pursuant to

section 2422.1(a)(1);

(b) only an individual has standing to

file a petition pursuant to section

2422.1(a)(2); and

(c) only an agency or a labor

organization may file a petition

pursuant to section 2422.1(b) or (c).

§ 2422.3 Contents of a petition.

(a) What to file. A petition must be

filed on a form prescribed by the

Authority and contain the following

information:

(1) The name and mailing address for

each agency or activity affected by

issues raised in the petition, including

street number, city, state and zip code.

(2) The name, mailing address and

work telephone number of the contact

person for each agency or activity

affected by issues raised in the petition.

(3) The name and mailing address for

each labor organization affected by

issues raised in the petition, including

street number, city, state and zip code.

If a labor organization is affiliated with

a national organization, the local

designation and the national affiliation

should both be included. If a labor

organization is an exclusive

representative of any of the employees

affected by issues raised in the petition,

the date of the recognition or

certification and the date any collective

bargaining agreement covering the unit

will expire or when the most recent

agreement did expire should be

included, if known.

(4) The name, mailing address and

work telephone number of the contact

person for each labor organization

affected by issues raised in the petition.

(5) The name and mailing address for

the petitioner, including street number,

city, state and zip code. If a labor

organization petitioner is affiliated with

a national organization, the local

designation and the national affiliation

should both be included.

(6) A description of the unit(s)

affected by issues raised in the petition.

The description should generally

indicate the geographic locations and

the classifications of the employees

included (or sought to be included) in,

and excluded (or sought to be excluded)

from, the unit.

(7) The approximate number of

employees in the unit(s) affected by

issues raised in the petition.

(8) A clear and concise statement of

the issues raised by the petition and the

results the petitioner seeks.

(9) A declaration by the person

signing the petition, under the penalties

of the Criminal Code (18 U.S.C. 1001),

that the contents of the petition are true

and correct to the best of the person’s

knowledge and belief.

(10) The signature, title, mailing

address and telephone number of the

person filing the petition.

(b) Compliance with 5 U.S.C. 7111(e).

A labor organization/petitioner

complies with 5 U.S.C. 7111(e) by

submitting to the agency or activity and

to the Department of Labor a roster of

its officers and representatives, a copy

of its constitution and bylaws, and a

statement of its objectives. By signing

the petition form, the labor

organization/petitioner certifies that it

has submitted these documents to the

activity or agency and to the Department

of Labor.

(c) Showing of interest supporting a

representation petition. When filing a

petition requiring a showing of interest,

the petitioner must:

(1) So indicate on the petition form;

(2) Submit with the petition a

showing of interest of not less than

thirty percent (30%) of the employees in

the unit involved in the petition; and

(3) Include an alphabetical list of the

names constituting the showing of

interest.

(d) Petition seeking dues allotment.

When there is no exclusive

representative, a petition seeking

certification for dues allotment shall be

accompanied by a showing of

membership in the petitioner of not less

than ten percent (10%) of the employees

in the unit claimed to be appropriate.

An alphabetical list of names

constituting the showing of membership

must be submitted.

§ 2422.4 Service requirements.

Every petition, motion, brief, request,

challenge, written objection, or

application for review shall be served

on all parties affected by issues raised

in the filing. The service shall include

all documentation in support thereof,

with the exception of a showing of

interest, evidence supporting challenges

to the validity of a showing of interest,

and evidence supporting objections to

an election. The filer must submit a

written statement of service to the

Regional Director.

§ 2422.5 Filing petitions.

(a) Where to file. Petitions must be

filed with the Regional Director for the
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67293

region in which the unit or employee(s)

affected by issues raised in the petition

are located. If the unit(s) or employees

are located in two or more regions of the

Authority, the petitions must be filed

with the Regional Director for the region

in which the headquarters of the agency

or activity is located.

(b) Number of copies. An original and

two (2) copies of the petition and the

accompanying material must be filed

with the Regional Director.

(c) Date of filing. A petition is filed

when it is received by the appropriate

Regional Director.

§ 2422.6 Notification of filing.

(a) Notification to parties. After a

petition is filed, the Regional Director

will notify any labor organization,

agency or activity that the parties have

identified as being affected by issues

raised by the petition, that a petition has

been filed with the Regional Director.

The Regional Director will also make

reasonable efforts to identify and notify

any other party affected by the issues

raised by the petition.

(b) Contents of the notification. The

notification will inform the labor

organization, agency or activity of:

(1) The name of the petitioner;

(2) The description of the unit(s) or

employees affected by issues raised in

the petition; and,

(3) A statement that all affected

parties should advise the Regional

Director in writing of their interest in

the issues raised in the petition.

§ 2422.7 Posting notice of filing of a

petition.

(a) Posting notice of petition. When

appropriate, the Regional Director, after

the filing of a representation petition,

will direct the agency or activity to post

copies of a notice to all employees in

places where notices are normally

posted for the employees affected by

issues raised in the petition and/or

distribute copies of a notice in a manner

by which notices are normally

distributed.

(b) Contents of notice. The notice

shall advise affected employees about

the petition.

(c) Duration of notice. The notice

should be conspicuously posted for a

period of ten (10) days and not be

altered, defaced, or covered by other

material.

§ 2422.8 Intervention and cross-petitions.

(a) Cross-petitions. A cross-petition is

a petition which involves any

employees in a unit covered by a

pending representation petition. Crosspetitions must be filed in accordance

with this subpart.

(b) Intervention requests and crosspetitions. A request to intervene and a

cross-petition, accompanied by any

necessary showing of interest, must be

submitted in writing and filed with

either the Regional Director or the

Hearing Officer before the hearing

opens, unless good cause is shown for

granting an extension. If no hearing is

held, a request to intervene and a crosspetition must be filed prior to action

being taken pursuant to § 2422.30.

(c) Labor organization intervention

requests. Except for incumbent

intervenors, a labor organization seeking

to intervene shall submit a statement

that it has complied with 5 U.S.C.

7111(e) and one of the following:

(1) A showing of interest of ten

percent (10%) or more of the employees

in the unit covered by a petition seeking

an election, with an alphabetical list of

the names of the employees constituting

the showing of interest; or

(2) A current or recently expired

collective bargaining agreement

covering any of the employees in the

unit affected by issues raised in the

petition; or

(3) Evidence that it is or was, prior to

a reorganization, the recognized or

certified exclusive representative of any

of the employees affected by issues

raised in the petition.

(d) Incumbent. An incumbent

exclusive representative, without regard

to the requirements of paragraph (c) of

this section, will be considered a party

in any representation proceeding raising

issues that affect employees the

incumbent represents, unless it serves

the Regional Director with a written

disclaimer of any representation interest

in the claimed unit.

(e) Employing agency. An agency or

activity will be considered a party if any

of its employees are affected by issues

raised in the petition.

(f) Agency or activity intervention. An

agency or activity seeking to intervene

in any representation proceeding must

submit evidence that one or more

employees of the agency or activity may

be affected by issues raised in the

petition.

§ 2422.9 Adequacy of showing of interest.

(a) Adequacy. Adequacy of a showing

of interest refers to the percentage of

employees in the unit involved as

required by §§ 2422.3 (c) and (d) and

2422.8(c)(1).

(b) Regional Director investigation

and Decision and Order. The Regional

Director will conduct such investigation

as deemed appropriate. A Regional

Director’s determination that the

showing of interest is adequate is final

and binding and not subject to collateral

attack at a representation hearing or on

appeal to the Authority. If the Regional

Director determines that a showing of

interest is inadequate, the Regional

Director will issue a Decision and Order

dismissing the petition, or denying a

request for intervention.

§ 2422.10 Validity of showing of interest.

(a) Validity. Validity questions are

raised by challenges to a showing of

interest on grounds other than

adequacy.

(b) Validity challenge. The Regional

Director or any party may challenge the

validity of a showing of interest.

(c) When and where validity

challenges may be filed. Party

challenges to the validity of a showing

of interest must be in writing and filed

with the Regional Director or the

Hearing Officer before the hearing

opens, unless good cause is shown for

granting an extension. If no hearing is

held, challenges to the validity of a

showing of interest must be filed prior

to action being taken pursuant to

§ 2422.30.

(d) Contents of validity challenges.

Challenges to the validity of a showing

of interest must be supported with

evidence.

(e) Regional Director investigation and

Decision and Order. The Regional

Director will conduct such investigation

as deemed appropriate. The Regional

Director’s determination that a showing

of interest is valid is final and binding

and is not subject to collateral attack or

appeal to the Authority. If the Regional

Director finds that the showing of

interest is not valid, the Regional

Director will issue a Decision and Order

dismissing the petition or denying the

request to intervene.

§ 2422.11 Challenge to the status of a

labor organization.

(a) Basis of challenge to labor

organization status. The only basis on

which a challenge to the status of a

labor organization may be made is

compliance with 5 U.S.C. 7103(a)(4).

(b) Format and time for filing a

challenge. Any party filing a challenge

to the status of a labor organization

involved in the processing of a petition

must do so in writing to the Regional

Director or the Hearing Officer before

the hearing opens, unless good cause is

shown for granting an extension. If no

hearing is held, challenges must be filed

prior to action being taken pursuant to

§ 2422.30.

§ 2422.12 Timeliness of petitions seeking

an election.

(a) Election bar. Where there is no

certified exclusive representative, a
67294 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

petition seeking an election will not be

considered timely if filed within twelve

(12) months of a valid election involving

the same unit or a subdivision of the

same unit.

(b) Certification bar. Where there is a

certified exclusive representative of

employees, a petition seeking an

election will not be considered timely if

filed within twelve (12) months after the

certification of the exclusive

representative of the employees in an

appropriate unit. If a collective

bargaining agreement covering the

claimed unit is pending agency head

review under 5 U.S.C. 7114(c) or is in

effect, paragraphs (c), (d), or (e) of this

section apply.

(c) Bar during 5 U.S.C. 7114(c) agency

head review. A petition seeking an

election will not be considered timely if

filed during the period of agency head

review under 5 U.S.C. 7114(c). This bar

expires upon either the passage of thirty

(30) days absent agency head action, or

upon the date of any timely agency head

action.

(d) Contract bar where the contract is

for three (3) years or less. Where a

collective bargaining agreement is in

effect covering the claimed unit and has

a term of three (3) years or less from the

date it became effective, a petition

seeking an election will be considered

timely if filed not more than one

hundred and five (105) and not less than

sixty (60) days prior to the expiration of

the agreement.

(e) Contract bar where the contract is

for more than three (3) years. Where a

collective bargaining agreement is in

effect covering the claimed unit and has

a term of more than three (3) years from

the date it became effective, a petition

seeking an election will be considered

timely if filed not more than one

hundred and five (105) and not less than

sixty (60) days prior to the expiration of

the initial three (3) year period, and any

time after the expiration of the initial

three (3) year period.

(f) Unusual circumstances. A petition

seeking an election or a determination

relating to representation matters may

be filed at any time when unusual

circumstances exist that substantially

affect the unit or majority

representation.

(g) Premature extension. Where a

collective bargaining agreement with a

term of three (3) years or less has been

extended prior to sixty (60) days before

its expiration date, the extension will

not serve as a basis for dismissal of a

petition seeking an election filed in

accordance with this section.

(h) Contract requirements. Collective

bargaining agreements, including

agreements that go into effect under 5

U.S.C. 7114(c) and those that

automatically renew without further

action by the parties, do not constitute

a bar to a petition seeking an election

under this section unless a clear and

unambiguous effective date, renewal

date where applicable, duration, and

termination date are ascertainable from

the agreement and relevant

accompanying documentation.

§ 2422.13 Resolution of issues raised by a

petition.

(a) Meetings prior to filing a

representation petition. All parties

affected by the representation issues

that may be raised in a petition are

encouraged to meet prior to the filing of

the petition to discuss their interests

and narrow and resolve the issues. If

requested by all parties a representative

of the appropriate Regional Office will

participate in these meetings.

(b) Meetings to narrow and resolve the

issues after the petition is filed. After a

petition is filed, the Regional Director

may require all affected parties to meet

to narrow and resolve the issues raised

in the petition.

§ 2422.14 Effect of withdrawal/dismissal.

(a) Withdrawal/dismissal less than

sixty (60) days before contract

expiration. When a petition seeking an

election that has been timely filed is

withdrawn by the petitioner or

dismissed by the Regional Director less

than sixty (60) days prior to the

expiration of an existing agreement

between the incumbent exclusive

representative and the agency or activity

or any time after the expiration of the

agreement, another petition seeking an

election will not be considered timely if

filed within a ninety (90) day period

from either:

(1) The date the withdrawal is

approved; or

(2) The date the petition is dismissed

by the Regional Director when no

application for review is filed with the

Authority; or

(3) The date the Authority rules on an

application for review. Other pending

petitions that have been timely filed

under this Part will continue to be

processed.

(b) Withdrawal by petitioner. A

petitioner who submits a withdrawal

request for a petition seeking an election

that is received by the Regional Director

after the notice of hearing issues or after

approval of an election agreement,

whichever occurs first, will be barred

from filing another petition seeking an

election for the same unit or any

subdivision of the unit for six (6)

months from the date of the approval of

the withdrawal by the Regional Director.

(c) Withdrawal by incumbent. When

an election is not held because the

incumbent disclaims any representation

interest in a unit, a petition by the

incumbent seeking an election involving

the same unit or a subdivision of the

same unit will not be considered timely

if filed within six (6) months of

cancellation of the election.

§ 2422.15 Duty to furnish information and

cooperate.

(a) Relevant information. After a

petition is filed, all parties must, upon

request of the Regional Director, furnish

the Regional Director and serve all

parties affected by issues raised in the

petition with information concerning

parties, issues, and agreements raised in

or affected by the petition.

(b) Inclusions and exclusions. After a

petition seeking an election is filed, the

Regional Director may direct the agency

or activity to furnish the Regional

Director and all parties affected by

issues raised in the petition with a

current alphabetized list of employees

and job classifications included in and/

or excluded from the existing or claimed

unit affected by issues raised in the

petition.

(c) Cooperation. All parties are

required to cooperate in every aspect of

the representation process. This

obligation includes cooperating fully

with the Regional Director, submitting

all required and requested information,

and participating in prehearing

conferences and hearings. The failure to

cooperate in the representation process

may result in the Regional Director

taking appropriate action, including

dismissal of the petition or denial of

intervention.

§ 2422.16 Election agreements or directed

elections.

(a) Election agreements. Parties are

encouraged to enter into election

agreements.

(b) Regional Director directed

election. If the parties are unable to

agree on procedural matters,

specifically, the eligibility period,

method of election, dates, hours, or

locations of the election, the Regional

Director will decide election procedures

and issue a Direction of Election,

without prejudice to the rights of a party

to file objections to the procedural

conduct of the election.

(c) Opportunity for a hearing. Before

directing an election, the Regional

Director shall provide affected parties

an opportunity for a hearing on other

than procedural matters, and thereafter

may:

(1) Issue a Decision and Order; or

(2) If there are no questions regarding

unit appropriateness, issue a Direction
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67295

of Election without a Decision and

Order.

(d) Challenges or objections to a

directed election. A Direction of

Election issued under this section will

be issued without prejudice to the right

of a party to file a challenge to the

eligibility of any person participating in

the election and/or objections to the

election.

§ 2422.17 Notice of hearing and prehearing

conference.

(a) Purpose of notice of a hearing. The

Regional Director may issue a notice of

hearing involving any issues raised in

the petition.

(b) Contents. The notice of hearing

will advise affected parties about the

hearing. The Regional Director will also

notify affected parties of the issues

raised in the petition and establish a

date for the prehearing conference.

(c) Prehearing conference. A

prehearing conference will be

conducted by the Hearing Officer, either

by meeting or teleconference. All parties

must participate in a prehearing

conference and be prepared to fully

discuss, narrow and resolve the issues

set forth in the notification of the

prehearing conference.

(d) No interlocutory appeal of hearing

determination. A Regional Director’s

determination of whether to issue a

notice of hearing is not appealable to the

Authority.

§ 2422.18 Hearing procedures.

(a) Purpose of a hearing.

Representation hearings are considered

investigatory and not adversarial. The

purpose of the hearing is to develop a

full and complete record of relevant and

material facts.

(b) Conduct of hearing. Hearings will

be open to the public unless otherwise

ordered by the Hearing Officer. There is

no burden of proof, with the exception

of proceedings on objections to elections

as provided for in § 2422.27(b). Formal

rules of evidence do not apply.

(c) Hearing officer. Hearings will be

conducted by a Hearing Officer

appointed by the Regional Director.

Another Hearing Officer may be

substituted for the presiding Hearing

Officer at any time.

(d) Transcript. An official reporter

will make the official transcript of the

hearing. Copies of the official transcript

may be examined in the appropriate

Regional Office during normal working

hours. Requests by parties to purchase

copies of the official transcript should

be made to the official hearing reporter.

§ 2422.19 Motions.

(a) Purpose of a motion. Subsequent

to the issuance of a Notice of Hearing in

a representation proceeding, a party

seeking a ruling, an order, or relief must

do so by filing or raising a motion

stating the order or relief sought and the

grounds therefor. Challenges and other

filings referenced in other sections of

this subpart may, in the discretion of the

Regional Director or Hearing Officer, be

treated as a motion.

(b) Prehearing motions. Prehearing

motions must be filed in writing with

the Regional Director. Any response

must be filed with the Regional Director

within five (5) days after service of the

motion. The Regional Director may rule

on the motion or refer the motion to the

Hearing Officer.

(c) Motions made at the hearing.

During the hearing, motions will be

made to the Hearing Officer and may be

oral on the record, unless otherwise

required in this subpart to be in writing.

Responses may be oral on the record or

in writing, but, absent permission of the

Hearing Officer, must be provided

before the hearing closes. When

appropriate, the Hearing Officer will

rule on motions made at the hearing or

referred to the Hearing Officer by the

Regional Director.

(d) Posthearing motions. Motions

made after the hearing closes must be

filed in writing with the Regional

Director. Any response to a posthearing

motion must be filed with the Regional

Director within five (5) days after

service of the motion.

§ 2422.20 Rights of parties at a hearing.

(a) Rights. A party at a hearing will

have the right:

(1) To appear in person or by a

representative;

(2) To examine and cross-examine

witnesses; and

(3) To introduce into the record

relevant evidence.

(b) Documentary evidence and

stipulations. Parties must submit two (2)

copies of documentary evidence to the

Hearing Officer and copies to all other

parties. Stipulations of fact between/

among the parties may be introduced

into evidence.

(c) Oral argument. Parties will be

entitled to a reasonable period prior to

the close of the hearing for oral

argument. Presentation of a closing oral

argument does not preclude a party

from filing a brief under paragraph (d)

of this section.

(d) Briefs. A party will be afforded an

opportunity to file a brief with the

Regional Director.

(1) An original and two (2) copies of

a brief must be filed with the Regional

Director within thirty (30) days from the

close of the hearing.

(2) A written request for an extension

of time to file a brief must be filed with

and received by the Regional Director

no later than five (5) days before the

date the brief is due.

(3) No reply brief may be filed

without permission of the Regional

Director.

§ 2422.21 Duties and powers of the

Hearing Officer.

(a) Duties of the Hearing Officer. The

Hearing Officer will receive evidence

and inquire fully into the relevant and

material facts concerning the matters

that are the subject of the hearing, and

may make recommendations on the

record to the Regional Director.

(b) Powers of the Hearing Officer.

During the period a case is assigned to

a Hearing Officer by the Regional

Director and prior to the close of the

hearing, the Hearing Officer may take

any action necessary to schedule,

conduct, continue, control, and regulate

the hearing, including ruling on motions

when appropriate.

§ 2422.22 Objections to the conduct of the

hearing.

(a) Objections. Objections are oral or

written complaints concerning the

conduct of a hearing.

(b) Exceptions to rulings. There are

automatic exceptions to all adverse

rulings.

§ 2422.23 Election procedures.

(a) Regional Director conducts or

supervises election. The Regional

Director will decide to conduct or

supervise the election. In supervised

elections, agencies will perform all acts

as specified in the Election Agreement

or Direction of Election.

(b) Notice of election. Prior to the

election a notice of election, prepared

by the Regional Director, will be posted

by the activity in places where notices

to employees are customarily posted

and/or distributed in a manner by

which notices are normally distributed.

The notice of election will contain the

details and procedures of the election,

including the appropriate unit, the

eligibility period, the date(s), hour(s)

and location(s) of the election, a sample

ballot, and the effect of the vote.

(c) Sample ballot. The reproduction of

any document purporting to be a copy

of the official ballot that suggests either

directly or indirectly to employees that

the Authority endorses a particular

choice in the election may constitute

grounds for setting aside an election if

objections are filed under § 2422.26.

(d) Secret ballot. All elections will be

by secret ballot.

(e) Intervenor withdrawal from ballot.

When two or more labor organizations
67296 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

are included as choices in an election,

an intervening labor organization may,

prior to the approval of an election

agreement or before the direction of an

election, file a written request with the

Regional Director to remove its name

from the ballot. If the request is not

received prior to the approval of an

election agreement or before the

direction of an election, unless the

parties and the Regional Director agree

otherwise, the intervening labor

organization will remain on the ballot.

The Regional Director’s decision on the

request is final and not subject to the

filing of an application for review with

the Authority.

(f) Incumbent withdrawal from ballot

in an election to decertify an incumbent

representative. When there is no

intervening labor organization, an

election to decertify an incumbent

exclusive representative will not be held

if the incumbent provides the Regional

Director with a written disclaimer of

any representation interest in the unit.

When there is an intervenor, an election

will be held if the intervening labor

organization proffers a thirty percent

(30%) showing of interest within the

time period established by the Regional

Director.

(g) Petitioner withdraws from ballot in

an election. When there is no

intervening labor organization, an

election will not be held if the petitioner

provides the Regional Director with a

written request to withdraw the

petition. When there is an intervenor, an

election will be held if the intervening

labor organization proffers a thirty

percent (30%) showing of interest

within the time period established by

the Regional Director.

(h) Observers. All parties are entitled

to representation at the polling

location(s) by observers of their own

selection subject to the Regional

Director’s approval.

(1) Parties desiring to name observers

must file in writing with the Regional

Director a request for specifically named

observers at least fifteen (15) days prior

to an election. The Regional Director

may grant an extension of time for filing

a request for specifically named

observers for good cause where a party

requests such an extension or on the

Regional Director’s own motion. The

request must name and identify the

observers requested.

(2) An agency or activity may use as

its observers any employees who are not

eligible to vote in the election, except:

(i) Supervisors or management

officials;

(ii) Employees who have any official

connection with any of the labor

organizations involved; or

(iii) Non-employees of the Federal

government.

(3) A labor organization may use as its

observers any employees eligible to vote

in the election, except:

(i) Employees on leave without pay

status who are working for the labor

organization involved; or

(ii) Employees who hold an elected

office in the union.

(4) Objections to a request for specific

observers must be filed with the

Regional Director stating the reasons in

support within five (5) days after service

of the request.

(5) The Regional Director’s ruling on

requests for and objections to observers

is final and binding and is not subject

to the filing of an application for review

with the Authority.

§ 2422.24 Challenged ballots.

(a) Filing challenges. A party or the

Regional Director may, for good cause,

challenge the eligibility of any person to

participate in the election prior to the

employee voting.

(b) Challenged ballot procedure. An

individual whose eligibility to vote is in

dispute will be given the opportunity to

vote a challenged ballot. If the parties

and the Region are unable to resolve the

challenged ballot(s) prior to the tally of

ballots, the unresolved challenged

ballot(s) will be impounded and

preserved until a determination can be

made, if necessary, by the Regional

Director.

§ 2422.25 Tally of ballots.

(a) Tallying the ballots. When the

election is concluded, the Regional

Director will tally the ballots.

(b) Service of the tally. When the tally

is completed, the Regional Director will

serve the tally of ballots on the parties

in accordance with the election

agreement or direction of election.

(c) Valid ballots cast. Representation

will be determined by the majority of

the valid ballots cast.

§ 2422.26 Objections to the election.

(a) Filing objections to the election.

Objections to the procedural conduct of

the election or to conduct that may have

improperly affected the results of the

election may be filed by any party.

Objections must be filed and received

by the Regional Director within five (5)

days after the tally of ballots has been

served. Any objections must be timely

regardless of whether the challenged

ballots are sufficient in number to affect

the results of the election. The

objections must be supported by clear

and concise reasons. An original and

two (2) copies of the objections must be

received by the Regional Director.

(b) Supporting evidence. The

objecting party must file with the

Regional Director evidence, including

signed statements, documents and other

materials supporting the objections

within ten (10) days after the objections

are filed.

§ 2422.27 Determinative challenged ballots

and objections.

(a) Investigation. The Regional

Director will investigate objections and/

or determinative challenged ballots that

are sufficient in number to affect the

results of the election.

(b) Burden of proof. A party filing

objections to the election bears the

burden of proof by a preponderance of

the evidence concerning those

objections. However, no party bears the

burden of proof on challenged ballots.

(c) Regional Director Action. After

investigation, the Regional Director will

take appropriate action consistent with

§ 2422.30.

(d) Consolidated hearing on

objections and/or determinative

challenged ballots and an unfair labor

practice hearing. When appropriate, and

in accordance with § 2422.33, objections

and/or determinative challenged ballots

may be consolidated with an unfair

labor practice hearing. Such

consolidated hearings will be conducted

by an Administrative Law Judge.

Exceptions and related submissions

must be filed with the Authority and the

Authority will issue a decision in

accordance with Part 2423 of this

chapter, except for the following:

(1) Sections 2423.18 and 2423.19(j) of

this Subchapter concerning the burden

of proof and settlement conferences are

not applicable;

(2) The Administrative Law Judge

may not recommend remedial action to

be taken or notices to be posted as

provided by § 2423.26(a) of this

Subchapter; and,

(3) References to ‘‘charge’’ and

‘‘complaint’’ in § 2423.26(b) of this

chapter will be omitted.

§ 2422.28 Runoff elections.

(a) When a runoff may be held. A

runoff election is required in an election

involving at least three (3) choices, one

of which is ‘‘no union’’ or ‘‘neither,’’

when no choice receives a majority of

the valid ballots cast. However, a runoff

may not be held until the Regional

Director has ruled on objections to the

election and determinative challenged

ballots.

(b) Eligibility. Employees who were

eligible to vote in the original election

and who are also eligible on the date of

the runoff election may vote in the

runoff election.
Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations 67297

(c) Ballot. The ballot in the runoff

election will provide for a selection

between the two choices receiving the

largest and second largest number of

votes in the election.

§ 2422.29 Inconclusive elections.

(a) Inconclusive elections. An

inconclusive election is one where

challenged ballots are not sufficient to

affect the outcome of the election and

one of the following occurs:

(1) The ballot provides for at least

three (3) choices, one of which is ‘‘no

union’’ or ‘‘neither’’ and the votes are

equally divided; or

(2) The ballot provides for at least

three (3) choices, the choice receiving

the highest number of votes does not

receive a majority, and at least two other

choices receive the next highest and

same number of votes; or

(3) When a runoff ballot provides for

a choice between two labor

organizations and results in the votes

being equally divided; or

(4) When the Regional Director

determines that there have been

significant procedural irregularities.

(b) Eligibility to vote in a rerun

election. A current payroll period will

be used to determine eligibility to vote

in a rerun election.

(c) Ballot. If the Regional Director

determines that the election is

inconclusive, the election will be rerun

with all the choices that appeared on

the original ballot.

(d) Number of reruns. There will be

only one rerun of an inconclusive

election. If the rerun results in another

inconclusive election, the tally of ballots

will indicate a majority of valid ballots

has not been cast for any choice and a

certification of results will be issued. If

necessary, a runoff may be held when

an original election is rerun.

§ 2422.30 Regional Director investigations,

notices of hearings, actions, and Decisions

and Orders.

(a) Regional Director investigation.

The Regional Director will make such

investigation of the petition and any

other matter as the Regional Director

deems necessary.

(b) Regional Director notice of

hearing. The Regional Director will

issue a notice of hearing to inquire into

any matter about which a material issue

of fact exists, and any time there is

reasonable cause to believe a question

exists regarding unit appropriateness.

(c) Regional Director action and

Decision and Order. After investigation

and/or hearing, when a hearing has been

ordered, the Regional Director will

resolve the matter in dispute and, when

appropriate, direct an election or

approve an election agreement, or issue

a Decision and Order.

(d) Appeal of Regional Director

Decision and Order. A party may file

with the Authority an application for

review of a Regional Director Decision

and Order.

(e) Contents of the Record. When no

hearing has been conducted all material

submitted to and considered by the

Regional Director during the

investigation becomes a part of the

record. When a hearing has been

conducted, the transcript and all

material entered into evidence,

including any posthearing briefs,

become a part of the record.

§ 2422.31 Application for review of a

Regional Director Decision and Order.

(a) Filing an application for review. A

party must file an application for review

with the Authority within sixty (60)

days of the Regional Director’s Decision

and Order. The sixty (60) day time limit

provided for in 5 U.S.C. 7105(f) may not

be extended or waived.

(b) Contents. An application for

review must be sufficient to enable the

Authority to rule on the application

without recourse to the record; however,

the Authority may, in its discretion,

examine the record in evaluating the

application. An application must

specify the matters and rulings to which

exception(s) is taken, include a

summary of evidence relating to any

issue raised in the application, and

make specific reference to page citations

in the transcript if a hearing was held.

An application may not raise any issue

or rely on any facts not timely presented

to the Hearing Officer or Regional

Director.

(c) Review. The Authority may grant

an application for review only when the

application demonstrates that review is

warranted on one or more of the

following grounds:

(1) The decision raises an issue for

which there is an absence of precedent;

(2) Established law or policy warrants

reconsideration; or,

(3) There is a genuine issue over

whether the Regional Director has:

(i) Failed to apply established law;

(ii) Committed a prejudicial

procedural error;

(iii) Committed a clear and prejudicial

error concerning a substantial factual

matter.

(d) Opposition. A party may file with

the Authority an opposition to an

application for review within ten (10)

days after the party is served with the

application. A copy must be served on

the Regional Director and all other

parties and a statement of service must

be filed with the Authority.

(e) Regional Director Decision and

Order becomes the Authority’s action. A

Decision and Order of a Regional

Director becomes the action of the

Authority when:

(1) No application for review is filed

with the Authority within sixty (60)

days after the date of the Regional

Director’s Decision and Order; or

(2) A timely application for review is

filed with the Authority and the

Authority does not undertake to grant

review of the Regional Director’s

Decision and Order within sixty (60)

days of the filing of the application; or

(3) The Authority denies an

application for review of the Regional

Director’s Decision and Order.

(f) Authority grant of review and stay.

The Authority may rule on the issue(s)

in an application for review in its order

granting the application for review.

Neither filing nor granting an

application for review shall stay any

action ordered by the Regional Director

unless specifically ordered by the

Authority.

(g) Briefs if review is granted. If the

Authority does not rule on the issue(s)

in the application for review in its order

granting review, the Authority may, in

its discretion, afford the parties an

opportunity to file briefs. The briefs will

be limited to the issue(s) referenced in

the Authority’s order granting review.

§ 2422.32 Certifications and revocations.

(a) Certifications. The Regional

Director will issue an appropriate

certification when:

(1) After an election, runoff, or rerun,

(i) No objections are filed or

challenged ballots are not

determinative, or

(ii) Objections and determinative

challenged ballots are decided and

resolved; or

(2) The Regional Director issues a

Decision and Order requiring a

certification and the Decision and Order

becomes the action of the Authority

under § 2422.31(e) or the Authority

otherwise directs the issuance of a

certification.

(b) Revocations. Without prejudice to

any rights and obligations which may

exist under the Statute, the Regional

Director will revoke a recognition or

certification, as appropriate, and

provide a written statement of reasons

when:

(1) An incumbent exclusive

representative files, during a

representation proceeding, a disclaimer

of any representational interest in the

unit; or

(2) Due to a substantial change in the

character and scope of the unit, the unit

is no longer appropriate and an election

is not warranted.
67298 Federal Register / Vol. 60, No. 250 / Friday, December 29, 1995 / Rules and Regulations

§ 2422.33 Relief obtainable under Part

2423.

Remedial relief that was or could have

been obtained as a result of a motion,

objection, or challenge filed or raised

under this subpart, may not be the basis

for similar relief if filed or raised as an

unfair labor practice under Part 2423 of

this Chapter: Provided, however, that

related matters may be consolidated for

hearing as noted in § 2422.27(d) of this

subpart.

§ 2422.34 Rights and obligations during

the pendency of representation

proceedings.

(a) Existing recognitions, agreements,

and obligations under the Statute.

During the pendency of any

representation proceeding, parties are

obligated to maintain existing

recognitions, adhere to the terms and

conditions of existing collective

bargaining agreements, and fulfill all

other representational and bargaining

responsibilities under the Statute.

(b) Unit status of individual

employees. Notwithstanding paragraph

(a) of this section and except as

otherwise prohibited by law, a party

may take action based on its position

regarding the bargaining unit status of

individual employees, pursuant to 5

U.S.C. 7103(a)(2), 7112 (b) and (c):

Provided, however, that its actions may

be challenged, reviewed, and remedied

where appropriate.

PART 2429—MISCELLANEOUS AND

GENERAL REQUIREMENTS

5. The authority citation for Part 2429

continues to read as follows:

Authority: 5 U.S.C. 7134; § 2429.18 also

issued under 28 U.S.C. 2112(a).

6. Section 2429.21 is amended by

revising paragraphs (a) and (b) to read

as follows:

§ 2429.21 Computation of time for filing

papers.

(a) In computing any period of time

prescribed by or allowed by this

subchapter, except in agreement bar

situations described in § 2422.12 (c), (d),

(e), and (f) of this subchapter, and

except as to the filing of exceptions to

an arbitrator’s award under § 2425.1 of

this subchapter, the day of the act,

event, or default from or after which the

designated period of time begins to run

shall not be included. The last day of

the period so computed is to be

included unless it is a Saturday,

Sunday, or a Federal legal holiday in

which event the period shall run until

the end of the next day which is neither

a Saturday, Sunday, or a Federal legal

holiday. Provided, however, in

agreement bar situations described in

§ 2422.12 (c), (d), (e), and (f), if the 60th

day prior to the expiration date of an

agreement falls on Saturday, Sunday, or

a Federal legal holiday, a petition, to be

timely, must be filed by the close of

business on the last official workday

preceding the 60th day. When the

period of time prescribed or allowed is

7 days or less, intermediate Saturdays,

Sundays, and Federal legal holidays

shall be excluded from the

computations.

(b) Except when filing an unfair labor

practice charge pursuant to § 2423.6 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.

If no postmark date is evident on the

mailing, it shall be presumed to have

been mailed 5 days prior to receipt. If

the filing is by personal delivery, it shall

be considered filed on the date it is

received by the Authority or the officer

or agent designated to receive such

matter.

7. 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 to 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, five (5) days shall

be added to the prescribed period:

Provided, however, That five (5) days

shall not be added in any instance

where an extension of time has been

granted.

Dated: December 22, 1995.

Solly Thomas,

Executive Director, Federal Labor Relations

Authority.

[FR Doc. 95–31413 Filed 12–28–95; 8:45 am]

BILLING CODE 6727–01–P

DEPARTMENT OF AGRICULTURE

Office of the Secretary

Farm Service Agency

Natural Resources Conservation

Service

Rural Business-Cooperative Service

Rural Housing Service

Rural Utilities Service

7 CFR Parts 1, 11, 12, 400, 614, 620,

623, 631, 632, 634, 663, 701, 702, 752,

780, 781, and 1900

National Appeals Division Rules of

Procedure

AGENCY: Office of the Secretary,

National Appeals Division, USDA.

ACTION: Interim final rule.

SUMMARY: On May 22, 1995 (60 FR

27044), the National Appeals Division

(NAD) in the Office of the Secretary

published a proposed rule to implement

Title II, Subtitle H, of the Federal Crop

Insurance Reform and Department of

Agriculture Reorganization Act of 1994,

Pub. L. 103–354, 7 U.S.C. 6991 et seq.,

by setting forth procedures for program

participant appeals of adverse decisions

by United States Department of

Agriculture (USDA) agency officials to

NAD. The deadline for receipt of

comments was June 21, 1995. On June

28, 1995 (60 FR 32922) the Office of the

Secretary published an extension of the

deadline for receipt of comments until

July 6, 1995. From the period May 22 to

July 6, 1995, forty-six timely public

comments were received in response to

the proposed rulemaking. Based on

these comments, including concerns

regarding the need for an additional

comment period on the proposed rules

and the need for a comment period on

USDA agency conforming rules, but

mindful of the immediate need for

published rules, the Secretary now

issues these rules on an interim final

basis. These rules also include

conforming changes to the former

appeal rules of USDA agencies whose

adverse decisions are now subject to

NAD review.

DATES: Part 11 of this interim rule is

effective January 16, 1996. With the

exception of § 11.9, part 11 of this rule

is applicable as to agency adverse

decisions and NAD appeals for which

hearings have not been held. Section

11.9 of this interim rule is applicable

immediately as to all pending requests

for Director review and is applicable

retroactively to all requests for Director