`[Federal Register Volume 60, Number 250 (Friday, December 29, 1995)]
[Rules and Regulations]
[Pages 67288-67298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31413]



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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.

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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 

[[Page 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 cross- petitions, 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 

[[Page 67290]]
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 Sec. 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. 

[[Page 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, Labor-management 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:


Sec. 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:


Sec. 2421.18  Petitioner.

    Petitioner means the party filing a petition under Part 2422 of 
this Subchapter.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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. 

[[Page 67292]]

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.


Sec. 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.


Sec. 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).


Sec. 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.


Sec. 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.


Sec. 2422.5  Filing petitions.

    (a) Where to file. Petitions must be filed with the Regional 
Director for the 

[[Page 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.


Sec. 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.


Sec. 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.


Sec. 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. 
Cross-petitions must be filed in accordance with this subpart.
    (b) Intervention requests and cross-petitions. 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 cross-petition must be filed prior 
to action being taken pursuant to Sec. 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.


Sec. 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 
Secs. 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.


Sec. 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 Sec. 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.


Sec. 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 Sec. 2422.30.


Sec. 2422.12  Timeliness of petitions seeking an election.

    (a) Election bar. Where there is no certified exclusive 
representative, a 

[[Page 67294]]
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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 

[[Page 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.


Sec. 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.


Sec. 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 Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 2422.26.
    (d) Secret ballot. All elections will be by secret ballot.
    (e) Intervenor withdrawal from ballot. When two or more labor 
organizations 

[[Page 67296]]
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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 2422.30.
    (d) Consolidated hearing on objections and/or determinative 
challenged ballots and an unfair labor practice hearing. When 
appropriate, and in accordance with Sec. 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 Sec. 2423.26(a) of 
this Subchapter; and,
    (3) References to ``charge'' and ``complaint'' in Sec. 2423.26(b) 
of this chapter will be omitted.


Sec. 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.

[[Page 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 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. 

[[Page 67298]]



Sec. 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 
Sec. 2422.27(d) of this subpart.


Sec. 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; Sec. 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:


Sec. 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 
Sec. 2422.12 (c), (d), (e), and (f) of this subchapter, and except as 
to the filing of exceptions to an arbitrator's award under Sec. 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 Sec. 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 
Sec. 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 Sec. 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:


Sec. 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 Sec. 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`