Office of the General Counsel 

Litigation Manual

FEDERAL LABOR RELATIONS AUTHORITY 

OFFICE OF THE GENERAL COUNSEL

LITIGATION MANUAL

The Litigation Manual provides information on prosecuting unfair labor practice 

cases under the Federal Service Labor-Management Relations Statute (the 

Statute). The Litigation Manual has been prepared by the Federal Labor Relations 

Authority (FLRA), Office of the General Counsel (OGC) pursuant to section 7104(f) 

of the Statute. The Litigation Manual is intended to provide a resource tool for 

Regional Office employees when litigating unfair labor practice complaints under 

the Statute. The Manual covers each aspect of the trial process–from the issuance 

of a complaint and notice of hearing and the final issuance of a decision and order. 

 It refers to relevant case law and contains examples of litigation techniques that 

will assist the Trial Attorney in developing a litigation strategy. The Manual is 

divided into two binders. Binder I contains the litigation guidance. Binder 2 

contains reference materials, forms, guidance and models. For information on 

preventing, resolving, and investigating unfair labor practice charges, see the 

Unfair Labor Practice Case Handling Manual. 

The Litigation Manual is published in a handbook style format to make it user 

friendly. The Litigation Manual will be updated annually. Since party 

understanding of the litigation process and regulatory requirements is critical to the 

timely and effective processing of unfair labor practice complaints by the Regional 

Offices, the Litigation Manual is available to all parties and individuals who are 

involved in filing and litigating unfair labor practice complaints. The Litigation 

Manual may be accessed from the FLRA web site, www.FLRA.gov, and is available 

for purchase from the Government Printing Office. 

The Litigation Manual provides guidance for the FLRA, OGC staff when litigating 

unfair labor practice complaints under the Statute. The Litigation Manual is not 

intended to be a condensed version of all substantive law, nor it is intended to be a 

substitute for knowledge of the law. The Litigation Manual is not a ruling or 

directive, nor is it binding upon the FLRA General Counsel, FLRA Administrative 

Law Judges or the FLRA decisional component. Although the Regional Office 

staff refers to the Litigation Manual when processing cases, the Litigation Manual 

does not encompass all situations that may be encountered in litigating unfair labor 

practice complaints. Thus, responsible, professional judgment and experience are 

required in applying and utilizing these guidelines. 

August 2000

OTHER OFFICE OF THE GENERAL COUNSEL 

 RESOURCE MANUALS 
Office of the General Counsel 

Litigation Manual

The Representation Case Handling Manual (REP CHM) provides procedural and 

operational guidance t the General Counsel ‘s staff when processing representation 

petitions filed pursuant to Party 2422 of the FLRA’s regulations. Part One 

discusses processing petitions from providing substantive issues to investigating 

and resolving the underlying representation matters, and to issuing a certification or 

taking other final action. Part One tracks, for the most part, the subject matter 

format in the representation regulations. Part Two consists of resources that the 

General Counsel’s staff uses when processing petitions, including a Cross 

Reference Table, Flow Charts, Appendices, FLRA Forms and Documents, and 

sample Figures. 

The Hearing Officer’s Guide (HOG) describes techniques for conducting hearings 

in FLRA representation proceedings. The first part provides instructions and 

guidance on preparing for and conducting hearings. It includes a sample script and 

discusses specific procedural issues, some commonplace, others novel, that arise 

during hearings. The second part discusses a variety of evidentiary representation 

issues and employee categories. Each topic is defined and includes an outline of 

issues and questions to assist the Hearing Officer and the parties to develop a 

complete record.

The Representation Case Law Guide (RCL) presents a variety of relevant 

substantive issues that arise when processing representation petitions and unfair 

labor practice cases that raise representation issues. The RCL defines each topic, 

discusses relevant case law and sets forth an analytical framework for deciding 

each case consistently and properly. 

The Unfair Labor Practice Case Handling Manual (ULPCHM) provides 

procedural and operational guidance to the General Counsel’s staff when 

processing unfair labor practice charges filed pursuant to Subpart A Party 2423 of 

the FLRA’s regulations. It is divided into 5 Parts that address various topics/issues 

that arise during distinct phases of the ULP process-from pre-charge through pre 

and post investigation. It also codifies the OGC’s policies with respect to: 

Facilitation, Intervention, Training, and Education; Quality of Investigators; Scope of 

Investigations; Injunctions; Prosecutorial Discretion; Settlements; and Appeals. As 

appropriate, the ULPCHM references relevant case law and provides for uniformity 

and best practices; criteria and principles governing Regional discretion and 

judgment; and model and sample forms and letters. 

HOW TO USE 

 THE LITIGATION MANUAL

The Litigation Manual is formatted to help Trial Attorneys in Regional Offices 

prepare for, and litigate, Unfair Labor Practice cases. The subject matters that are 

discussed throughout the Manual are presented in the following sequence: from 

the pre-hearing stage of the process through the hearing stage to the post-hearing 

or final stage of the process. A description of the organization and style of the 
Office of the General Counsel 

Litigation Manual i

Litigation Manual is discussed below as well as, in order of presentation, a 

description of the different sections of the Litigation Manual: 

1. Foreword:

The Foreword explains the purpose of the Manual. 

2. Chart on Unfair Labor Practice Regulatory Time Limits and Document 

Formatting and Service Requirements:

This seven-page document includes a chart that summarizes the 

regulatory requirements governing the particular ULP activity or document 

that is covered in one or more of the Chapters of the Manual. The 

information contained in this chart is not covered in detail in the Manual. 

This chart incorporates the requirements of the post-complaint ULP 

regulations issued on July 31, 1997. 62 Fed. Reg. 40911 that are set forth 

at Part 2423--Unfair Labor Practice Proceedings, subparts B, C, and D 

(§§ 2423.20 through 2423.42). The last page of the document 

summarizes the Office of the General Counsel’s document formatting 

requirements. 

Pre-complaint ULP matters covered by subpart A--Filing, Investigating, 

Resolving, and Acting on Charges (§§ 2423.1 through 2423.12), are 

addressed in the ULP Case Handling Manual. 

 

3. Organization of the Manual into 3 distinct Parts:

The manual is divided into 3 Parts, and each Part is divided into Chapters; 

· Part 1 is entitled “Pre-Hearing” (“Notice of Hearing to Opening of 

Hearing”); 

· Part 2 is entitled “Hearing” (“Opening of the Hearing to Close of 

the Record”); and 

· Part 3 is entitled “Post-Hearing”; 

Parts 1 and 2 are subdivided into several discrete sections: 

· Part 1: Initial Matters, Alternatives to Hearing, 

and Preparation for Hearing 

· Part 2: Preliminary matters, General 

Counsel’s Case, Respondent’s Case, 

and Prior to the Close of Hearing. 

There is a TAB for each Part of the Manual. 

To guide the Trial Attorney, each page has a Header which describes the 

Chapter, and in the case of Parts 1 and 2, the placement of the Chapter 
Office of the General Counsel 

Litigation Manual ii

within a particular section of that Part, and a Footer which indicates that 

the Office of the General Counsel is the author of the Litigation Manual; 

The pages of each Chapter in each of the three Parts of the Manual are 

numbered consecutively. The first number corresponds with the Part, the 

second number corresponds with the Chapter, and the third number 

indicates the page, e.g., 2AA-1 is “2" denotes the second Part--The 

Hearing, “AA” denotes Chapter AA--Witness Using Notes, “-1" indicates 

the first page of the Chapter. 

4. Overview and Objective for each Chapter: 

An Overview describes very generally how the subject 

matter of the Chapter fits within the scheme of the trial 

process. 

The Objective of each Chapter generally describes 

what guidance is provided, i.e., what subtopics are

covered in each Chapter. 

5. Glossary for the Manual:

The following abbreviations are used throughout the

Litigation Manual: 

ALJ Administrative Law Judge 

ALJD Administrative Law Judge Decision 

APA Administrative Procedure Act 

Authority or FLRA Federal Labor Relations 

Authority 

CA Charge against Agency 

Chief ALJ Chief Administrative Law Judge 

CO Charge against Labor Organization 

Fed. R. Evid. Federal Rules of Evidence 

FRCP Federal Rules of Civil Procedure 

FSIP Federal Service Impasses Panel 

GC General Counsel 

LMl Litigation Manual 

MOU Memorandum of Understanding 

MSPB Merit Systems Protections Board 
Office of the General Counsel 

Litigation Manual iii

NLRB National Labor Relations Board 

OALJ Office of Administrative Law 

Judges 

OGC Office of General Counsel 

OPM Office of Personnel Management 

PSIWOC Party Settlement Involving 

Withdrawal of Charge 

RA Regional Attorney 

Region or RO Regional Office 

RD Regional Director 

Regulations Authority’s Rules and Regulations 

Statute Federal Service LaborManagement Relations Statute 

ULP Unfair Labor Practice 

Note: Unless otherwise indicated, all references to

sections in the Manual are to a section of the 

Regulations.

6. Use of the symbol :

 is a symbol that is used throughout the Manual to indicate that what 

follows (in italics) are “practice pointers” or tips for the Trial Attorney. 

7. OGC Policy: 

Any reference to OGC policy is in bold print. 

8. Use of the symbol : 

 is a symbol that is used throughout the Manual at the end of most 

Chapters to indicate cross-references, where appropriate. Crossreferences to specific pages are indicated where the same or similar 

subject matter is covered elsewhere in the Manual with respect to another 

stage in the trial process. 

9. Index:

A subject matter index is located at the back of the Manual. At the end of 
Office of the General Counsel 

Litigation Manual iv

the index is a list of examples or models of documents and oral 

presentations that illustrate matters covered in the Manual. 

10. Table of Authorities: 

The Table of Authorities is divided into 6 parts: (1) FLRA cases; (2) FLRA 

ALJD cases; (3) United States Supreme Court cases; (4) United States 

Court of Appeals cases; (5) United States District Court cases; and (6) 

NLRB cases. This section is located after the Index. 

11. ATTACHMENTS:

The ATTACHMENTS section of the Manual is a compilation of forms, 

policies, models or examples of matters referred to in a particular Chapter. 

 The number of the ATTACHMENT corresponds with the number of the 

Part and Chapter where it is referenced, e.g., ATTACHMENT 1M is 

referred to in Part 1, Chapter M. This section of the Manual, which has a 

TAB, is located after the Table of Authorities. To the extent that the 

ATTACHMENTS section of the Manual contains actual documents that 

have been prepared by staff in the ROs, the document has been sanitized. 

12. References:

The References section, which is located after the ATTACHMENTS, 

contains the Statute, the Back Pay Act and Subparts B, C, and D of Part 

2423 of the Regulations concerning post-complaint matters. 

13. Resources:

This section, which is located after the ATTACHMENTS, contains 

additional resources consulted in the drafting of certain sections of the 

Manual. For more in-depth discussion of a particular topic, the user may 

consult these materials. 

14. Computer accessibility: 

For ease of use, the Manual is comprehensively hyperlinked throughout 

the entire document. Use the hyperlink function of Word Perfect 8 to 

move throughout the Manual and Attachments with ease. For ease of 

access, each Attachment has been placed on the X-Drive as a separate 

document. The substantive part of the Manual is on the Regions’ R-Drive 

as well as the X-Drive (accessible to all OGC employees) and all links to 

an Attachment are to the Attachment that resides on the X-Drive. Unlike 

the hard copy of the Attachments, the Attachments on the X-Drive are 

regular page size but they do not contain page numbers. The Manual 

is also accessible via the FLRA home page at www.flra.gov. Volume 55

and later FLRA cases that are cited in the Manual are accessible by 

computer by clicking on the case citation which will take you to the FLRA 

home page where the decision appears. Click on Volume 55 in the 
Office of the General Counsel 

Litigation Manual v

preceding sentence and you will go directly to the FLRA Decisions 

Navigator. In addition, references to various Federal Rules of Evidence, 

Federal Rules of Civil and Criminal Procedure, and the Federal Register, 

are also hyperlinked to various cites on the Internet where the full text 

appears. 
Office of the General Counsel 

Litigation Manual vi

UNFAIR LABOR PRACTICE REGULATORY TIME LIM

ACTIVITY/ DOCUMENT FILE WITH/SERVE UPON WHEN NO. OF COPI

Charge (a) RD (a) within 6 months(a) original & 4 

 after alleged (copies) 

 ULP 

(b) Party/ies against which (b) same time (b) 1  charge is made (time limit) 

Investigation normally not to of charge commence until 15 

days after charge filed 

Amendment of (a) RD before issuance of (a) orig. & 4 Charge (b) Party/ies against complaint (b) 1(when) 

 which charge is made 

Withdraw a (a) RD before, at, or (a) orig. & 4 2423.9(a)(Charge (b) Party/ies after hearing or 1 if svc. by fax2429.

(b) 1 

ACTIVITY/ 
Office of the General Counsel 

Litigation Manual viiDOCUMENT FILE WITH/SERVE UPON WHEN NO. OF COPI

Issuance of (a) OALJ and parties 2423.20(a) Complaint & (b) All parties 2429.12 Notice of Hearing by certified mail*Amendment of Served on all parties by by RD, if prior to answer 1 Complaint certified mail* 2429.12 

OALJ if after answer, upon orig. & 4 or 1 Served on all party/ies written motion to ALJ 

before hearing or at hearing 

Withdrawal of Served on all parties by RD 2423.20(a) Complaint before hearing 2429.12 Appeal from (a) GC 25 days after (a) orig. & 4 or 1 (fax) RD’s Refusal (b) RD service of refusal (b) 12429.25 to Issue (c) Party/ies to issue complaint(c) 12429.27 Complaint (“should notify plus 5 days 2429.22 

other parties”) 

ACTIVITY/ DOCUMENT FILE WITH/SERVE UPON WHEN NO. OF COPI
Office of the General Counsel 

Litigation Manual viiiExtension of (a) GC 5 days before date (a) orig. & 4 or 1 (fax) Time to File (b) RD appeal is due (20 (b) 12429.25 Appeal (c) Party/ies days after service (c) 12429.27 

(“should notify of refusal to issue other parties”) complaint) plus 

5 days 

Answer to (a) OALJ 20 days after (a) orig. & 4 o

Complaint (b) All Parties service of (b) 1 

complaint or 2429.27 prior to hearing 2429.22 plus 5 days 

Amendment (a) OALJ Before hearing, (a) orig. & 4 oof Answer w/in 20 days after 2429.25 

(b) Party/ies date of svc. of (b) 12429.27 

amended complaint or w/in 20 days after answer is filed 

Subpoena (a) OALJ Not less than 10 12423.28(b) Request days prior to 

opening of hearing 

(b) Presiding ALJ During hearing 1 

ACTIVITY/ DOCUMENT FILE WITH/SERVE UPON WHEN NO. OF COPI
Office of the General Counsel 

Litigation Manual ixPetition (a) OALJ Within 5 days after (a) orig. & 4 oto Revoke (b) Party/ies date of service of (b) 12429.25 Subpoena subpoena 2429.27 

plus 5 days 

(a) Presiding ALJ During hearing if (a) orig. & 4 or 1 fax 

(b) Party/ies subpoena requested(b) 1 

during hearing 

Motions (a) ALJ (a) Pre-hearing (10 days(a) orig. & 4 or 1 

 before hearing, incl.  mot. for Sum. Judg.);2429.25  hearing & post-hear.  (filed w/in 10 days  after hearing; w/in 10  days of receipt of  transcript for mot. to  correct) 

(b) Authority (b) Post-transmission (b) orig. & 4 o

 of case to Authority 

(c) Party/ies (c) 1 

ACTIVITY/ DOCUMENT FILE WITH/SERVE UPON WHEN NO. OF COPI
Office of the General Counsel 

Litigation Manual xResponse (a) ALJ Within 5 days after (a) orig. & 4 or 1 (fax) to Motions (b) Authority date of service plus (b) orig. & 4 o

(c) Party/ies 5 days (unless by fax) (c) 1 

ALJ Brief (a) ALJ Time fixed by ALJ, (a) orig. & 4 o

(b) Party/ies not in excess of 30 (b) 1 

days from close of hearing

Motion for (a) ALJ Not later than 5 (a) orig. & 4 oExtension of (b) Party/ies days before Brief 2423.33 Time to File due (b) 12429.27 ALJ Brief Exceptions (a) Authority Within 25 days (a) orig. & 4 or 1 (fax) & Brief to (b) Party/ies after service of (b) 1 Authority decision plus 5 days ACTIVITY/ DOCUMENT FILE WITH/SERVE UPON WHEN NO. OF COPI

Motion for (a) Authority Authority must (a) orig. & 4 or 1 (fax) 
Office of the General Counsel 

Litigation Manual xiExtension of (b) Party/ies receive not later (b) 1 Time to File than 5 days before Authority date exceptions Brief are due Cross- (a) Authority Within 20 days Exceptions, (b) Party/ies after service of (a) orig. & 4 or 1 (fax)2Opposition to exceptions plus 5 (b) 1 Exceptions & days Support. Brief Stipulation (a) Authority or ALJ Brief filed w/in (a) orig. & 4 or 1 (fax)2& Brief in (b) Party/ies 30 days of Joint Motion (b) 1 Support 2429.27 Reconsid. (a) Authority Within 10 days (a) orig. & 4 or 1 (fax)2of Authority (b) Party/ies after service (b) 12429.25 Order of Authority’s 2429.27 

Decision and Order 
Office of the General Counsel 

Litigation Manual xii

DOCUMENT FORMATTING AND SERVICE

ALL DOCUMENTS FILED BY OGC TRIAL ATTORNEYS MEET THE FOLLOWING REQUIREMENTS1. 8 1⁄2 x 11 inch paper. 2. 1" margins. 3. Double-spaced text and single-spaced footnotes. 4. Justification on left side only. 5. Arial font; 12-point. SERVICE OF DOCUMENTS:1. Complaints and amended complaints before answer filed--certifie2. Compliance letters with Authority orders--first-class mail. 3. All other documents at any stage of the proceedings--whether as 

FAX, where appropriate, or by first-class mail.
Table of Contents

Office of the General Counsel 

Litigation Manual xiii

TABLE OF CONTENTS

PART 1 - PRE-HEARING

INITIAL MATTERS

A. ISSUANCE OF COMPLAINT, NOTICE OF HEARING TIME, DATE AND 

 PLACE .......................................................................................................... 1A-1

1. DRAFTING THE COMPLAINT ......................................................... 1A-1

2. ISSUANCE OF COMPLAINT ........................................................... 1A-2

3. OALJ ISSUANCE OF ORDER UPON RECEIPT OF COMPLAINT .......... 1A-3

4. THE TRANSMITTAL MEMORANDUM .............................................. 1A-4

5. SETTING THE HEARING, TIME, DATE AND PLACE ........................... 1A-5

6. COURT REPORTER .................................................................... 1A-6

7. ANSWER TO COMPLAINT ............................................................ 1A-7

B. CONSOLIDATION ORDER ........................................................................... 1B-1

1. CRITERIA FOR CONSOLIDATION ................................................... 1B-1

2. PROCESSING............................................................................. 1B-1

C. ANALYSIS OF THE CASE FILE ................................................................... 1C-1

1. CASE FILE ANALYSIS ................................................................. 1C-2

2. TRIAL ATTORNEY’S CASE FILE ANALYSIS TASK LIST .................... 1C-8

3. SETTLEMENT EFFORTS AND POTENTIAL FOR SETTLEMENT ............ 1C-9

D. REMEDY ....................................................................................................... 1D-1

1. STATUTORY AUTHORITY ............................................................. 1D-1

2. OGC REMEDY POLICY ............................................................... 1D-3

3. APPROPRIATE REMEDIES ARE CONSIDERED THROUGHOUT THE 

PROCESSING OF A ULP CHARGE AND ULP COMPLAINT ................ 1D-3

4. TRADITIONAL AND NONTRADITIONAL REMEDIES ............................ 1D-6

5. MONETARY RELIEF .................................................................... 1D-8

E. INJUNCTIONS............................................................................................... 1E-1

1. STATUTORY AUTHORITY--§ 7123(d) OF THE STATUTE .................. 1E-1

2. CRITERIA--WHETHER TO SEEK INJUNCTIVE RELIEF ....................... 1E-2

3. PROCESSING REQUEST FOR APPROPRIATE TEMPORARY RELIEF .... 1E-3

4. RD’S OR GC’S DECISION REGARDING TEMPORARY RELIEF IS 

NOT APPEALABLE ..................................................................... 1E-3

5. PROCEDURE ONCE DETERMINATION IS MADE TO SEEK 

TEMPORARY RELIEF .................................................................. 1E-3
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Office of the General Counsel 

Litigation Manual xiv

ALTERNATIVES TO HEARING

F. MOTIONS FOR SUMMARY JUDGMENT...................................................... 1F-1

1. CRITERIA FOR FILING ................................................................. 1F-1

2. CONTENTS OF THE MOTION FOR SUMMARY JUDGMENT .................. 1F-4

3. CONTENTS OF BRIEF IN SUPPORT OF MOTION COVER 

FIVE MAIN POINTS ..................................................................... 1F-4

5. ALJ RULINGS ON MOTIONS FOR SUMMARY JUDGMENT ................. 1F-5

G. STIPULATIONS ............................................................................................ 1G-1

1. CRITERIA FOR TRANSFER OF CASE TO THE AUTHORITY .................. 1G-1

2. TRIAL ATTORNEY TASKS IN ENSURING THAT CASE MEETS 

CRITERIA AND IN DEVELOPING STIPULATION ................................. 1G-1

3. CRITERIA FOR STIPULATIONS TO THE ALJ .................................... 1G-3

4. PROCESSING REQUIREMENTS ..................................................... 1G-3

H. POST-COMPLAINT/PRE-HEARING SETTLEMENTS .................................. 1H-1

1. TYPES OF SETTLEMENTS ............................................................ 1H-1

2. TRIAL ATTORNEY’S ROLE IN SETTLEMENTS .................................. 1H-8

PREPARATION FOR HEARING

I. RELATIONSHIP WITH THE CHARGING PARTY REPRESENTATIVE .......... 1I-1

1. SETTLEMENT DISCUSSIONS ......................................................... 1I-1

2. PREPARATION OF WITNESSES ...................................................... 1I-2

3. OVERALL RELATIONSHIP THE SAME AS WITH ANY OTHER PARTY..... 1I-2

4. RELEASE OF AFFIDAVITS OR DOCUMENTS TO CHARGING PARTY ...... 1I-2

J. PRE-TRIAL PREPARATION OF WITNESSES.............................................. 1J-1

1. GOALS OF PRE-TRIAL PREPARATION OF WITNESS ........................ 1J-1

2. UNUSUAL OR SPECIAL CIRCUMSTANCES .................................... 1J-12

K. SUBPOENAS ................................................................................................ 1K-1

1. CIRCUMSTANCES WHEN A SUBPOENA IS REQUESTED ..................... 1K-1

2. OTHER CONSIDERATION: MILEAGE EXPENSES AND WITNESS 

FEES ........................................................................................ 1K-2

3. PROCESSING REQUIREMENTS ..................................................... 1K-2

4. PETITION TO REVOKE AND RULING ON PETITION TO REVOKE .......... 1K-5

5. FAILURE TO COMPLY WITH SUBPOENA ........................................ 1K-7

L. MOTIONS....................................................................................................... 1L-1

1. PROCESSING REQUIREMENTS ..................................................... 1L-1

2. COMMON TYPES OF MOTIONS ..................................................... 1L-3

M. TRIAL NOTEBOOK ..................................................................................... 1M-1
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Litigation Manual xv

N. PREPARING FORMAL DOCUMENTS AND PRE-HEARING DISCLOSURE1N-1

1. FORMAL PAPERS ....................................................................... 1N-1

2. PRE-HEARING DISCLOSURE--EXCHANGE OF COPIES OF 

DOCUMENTS, WITNESS LISTS, AND THEORIES OF THE CASE .......... 1N-3

O. DEPOSITIONS .............................................................................................. 1O-1

1. WHEN USE OF A DEPOSITION IS APPROPRIATE ............................. 1O-1

2. PRACTICE AND PROCEDURE ....................................................... 1O-2

P. PRE-HEARING ORDER ................................................................................ 1P-1

1. AN ALJ ISSUES A PRE-HEARING ORDER WHICH MAY CONFIRM 

OR CHANGE THE FOLLOWING MATTERS ....................................... 1P-1

2. TRIAL ATTORNEY PREPARES PROPOSED PRE-HEARING ORDER,

AS IS NECESSARY ...................................................................... 1P-1

Q. PRE-HEARING CONFERENCE ................................................................... 1Q-1

1. WHEN IS A PRE-HEARING CONFERENCE REQUESTED . . . . . . . . 1Q-1

2. WHEN IS A PRE-HEARING CONFERENCE REQUESTED . . . . . . . . .1Q-1

3. MANDATORY PARTICIPATION ...................................................... 1Q-2

4. CHECKLIST OF MATTERS TO BE DISCUSSED AT PRE-HEARING 

CONFERENCE ............................................................................ 1Q-2

 PART 2 - HEARING 

PRELIMINARY MATTERS

A. ORDER OF HEARING .................................................................................. 2A-1

STAGES OF A HEARING ............................................................................. 2A-1

B. POSTPONEMENT OR CONTINUANCE OF HEARING ................................ 2B-1

1. PRACTICE ................................................................................. 2B-1

2. PROCESS OF REQUESTING A CONTINUANCE ................................. 2B-2

3. OPPOSITION TO A REQUEST FOR A CONTINUANCE ......................... 2B-3

C. TRIAL ATTORNEY’S DECORUM ................................................................. 2C-1

1. COURTESY IS PRACTICED AT ALL TIMES AT THE HEARING .............. 2C-1

2. HEARING ROOMS ...................................................................... 2C-3

3. DRESS ..................................................................................... 2C-3

4. MEDIA COVERAGE ..................................................................... 2C-4

D. ALJ INVOLVEMENT AND DECORUM AT THE HEARING .......................... 2D-1

1. AN ALJ’S INQUIRY INTO THE FACTS ............................................ 2D-1

2. ALJ DECORUM AT HEARING ....................................................... 2D-3

E. THE ROLE OF THE CHARGING PARTY REPRESENTATIVE AT THE 
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Office of the General Counsel 

Litigation Manual xvi

HEARING ............................................................................................................ 2E-1

1. BEFORE THE HEARING ............................................................... 2E-1

2. CHARGING PARTY’S PARTICIPATION AT THE HEARING ................... 2E-2

3. TRIAL ATTORNEY’S OBJECTIONS ................................................. 2E-2

F. ETHICS .......................................................................................................... 2F-1

1. THE TRIAL ATTORNEY’S ROLE AS PUBLIC PROSECUTOR ............... 2F-1

2. EX PARTE COMMUNICATION ........................................................ 2F-3

3. OTHER EMPLOYEE RESPONSIBILITIES AND CONDUCT .................... 2F-4

G. SETTLEMENTS AT HEARING ..................................................................... 2G-1

1. POLICY ..................................................................................... 2G-1

2. PROCEDURE .............................................................................. 2G-1

H. MOTIONS, in General ................................................................................... 2H-1

1. MOTION FOR SEQUESTRATION .................................................... 2H-1

2. MOTION TO AMEND COMPLAINT ..................................................2H-6

3. MOTION TO INTRODUCE FORMAL DOCUMENTS .............................. 2H-6

4. MOTION TO INTRODUCE JOINT EXHIBITS ....................................... 2H-6

5. MOTION TO RECEIVE STIPULATION(S) .......................................... 2H-7

6. MOTION FOR SUMMARY JUDGMENT ............................................. 2H-7

7. MOTION FOR COMPLIANCE WITH SUBPOENAS ............................... 2H-7

I. INTERLOCUTORY APPEALS ......................................................................... 2I-1

1. PRACTICE AND PROCEDURE ........................................................ 2I-1

2. CASE LAW ................................................................................. 2I-2

J. ENFORCEMENT OF SUBPOENAS AND SANCTIONS ................................ 2J-1

1. ENFORCEMENT OF SUBPOENA .................................................... 2J-1

2. SANCTIONS FOR NON-COMPLIANCE WITH SUBPOENA .................... 2J-2

3. SANCTIONS FOR NON-COMPLIANCE WITH REGULATORY REQUIREMENTS 

GOVERNING PRE-HEARING AND 

HEARING MATTERS .................................................................... 2J-3

TRIAL EVIDENTIARY MATTERS

K. EVIDENCE, in General ................................................................................. 2K-1

L. ADVERSE INFERENCE ................................................................................ 2L-1

1. WHEN TO REQUEST AN ADVERSE INFERENCE BE DRAWN .............. 2L-1

2. DRAWING OF ADVERSE INFERENCE IS NOT MANDATORY: 

2L-1

3. PARTICULAR CIRCUMSTANCES .................................................... 2L-2

M. OFFICIAL NOTICE ...................................................................................... 2M-1
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Litigation Manual xvii

1. DEFINITION OF “OFFICIAL NOTICE” ............................................. 2M-1

2. PRACTICE AND PROCEDURE ....................................................... 2M-1

3. CASE LAW ................................................................................ 2M-2

N. OFFER OF PROOF ....................................................................................... 2N-1

1. FED R. EVID. 103 ...................................................................... 2N-1

2. PRACTICE AND PROCEDURE ....................................................... 2N-2

O. PURLOINED DOCUMENTS AND OTHER “IMPROPERLY” OBTAINED 

 EVIDENCE .................................................................................................. 2O-1

1. CRITERIA FOR DETERMINING WHETHER TO USE SUCH EVIDENCE2O-1

2. AUTHORITY PRECEDENT ............................................................. 2O-2

3. NLRB/COURT PRECEDENT ........................................................ 2O-3

GENERAL COUNSEL’S CASE 

P. BURDEN OF PROOF .................................................................................... 2P-1

1. GC’S BURDEN .......................................................................... 2P-1

2. DEFINITION OF PREPONDERANCE OF THE EVIDENCE ...................... 2P-2

3. RESPONDENT’S BURDEN OF PROVING ANY 

AFFIRMATIVE DEFENSES ............................................................ 2P-2

Q. OPENING STATEMENTS ............................................................................. 2Q-1

1. PURPOSE OF OPENING STATEMENT ............................................. 2Q-1

2. CHECKLIST FOR AN EFFECTIVE OPENING STATEMENT ................... 2Q-1

3. AS THE PUBLIC PROSECUTOR, TRIAL ATTORNEY ALWAYS 

MAKES OPENING STATEMENT ..................................................... 2Q-2

R. DOCUMENTS................................................................................................ 2R-1

1. STEPS INVOLVED IN INTRODUCING A DOCUMENT ........................... 2R-1

2. AUTHENTICATION....................................................................... 2R-2

3. CONTROL OF DOCUMENTS- -THE TRIAL ATTORNEY ....................... 2R-2

4. REJECTED EXHIBITS .................................................................. 2R-3

5. USE OF DOCUMENTS OR TESTIMONY AND BEST EVIDENCE RULE ... 2R-3

6. EXAMPLE OF INTRODUCTION OF DOCUMENT ................................ 2R-3

7. VOIR DIRE ................................................................................ 2R-4

8. EXAMPLE OF VOIR DIRE ............................................................. 2R-5

9. EXAMPLE OF VOIR DIRE TO EXAMINE A WITNESS AFTER A 

BREAK IN RESPONDENT’S DIRECT EXAMINATION, CONCERNING 

A POSSIBLE BREACH OF THE SEQUESTRATION ORDER ................. 2R-7

S. DIRECT EXAMINATION................................................................................ 2S-1

1. ORGANIZING THE DIRECT EXAMINATION ....................................... 2S-1

2. STRUCTURING THE QUESTIONS ................................................... 2S-1

3. WHAT TO AVOID ON DIRECT ....................................................... 2S-4
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4. TECHNIQUES TO ELICIT TESTIMONY WHEN WITNESS CANNOT 

RECALL INFORMATION SOUGHT ..................................................2S-4

T. “JENCKS’ ACT” (PRODUCTION OF WITNESSES’ STATEMENT AT 

 HEARING) ................................................................................................... 2T-1

1. BACKGROUND (CRIMINAL LAW) .................................................. 2T-1

2. ADMINISTRATIVE PROCEEDINGS--CASE LAW ................................ 2T-3

3. FLRA CASE LAW ...................................................................... 2T-4

4. PRACTICE AND PROCEDURE ....................................................... 2T-4

5. “REVERSE” JENCKS--APPLICATION TO RESPONDENT’S 

WITNESS STATEMENTS .............................................................. 2T-6

U. ADVERSE OR HOSTILE WITNESSES, RULE 611(c) .................................. 2U-1

1. RULE 611(c): WHAT IT PROVIDES .............................................. 2U-1

2. CRITERIA FOR USE OF RULE 611(C) ............................................ 2U-1

3. THE OUTLINE FOR QUESTIONING A 611(C) WITNESS ..................... 2U-2

4. HOW TO PUT A HOSTILE WITNESS ON THE STAND ......................... 2U-2

5. THE UNWILLING OR BIASED WITNESS .......................................... 2U-3

V. EXPERT TESTIMONY ................................................................................... 2V-1

1. WHEN TO CALL AN EXPERT WITNESS .......................................... 2V-1

2. PROCEDURE FOR ARRANGING FOR EXPERT WITNESS .................... 2V-1

W. REDIRECT EXAMINATION ......................................................................... 2W-1

WHEN TO CONDUCT REDIRECT EXAMINATION ............................................ 2W-1

X. VIOLATIONS NOT PLEAD IN COMPLAINT ................................................. 2X-1

1. FULL AND FAIR LITIGATION SATISFIES DUE PROCESS.................... 2X-1

2. WHAT THE TRIAL ATTORNEY DOES IF VIOLATION IS NOT 

DISCLOSED PRE-HEARING YET IS FULLY LITIGATED AT HEARING .... 2X-3

Y. DIFFICULT REPRESENTATIVES ................................................................. 2Y-1

1. DIFFICULT RESPONDENT REPRESENTATIVE .................................. 2Y-1

2. DIFFICULT CHARGING PARTY REPRESENTATIVE ............................ 2Y-2

Z. OBJECTIONS ................................................................................................ 2Z-1

1. CRITERIA FOR ADMISSION OF EVIDENCE ....................................... 2Z-1

2. RULES GOVERNING OBJECTIONS ............................................... 2Z-1

3. WHEN TO OBJECT ..................................................................... 2Z-2

4. HOW TO OBJECT ....................................................................... 2Z-2

5. FORMS OF OBJECTIONS ............................................................. 2Z-3

6. SPECIFIC OBJECTIONS TO QUESTIONS ......................................... 2Z-3

7. OBJECTIONS TO ANSWERS ....................................................... 2Z-12

8. WHEN TO MAKE OBJECTIONS TO TESTIMONY ............................. 2Z-12

9. OBJECTIONS TO EXHIBITS ......................................................... 2Z-12

10. OBJECTIONS TO OPENING STATEMENTS..................................... 2Z-13
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11. OBJECTIONS TO CLOSING ARGUMENTS ..................................... 2Z-14

12. RESPONDING TO RESPONDENT’S OBJECTIONS ........................... 2Z-15

AA. WITNESS USING NOTES ........................................................................ 2AA-1

BB. CROSS-EXAMINATION .......................................................................... 2BB-1

1. WHEN TO CROSS-EXAMINE ..................................................... 2BB-1

2. TWO PURPOSES OF CROSS-EXAMINATION ................................ 2BB-3

3. ELEMENTS OF CROSS-EXAMINATION ........................................ 2BB-3

4. RULES OF CONDUCTING CROSS-EXAMINATION .......................... 2BB-4

5. TECHNIQUES OF CROSS-EXAMINATION ..................................... 2BB-6

6. METHODS TO TEST CREDIBILITY .............................................. 2BB-7

7. CHECKLIST FOR CROSS-EXAMINATION ..................................... 2BB-7

CC. IMPEACHMENT ...................................................................................... 2CC-1

1. PRINCIPLES OF IMPEACHMENT ................................................. 2CC-1

2. PRACTICAL EXAMPLES ............................................................ 2CC-2

3. DECIDING WHETHER TO ATTACK ON CROSS .............................. 2CC-8

DD. GENERAL COUNSEL’S REBUTTAL ...................................................... 2DD-1

FACTORS CONSIDERED IN DETERMINING WHETHER TO 

PRESENT REBUTTAL ............................................................................. 2DD-1

EE. LEAVING THE RECORD OPEN FOR ADDITIONAL EVIDENCE ............ 2EE-1

1. CRITERIA FOR REQUESTING TO LEAVE RECORD OPEN ................ 2EE-1

2. WHAT TRIAL ATTORNEY MUST SHOW IN SUPPORT 

OF THE MOTION ....................................................................... 2EE-2

3. PRESERVE RIGHT TO CROSS-EXAMINE WITNESS ........................ 2EE-2

FF. REOPENING OF THE GENERAL COUNSEL’S CASE ............................ 2FF-1

1. CASE LAW: AFTER THE RECORD HAS BEEN CLOSED .................. 2FF-1

2. WHEN TO MOVE TO REOPEN RECORD FOR RECEIPT OF 

ADDITIONAL EVIDENCE ............................................................ 2FF-2

GG. CLOSING ARGUMENT ........................................................................... 2GG-1

1. BENEFITS DERIVED FROM PRESENTATION 

OF CLOSING ARGUMENT.......................................................... 2GG-1

2. ORAL ARGUMENT IN LIEU OF FILING A BRIEF ............................... 2GG-2

3. OUTLINE OF ORAL ARGUMENT IN LIEU OF BRIEF .......................... 2GG-2

4. GREATER CONSIDERATION IS GIVEN TO DOING AN ORAL ARGUMENT IN 

ADDITION TO FILING A BRIEF WHEN IT IS 

NECESSARY .......................................................................... 2GG-3

5. ORAL ARGUMENT IN EACH CASE DECIDED BY 

BENCH DECISION ................................................................... 2GG-3

HH. BENCH DECISION AND POST-HEARING BRIEF 

 INQUIRY/SUGGESTIONS ....................................................................... 2HH-1

1. BRIEF INQUIRY/SUGGESTIONS ................................................. 2HH-1
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2. BENCH DECISION .................................................................... 2HH-1

 PART 3 - POST-HEARING 

A. POST-HEARING SETTLEMENTS ................................................................ 3A-1

1. POLICY ..................................................................................... 3A-1

2. PROCEDURE .............................................................................. 3A-1

B. BRIEFS .......................................................................................................... 3B-1

1. QUALITY STANDARD CRITERIA APPLICABLE TO ALL BRIEFS ........... 3B-1

2. EXPLANATION OF CRITERIA ......................................................... 3B-2

3. FORMAT FOR BRIEFS FILED EITHER BEFORE THE AUTHORITY 

OR AN ALJ ............................................................................... 3B-4

4. FILING AND SERVICE REQUIREMENTS .......................................... 3B-5

C. ALJ ANALYSIS ............................................................................................. 3C-1

1. AN ALJ ANALYSIS IS ................................................................. 3C-1

2. INFORMATION CONTAINED IN AN ALJ ANALYSIS............................ 3C-1

D. POST-HEARING MOTIONS .......................................................................... 3D-1

1. BEFORE AN ALJD ..................................................................... 3D-1

2. EITHER BEFORE AN ALJD OR BEFORE AN AUTHORITY DECISION ... 3D-2

3. AFTER AN ALJD BUT BEFORE AN AUTHORITY DECISION ............... 3D-2

4. AFTER AN AUTHORITY DECISION ................................................. 3D-3

5. PROCESSING REQUIREMENTS ..................................................... 3D-4

E. INJUNCTIONS AFTER ALJ ISSUES DECISION .......................................... 3E-1

1. ALJ RECOMMENDS THAT COMPLAINT BE DISMISSED AFTER 

APPROPRIATE TEMPORARY RELIEF OBTAINED.............................. 3E-1

2. SETTLEMENT OF INJUNCTION MATTER AND THE ULP AFTER 

ISSUANCE OF ALJD .................................................................. 3E-1

3. INJUNCTIONS AFTER ISSUANCE OF AN AUTHORITY DECISION 

AND ORDER .............................................................................. 3E-1

F. EXCEPTIONS ................................................................................................ 3F-1

1. BASES FOR FILING EXCEPTIONS .................................................. 3F-1

2. FORMAT AND CONTENT OF EXCEPTIONS ...................................... 3F-2

3. WAIVER AND THE “SUFFICIENT PARTICULARITY STANDARD”.......... 3F-3

4. CRITERIA FOR FILING CROSS-EXCEPTIONS AND OPPOSITION .......... 3F-5

5. EXTENSIONS OF TIME ................................................................. 3F-7

G. COMPLIANCE WITH AUTHORITY DECISIONS .......................................... 3G-1

RO RESPONSIBILITIES WHEN REMEDIAL ORDER ISSUES ............................. 3G-1

H. ATTORNEY FEES ......................................................................................... 3H-1
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BACK PAY ACT 

1. RDS HAVE DISCRETION TO AWARD ATTORNEY FEES IN 

SETTLING ULPS PRIOR AND SUBSEQUENT TO ISSUANCE OF COMPLAINT 

BUT BEFORE LITIGATION ............................................................ 3H-2

2. SUMMARY OF ANALYTICAL FRAMEWORK FOR MAKING 

ATTORNEY FEE DETERMINATIONS WITH RESPECT TO 

SETTLEMENTS ........................................................................... 3H-2

3. ATTORNEY FEES REQUESTS BEFORE AN ALJ .............................. 3H-3

4. WHEN A CHARGING PARTY REQUESTS ATTORNEY FEES 

FROM THE AUTHORITY IN CASE WHERE AUTHORITY HAS FOUND

ULP ........................................................................................ 3H-3

EAJA 

1. APPLICABLE PRINCIPLES UNDER THE (EAJA) ............................. 3H-4

2. REGIONS FILE OPPOSITION TO ATTORNEY FEES REQUESTED 

UNDER EAJA ........................................................................... 3H-4

INDEX ..................................................................................................................... I-1
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LIST OF EXAMPLES OR MODELS OF DOCUMENTS AND ORAL 

PRESENTATIONS ................................................................................................ E-1

TABLE OF AUTHORITIES .............................................................................. TOA-1

ATTACHMENTS ............................................................... LIST OF ATTACHMENTS

REFERENCES 

THE STATUTE

BACK PAY ACT

THE REGULATIONS
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Office of the General Counsel 

Litigation Manual

 PART 1 

 PRE-HEARING

(NOTICE OF HEARING TO 

TO OPENING OF HEARING) 
Initial Matters 

Issuance of ULP Complaint 

Notice of Hearing Time, Date and Place

Office of the General Counsel 

Litigation Manual 1−1

A. ISSUANCE OF ULP COMPLAINT, 

NOTICE OF HEARING TIME, DATE AND PLACE

OVERVIEW:

Absent settlement, an RD issues a complaint in cases where it is 

found that the charge has merit and advises the OGC HQ of such 

issuance via an internal transmittal memorandum. See

§ 2423.10(a)(4). Section 2423.20(a)(5) provides that every 

complaint shall include notice of the date, time and place (city) fixed 

for the hearing.

OBJECTIVE:

To provide guidance concerning the drafting, processing, and 

service of a complaint, the internal memorandum transmitting the 

complaint to the OGC HQ, and an overview of matters concerning 

the notice of hearing such as scheduling of ULP hearings, including 

calendar calls and arranging for a court reporter.

1. DRAFTING THE COMPLAINT: 

a. Role of the Agent: 

· The RD assigns an Agent to draft the complaint; and 

· When the complaint issues, the case is assigned to an Attorney 

who 

prepares 

the case 

for trial, 

absent 

settlement.

b. Conforming the charge with the complaint: 

There should be no significant differences between the 

allegations in the charge and the allegations set forth in 
Initial Matters 

Issuance of ULP Complaint 

Notice of Hearing Time, Date and Place

Office of the General Counsel 

Litigation Manual 1−2

the complaint. The complaint should conform to the

allegations in the last amended charge that have not 

been disposed of by other means. 

2. ISSUANCE OF COMPLAINT: 

The Agent follows the OGC Pleading Manual (ATTACHMENT 1A1) in 

drafting the complaint. 

a. Regulatory requirements:

Pursuant to § 2423.20(a), the complaint sets forth:

· The notice of the charge; 

· The basis for jurisdiction; 

· The facts alleged to constitute a ULP; 

(a) The facts are stated clearly and concisely; (b) describe the acts which 

are alleged to constitute ULPs, including, where known, approximate 

dates and places of such acts and (c) the names of the Respondent's 

agents or other representatives allegedly involved in the commission of 

the ULP(s). 

· The statutory and regulatory sections involved; 

· The notice of the date, time, and place that a hearing will take 

place before an ALJ; and 

· A brief statement explaining the nature of the hearing. 

b. Other contents and form of complaint:

· The allegations of the complaint are set forth in numbered 

paragraphs;

· Normally, the first paragraph states the facts relating to the filing 

and service of the original charge and of each amended charge; 

· The succeeding paragraphs normally identify the Respondent's 

agents or representatives alleged to be involved, followed by a 

chronology of events, or other factual data, and a description of 

the specific acts alleged to constitute the ULP/s; 
Initial Matters 

Issuance of ULP Complaint 

Notice of Hearing Time, Date and Place

Office of the General Counsel 

Litigation Manual 1−3

· The allegations are sufficiently detailed in order to enable the 

parties to understand the nature of the alleged violation; and 

· The last numbered paragraphs allege that the acts and conduct 

specified all constitute ULPs within the meaning of § 7116 of the 

Statute (repeating all subsections alleged to have been violated 

in the preceding paragraphs). 

· The formatting requirements prescribed are followed (arial 

font; 12 point; 1.5 spaces between lines in each paragraph; 

2.0 spaces between paragraphs; 8.5 by 11 inch paper left 

justification). 

c. Service of the complaint: 

The complaint and notice of hearing are served by 

certified mail on all parties and their designated 

representatives as soon as possible--service by e-mail 

or fax is not permitted. The following are also served: 

· The Chief ALJ; 

· The OGC HQ; 

· The head/s of the labor organization/s involved; and 

· In CA cases only: 

Director 

Office of Labor and Employee Relations 

1900 E Street, N.W. 

Washington, D.C. 20415-0001 

3. OALJ ISSUANCE OF ORDER UPON RECEIPT OF COMPLAINT: 

The OALJ issues an Order and Notice of Date and Time for Pre-hearing 

Conference Call upon the receipt of a complaint. The OALJ also issues a 

Notice of Settlement Judge Program and issues subpoenas upon request. 

Requests for subpoenas and other pre-hearing motions are separate 

documents with their own captions but may be covered by a single service 

sheet. See LM, Part 1, Chapters K, N and Q concerning Subpoenas, 
Initial Matters 

Issuance of ULP Complaint 

Notice of Hearing Time, Date and Place

Office of the General Counsel 

Litigation Manual 1−4

Preparing Formal Documents and Pre-hearing Disclosure for discussion of 

these matters. 

4. THE TRANSMITTAL MEMORANDUM:

Upon the issuance of a complaint, the RD sends a copy of the complaint 

to the OGC Headquarters, along with an internal transmittal memorandum 

which addresses the following: 

Whether the case had been discussed with anyone at OGC Headquarters; 

· If negotiability is an issue, include a cite to the lead case or an 

appropriate arrangements analysis if there is no lead case; 

· The proposed remedy and why, if necessary. 

 In a unilateral change case, if the Region is not asking for a 

status quo ante remedy, state the reasons. If the Region is 

proposing a monetary remedy or a nontraditional remedy, state 

why. See F.E. Warren Air Force Base, 52 FLRA No. 17, 

52 FLRA 149, 160-62 (1996) for a list of the factors considered in 

determining a remedial order and LM, Part 1, Chapter D, 

concerning Remedy for a more in-depth discussion of remedies, 

in general. 

· If the facts have an interesting twist, explain it; 

· If the case is not a “routine type” of violation, explain why; 

· If there is a defense that the Respondent has already raised or 

that the Region is aware of, state it, and explain why it was 

rejected (e.g., “covered by”); 

· If there is a special trial strategy (hostile witness, subpoena, etc.), 

explain; 

· If there was an issue that was discussed at length at an Agenda, 

provide these details in the memo; 

· If there is controlling OGC Advice or OGC Guidance, provide 

these citation/s; and 

· Cite any particular case that supports the complaint, excluding

acknowledged precedent. 
Initial Matters 

Issuance of ULP Complaint 

Notice of Hearing Time, Date and Place

Office of the General Counsel 

Litigation Manual 1−5

 A transmittal memorandum is not subject to disclosure under the 

Freedom of Information Act as it is exempted from disclosure 

under Exemption 5. See 5 U.S.C. § 552(b)(5). A transmittal 

memorandum comes within the deliberative process privilege 

which has the purpose of “prevent[ing] injury to the quality of 

agency decisions.” NLRB v. Sears, Roebuck, & Co., 421 U.S. 

132, 151 (1975).

5. SETTING THE HEARING TIME, DATE AND PLACE:

Hearings are set on a date which is within 60 days of the date that the 

complaint is issued.

a. Ordinarily, hearings are:

i. Set by the ALJ and noticed in the 

complaint; if not, a separate notice of 

hearing is sent to the ALJ and parties; 

ii. Set in the city where the alleged violation 

occurred or in the closest major city to that 

location; 

iii. Not set sooner than 25 days after 

issuance of complaint to provide time for 

receipt of Respondent’s answer in 

accordance with §§ 2423.20(b) and 

2429.22; and 

iv. Set to begin at 9:00 a.m. unless a later 

time is required to accommodate the ALJ 

or parties. 

 The notice of hearing need not indicate the exact location or site 

within the city where the hearing is scheduled to take place. 
Initial Matters 

Issuance of ULP Complaint 

Notice of Hearing Time, Date and Place

Office of the General Counsel 

Litigation Manual 1−6

Upon approval by the ALJ, the RD announces the location in a 

notice that is issued before the hearing or at the pre-hearing 

conference. See ATTACHMENT 1A2 for an example of a Notice. 

b. Changes in hearing location, date and time: 

i. An ALJ may, in his/her discretion or upon motion of a 

party, change the date, time, or place of the hearing. 

ii. To effect changes in dates or city where hearing is to 

take place, a party files a motion with Chief ALJ. (See 

Part 1, Chapter L on Motions for applicable criteria for 

filing this motion). 

c. Calendar call: 

Calendar call is a method of scheduling two or more cases for a hearing 

on the same date and time, at the same location, and in the same city. 

The ALJ calls each case at a pre-hearing conference at which time the 

parties discuss and enter into factual stipulations and settlements. At the 

end of the pre-hearing conference, the ALJ sets the location, order and 

dates for hearing the remaining cases. Hearings commence and continue 

in order until all cases are heard. 

6. COURT REPORTER: 

Section 2423.30(f) provides that an official reporter shall make the only 

official transcript of a hearing. The Trial Attorney ensures that the 

following take place: 

a. After complaint issues, Regional staff calls reporting service to 

arrange for court reporting coverage at hearing. 

b. Send confirmation letter by fax. 

c. In the event of settlement before hearing, notify 

reporting service at least 24 hours before 

hearing, if possible, otherwise a late cancellation

fee is charged. 
Initial Matters 

Issuance of ULP Complaint 

Notice of Hearing Time, Date and Place

Office of the General Counsel 

Litigation Manual 1−7

7. ANSWER TO COMPLAINT:

Pursuant to § 2423.20(b), Respondent has 20 days to file an answer to a 

complaint. 

A Respondent makes an admission when the answer does not deny any 

allegation in the complaint. 

U.S. Department of the Air Force, Air Force Materiel Command, WrightPatterson Air Force Base, Ohio, 55 FLRA No. 159, 55 FLRA 968 (1999) 

(existence of past practice found where Respondent’s answer makes 

clear that existence of past practice of smoking was not in dispute – 

pursuant to Fed. R. Civ. P. 8(d), “[a]verments in a pleading . . . are 

admitted when not denied in the responsive pleading” . . . “An admission 

that is not withdrawn or amended cannot be rebutted by contrary 

testimony or ignored by the district court simply because it finds the 

evidence presented by the party against whom the admission operates 

more credible” . . . “A judge may not simply ignore an admission and find 

to the contrary, without explaining his disregard of the pleadings). 

 Part 1, Chapter D concerning Remedy; 

Part 1, Chapter K concerning Subpoenas; 

Part 1, Chapter L concerning Motions;

Part 1, Chapter N concerning Preparing Formal Documents; and 

Part 1, Chapter Q concerning Pre-hearing Disclosure.
Initial Matters 

Issuance of ULP Complaint 

Notice of Hearing Time, Date and Place

Office of the General Counsel 

Litigation Manual 1−8

 RESERVED 
Initial Matters 

Consolidation Orders

Office of the General Counsel 

Litigation Manual 1−1

B. CONSOLIDATION ORDER

OVERVIEW:

Under § 2429.2, whenever it appears necessary to effectuate the 

purposes of the Statute or to avoid unnecessary costs or delay, the 

RD may consolidate cases within the Region for hearing, or transfer 

cases to another region for consolidation with pending cases. 

OBJECTIVE:

To provide guidance on the criteria for, and processing of, 

consolidation of cases.

2. CRITERIA FOR CONSOLIDATION:

The RD may consolidate cases where there are: 

a. Separate ULP charges involving the same 

Charged Party in each case. 

For example, different employees have filed separate 

charges against the same agency or labor organization 

based on the same event or a related event; 

b. Separate ULP charges involving different 

Charged Parties but based on the same set of 

circumstances. 

For example, an employee filed separate charges 

against an activity and a labor organization alleging 

complicity in an agreement discriminating against 

employees who are not members of the union. 

c. Objections to an election and a ULP charge(s) 

that involve common issues. 

3. PROCESSING:
Initial Matters 

Consolidation Orders

Office of the General Counsel 

Litigation Manual 1−2

a. Issuance of complaint:

Cases are consolidated simultaneously with the issuance of complaint by 

issuing an Order Consolidating Cases, Complaint and Notice of Hearing. 

(See ATTACHMENT 1B). This format may also be used when 

consolidating a new complaint with a previously issued complaint. If 

separate complaints have issued, the cases can be consolidated by an 

Order Consolidating Cases. (See ATTACHMENT 1B). 

 If consolidating a new case with a previously issued complaint, it 

is not necessary to issue a new consolidated complaint that 

includes all of the allegations of the first complaint. In this 

situation, an Order Consolidating Cases, Complaint and Notice of 

Hearing issues. The first paragraph of the Order states that the 

new case is consolidated for hearing with the previously issued 

complaint and the allegations of the first complaint need not be 

repeated (see ATTACHMENT 1B). However, be sure that the 

caption of the second complaint includes the name and case 

number of the first complaint and that thereafter, all documents 

issued include the consolidated case caption. 

b. After complaint has issued: 

Upon motion of a party pursuant to then-§ 2423.19(k), now § 2423.24(a), 

the ALJ has discretion to determine if consolidation of cases is warranted. 

 U.S. Small Business Administration, Washington, D.C., 54 FLRA No. 83, 

54 FLRA 837, 845 (1998) (SBA). 

 
Initial Matters 

Analysis of Case File 

Office of the General Counsel 

Litigation Manual 1−1

C. ANALYSIS OF THE CASE FILE

OVERVIEW:

 

After issuance of the complaint, the Trial Attorney’s first step in 

preparing for litigation is to conduct a complete analysis of the case 

file. 

OBJECTIVE: 

To provide guidelines for analyzing the case file in order to: 

 

· Familiarize oneself with the legal theory and evidence in the 

file; 

· Determine Respondent’s defenses; 

· Determine whether an amendment to the charge and/or 

complaint is necessary; 

· Determine whether any additional investigation or legal 

research needs to be undertaken; 

· Determine what witnesses or documents need to be 

subpoenaed; and 

· Consider whether any alternatives to a trial may be 

appropriate, e.g., settlement, stipulation, summary

judgment. 

 (1) It should have been determined during the investigation of the 

charge, i.e., before the complaint issued, whether an amendment 

to the charge was necessary. Nevertheless, the Trial Attorney 

reviews the case file, which includes the complaint, to determine 

the sufficiency of the charge. 

 (2) If a trial team is assigned to the litigation, the team works out 

trial assignments. 

 (3) During the initial review of the case file, the Trial Attorney is 

aware of the need not only to determine the sufficiency of the 

evidence in the file as to each and every element of the alleged 
Initial Matters 

Analysis of Case File 

Office of the General Counsel 

Litigation Manual 1−2

violation(s) but of the need to identify which specific witness or 

witnesses will present through their testimony the specific 

evidence to establish each and every element. Consequently, 

the Trial Attorney not only considers whether additional 

investigation or legal research must be conducted, but whether 

additional witnesses must be contacted.

1. CASE FILE ANALYSIS:

a. Review the Complaint, including Transmittal 

Memo, and the Charge: 

· Is the underlying charge timely? 

· What are the allegations? 

· What are the elements of the violation? 

· Does the charge properly relate to the 

complaint? 

· Is the complaint legally sufficient? 

· Is the date and time of the hearing 

correct? 

· Has a proper location for the hearing been 

reserved? 

· Is it still available? 

· Has the reporting service been contacted? 

b. Review of Charge, Amended Charge, Complaint, 

Amended Complaint 
Initial Matters 

Analysis of Case File 

Office of the General Counsel 

Litigation Manual 1−3

i. Review of Charge and Amended Charge

(a) Charge 

Pursuant to § 2423.9, the Charging Party may 

amend the charge prior to issuance of complaint. 

 There is no provision for amendment of the 

charge after the complaint issues. 

However, once the complaint issues, in reviewing 

the case file, the Trial Attorney ensures that the 

charge, or amended charge, conforms with the 

allegations of the complaint, and that the 

allegations of the complaint conform with the 

regional determination. 

 The charge and complaint need not be identical. The complaint 

need only bear a relationship to the charge and closely relate to 

the events cited in the charge. A charge is sufficient if it informs 

the alleged violator of the general nature of the violation charged; 

a complaint will be dismissed if defects in a charge prejudice a 

Respondent. U.S. Department of Justice, Office of Justice 

Programs, 50 FLRA No. 67, 50 FLRA 472, 476-77 (1995) (charge 

put Respondent on notice that it had allegedly violated the 

Statute by failing to provide names of employees receiving 

awards and outstanding appraisals, even though at time charge 

was filed, Respondent had not yet denied the union’s request); 

U.S. Department of Justice, Bureau of Prisons, Allenwood 

Federal Prisons Camp, Montgomery, Pennsylvania, 40 FLRA No. 

42, 40 FLRA 449, 455 (1991) (citations omitted) (Respondent 

understood scope of the allegations concerning its refusal to 

furnish crediting plan and addressed those allegations in its 

submission before the Authority).

(b) Amended Charge--when to obtain: 

After a complaint has issued, the Trial Attorney 

obtains an amended charge if: 
Initial Matters 

Analysis of Case File 

Office of the General Counsel 

Litigation Manual 1−4

· The charge does not cover the allegations 

in the complaint; there is a significant 

discrepancy between the complaint and 

the charge; or the amended charge could 

result in the Respondent raising valid due 

process or notice objections; and 

· The amended charge may be timely 

made, i.e., within six months after the 

events complained of. 

(c) If amended charge is necessary: 

· The complaint is withdrawn; 

· The Charging Party files an amended 

charge; and 

· The RD reissues the complaint. 

 Again, be careful about obtaining an amended charge alleging 

violative conduct occurring more than six months prior to the date 

of the amended charge. If the amended charge does not also 

include conduct encompassed by the original charge a complaint 

based on allegations in the amended charge may be found 

untimely. Amended charges that are closely related to events or 

matters complained of in the charge and are based on events 

occurring within the six-month period preceding the charge are 

not barred by § 7118(a)(4)(A) of the Statute. United States 

Department of Veterans Affairs, Washington, D.C., Veterans 

Administration Medical Center, Amarillo, Texas, 42 FLRA No. 27, 

42 FLRA 333, 340 (1991), rev’d on other grounds sub nom. 

United States Department of Veterans Affairs Medical Center, 

Amarillo, Texas v. FLRA, 1 F.3d 19 (D.C. Cir. 1993). 

Prior to reissuance of the complaint, Respondent is given an opportunity 

to respond to the amended charge.
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ii. Review of Complaint: 

Pursuant to § 2423.20(c), the RD may amend a 

complaint at any time before the answer is filed. The 

Trial Attorney reviews the complaint to determine the 

following: 

· Are the right parties named, including 

whether the correct level of the agency or 

union is named? 

· Are the allegations of the complaint found 

in the charge? 

· Are there typographical errors or 

misspellings? 

· Are the allegations specific to put the 

Respondent on notice of the alleged 

violations? 

· Does the complaint contain all allegations 

the RD found to be violations? 

· Are there additional violations not alleged 

in the complaint? 

iii. Amended Complaint:

(a) Answer not filed:

(1) Issue an amendment to the 

complaint 

when: 
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changes are not complicated or 

extensive (e.g., correction to a 

numerical allegation, a minor 

change in a date, or a misspelling) 

and the Respondent has not yet 

filed an answer. The RD issues an 

amendment to the complaint

setting forth only the desired 

changes. An amendment to the 

complaint replaces only those 

portions of the complaint identified 

in the amendment. Answer period 

begins to run anew (see § 

2423.20(c) and subsection c.iii. 

below). 

(2) Issue an amended complaint 

when:

 

the changes are complicated, 

extensive, or raise additional 

allegations, and the Respondent 

has not yet filed an answer. The 

RD issues an amended 

complaint, which restates the 

entire complaint including the 

desired changes. An amended 

complaint, like an amended charge, 

supersedes the original complaint. 

Answer period begins to run anew 

(see § 2423.20(c) and subsection 

c.iii. below). 

(b) Answer has been filed:
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Whether or not the changes are 

complicated, the Trial Attorney files 

a Motion to Amend the complaint 

with the ALJ which sets forth the 

details of the proposed 

amendment. 

See example of Motion to Amend 

Complaint at end of Chapter. 

 If review of the complaint discloses a discrepancy between the 

regional decision and/or theory of the case and the allegations of 

the complaint, the RD amends the complaint, if an answer has 

not yet been filed, or the Trial Attorney files a Motion to Amend 

Complaint with the ALJ, if an answer has been filed. (It is not 

necessary, nor advisable, to file a notice of intent to file a motion 

to amend complaint at the hearing.) In either instance, a 

Respondent may not claim lack of notice or violation of due 

process because there has been a disclosure of the "matters of 

fact and law at issue." See 5 U.S.C. § 554(b)(3); U.S. 

Department of Labor, Washington, D.C., 51 FLRA No. 41, 

51 FLRA 462, 467 (1995) ("[d]ue process considerations are 

basic to American jurisprudence. . ."). What constitutes 

adequate notice will depend on the circumstances of each case. 

In every instance, however, this notice must afford the 

Respondent “a meaningful opportunity to litigate the underlying 

issue.” Road Sprinkler Fitters Local Union No. 669 v. NLRB, 

778 F.2d 8, 16 (D.C. Cir. 1985). A party’s due process concerns 

are more persuasive if the opposing party has not complied with 

the pre-hearing disclosure requirements. 

Case Cites--Lack of Notice

American Federation of Government Employees, Local 2501, Memphis, 

Tennessee, 51 FLRA No. 139, 51 FLRA 1657, 1660 (1996) (Authority 

found complaint did not allege the specific statements that allegedly 

violated the Statute, and there was no evidence that union was on notice 

that statements were encompassed by complaint, even though union did 

not contend on exception that it was prejudiced at hearing by the absence 

of the allegations in the complaint); U.S. Department of Labor, 

Washington, D.C., 51 FLRA No. 41, 51 FLRA 462, 467-68 (1995) (where

sole basis of complaint was alleged violation of Statute in failing to provide 
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unsanitized data, violation may not be found for failing to provide sanitized 

data); see also U.S. Department of the Air Force, 56th Support Group, 

MacDill Air Force Base, Florida, 51 FLRA No. 93, 51 FLRA 1144, 1157 

(1996) (to the same effect). 

Case Cite--Adequate Notice Given

F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17, 

52 FLRA 149, 150-51 (1996) (complaint was sufficient to put Respondent 

on notice of alleged liability for all formal discussions related to subject of 

RIF that manager had in his office during the month). 

c. Review of Answer to Complaint: 

· What was denied? 

· What was admitted (actual or 

constructive)? 

· What are the affirmative defenses, if any? 

· Do any procedural or substantive issues 

raised by the Answer need to be 

addressed? 

· Does Respondent raise any motions as 

part of the Answer? 

i. Answer filed in 20 days 

Section 2423.20(b) provides that "[w]ithin 20 days after 

the date of service of the complaint, but in any event, 

prior to the beginning of the hearing, the Respondent 

shall file and serve . . . an answer with the Office of 

Administrative Law Judges.” 
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ii. Requirements of Answer 

Any Answer must admit, deny, explain, or deny 

knowledge as to each of the allegations in each 

paragraph of the complaint, or Respondent may admit

to all allegations of the complaint. Failure to plead 

specifically to, or explain any allegation, shall constitute 

an admission of such allegation. If Respondent does 

not file an Answer, the Authority will find that the 

Respondent has admitted each allegation. § 

2423.20(b). 

iii. Answer to Amendment to Complaint or 

Amended Complaint 

Pursuant to § 2423.20(c), Respondent has an 

opportunity to file an Answer or amended Answer to an 

amendment to a complaint or an amended complaint. 

iv. No Timely Answer Filed

Be sure to determine if an Answer to the complaint or 

amended complaint has been filed. In appropriate 

cases, summary judgment may be sought when 

Respondent has not timely answered. See Part 1, 

Chapter F concerning Motions for Summary Judgment. 

d. Review of Evidence:

· Read affidavits, statements, position 

papers, memoranda, documents, 

investigative report and agenda minute; 

· Review prior settlement attempts; 
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· Discuss case with investigator, if 

necessary; and 

· Verify potential witnesses’s addresses and 

telephone numbers. 

2. TRIAL ATTORNEY’S CASE FILE ANALYSIS TASK LIST:

Upon completion of the case file analysis, the Trial Attorney has 

completed the following tasks:

· Determined if an amendment of the complaint is necessary; 

· Determined what the Respondent’s defense(s), if any, will be; 

· Determined if additional investigation (including the need for 

additional witnesses) or legal research needs to be undertaken in 

order to address issues raised in the GC’s case-in-chief or 

Respondent’s defenses; 

· Determined who will be witnesses and what documents need to 

be entered into evidence (including what witnesses and 

documents must be subpoenaed); and 

· Decided whether the case is a candidate for settlement, motion 

for summary judgment or stipulation. If stipulation is a possibility, 

begin now. 

3. SETTLEMENT EFFORTS AND POTENTIAL FOR SETTLEMENT:

After completing the case file analysis, serious consideration is given to 

settlement possibilities. It is the GC’s policy to continue to actively 

pursue settlement after the complaint has issued. In essence, postcomplaint settlement efforts are an extension of, and consistent with, the 

pre-complaint settlement policy and practice. See Part 1, Chapter H 

below concerning Post Complaint/Pre-hearing Settlements and 

ATTACHMENT 1H. 

Because settlement efforts are attempts to bring the parties together on a 

common ground, and because the GC does not represent the Charging 

Party, it is entirely appropriate for the Trial Attorney to assume a facilitatormediator role when engaging in settlement efforts. 

 

a. Initial settlement efforts:
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The Trial Attorney contacts the parties by telephone to explore the parties’ 

interest as well as settlement options. The Trial Attorney is prepared to 

set forth a bilateral settlement agreement, including one without a posting, 

if appropriate. In addition, it is appropriate to explore other possible 

settlements, including those suggested by the parties. 

b. Continued settlement efforts:

If initial settlement efforts are unsuccessful, conference calls with the 

parties may encourage settlement. 

c. On-site settlement meeting:

This option may be appropriate especially if the parties are willing and 

there is an expectation of success. The Trial Attorney considers whether 

settlement possibilities would be enhanced in a meeting with all parties or 

in separate meetings. 

d. Conference calls with the OALJ:

This option may be productive. However, prior to seeking the assistance 

of the OALJ, the Trial Attorney advises the RA. The OALJ has its own 

formal settlement program. The Trial Attorney makes a motion for the 

Settlement Judge, if appropriate. In addition, the ALJs continue to engage 

in informal trilateral settlement conference calls.

Settlement efforts may also be made during the pre-hearing conference 

call. See Part 1, Chapter Q concerning conference calls. 

 Part 1, Chapter F concerning Motions for Summary Judgment; 

Part 1, Chapter H concerning Post-Complaint/Pre-Hearing 

Settlements; 

Part 1, Chapter I concerning Relationship with Charging Party ; 

Part 1, Chapter L concerning Motions; 

Part 1, Chapter Q concerning Pre-hearing Conferences; and 

Part 2, Chapter X concerning Violations not Plead in the Complaint. 
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UNITED STATES OF AMERICA

BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY 

OFFICE OF ADMINISTRATIVE LAW JUDGES

Case No. SF-CA-70586 

MOTION TO AMEND 

COMPLAINT

On May 3, 1997, a Complaint and Notice of Hearing issued in this matter. Counsel 

for the General Counsel moves to amend the complaint to include the following 

new paragraph: 

7(a). On or about March 6, 1997, in the Respondent’s 

cafeteria, Supervisor, John James told a group of 

bargaining unit employees that too many grievances 

were being filed and if the employees knew what was

good for them they would start behaving like adults

instead of children. 

Respectfully submitted, 

 

Counsel for the General Counsel 

VA Eastern Idaho 

Healthcare System 

Boise, Idaho 

Respondent 

 -ANDService Employees International Union, 

AFL-CIO, Local 999-M 

Charging Party 
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June 5, 1997 
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 RESERVED 

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D. REMEDY

OVERVIEW:

The investigating Agent, throughout the processing of a ULP 

charge, and the Trial Attorney, during the litigation of a complaint, 

determine what evidence will sustain the GC’s burden of proof for 

establishing a remedy for a violation of the Statute. Sections 

7105(g)(3) and 7118(a)(7) of the Statute, as implemented by 

§ 2423.41(c), grant broad remedial powers to the FLRA. See 

Federal Bureau of Prisons, Washington, D.C., 55 FLRA No. 202, 

55 FLRA 1250, 1258-59 (1996) for a discussion of the Authority’s 

broad remedial powers (citing NTEU v. FLRA, 910 F.2d 964 (D.C. 

Cir. 1990) (en banc).

OBJECTIVE:

To set forth the OGC’s policy on remedies for ULPs, and to provide 

guidance on the types of remedies and the elements of proof that 

are necessary to sustain those remedies. 

 See OGC Guidance on Seeking Remedies for Unfair Labor 

Practices under the Federal Service Labor-Management 

Relations Statute (ATTACHMENT 1D) for comprehensive

guidance on the types of remedies and the elements of proof that 

are necessary to sustain those remedies for particular types of 

violations.

1. STATUTORY AUTHORITY:

a. Section 7105(g)(3):

"(g) In order to carry out its functions under 

this chapter, the Authority. . . 

(3) may require an agency or a labor 

organization to cease and desist from 

violations of this chapter and require it to 
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take any remedial action it considers 

appropriate to carry out the policies of this 

chapter." 

b. Section 7118(a)(7):

“Under this section, upon a determination that an 

agency or labor organization engaged in an unfair labor 

practice, the hearing official shall state such findings in 

writing and shall serve upon the agency or labor 

organization an order -- 

(A) to cease and desist from any 

such unfair labor practice in which 

the agency or labor organization is 

engaged; 

(B) requiring the parties to 

renegotiate a collective bargaining 

agreement in accordance with the 

order of the Authority and requiring 

that the agreement, as amended, 

be given retroactive effect; 

(C) requiring reinstatement of an 

employee with backpay in 

accordance with § 5596 of this title; 

or 

(D) including any combination of 

the actions described in 

subparagraphs (A) through (C) of 

this paragraph or such other action 
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as will carry out the purpose of this 

chapter. 

If any such order requires reinstatement of any 

employee with backpay, backpay may be required of 

the agency (as provided in § 5596 of this title) or of the 

labor organization, as the case may be, which is found 

to have engaged in the unfair labor practice involved." 

2. OGC REMEDY POLICY: 

The OGC seeks traditional and nontraditional remedies that:

· Recreate the conditions and relationships that would have been 

had there been no ULP; 

· Restore, to the extent possible, the status quo that would have 

been obtained but for the wrongful act; 

· Deter future violations; 

· Are not punitive; 

· Are responsive to the legitimate interests of the parties; and 

· Effectuate and promote the purposes and policies of the Statute.

3. APPROPRIATE REMEDIES ARE CONSIDERED THROUGHOUT THE 

PROCESSING OF A ULP CHARGE AND ULP COMPLAINT: 
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ROs consider and evaluate potential appropriate remedies at the outset 

when investigating a ULP charge through the issuance of a complaint, and 

if necessary, litigation of a complaint: 

a. Evidence is obtained pertaining to the appropriate remedy during 

the investigation of the ULP charge: 

During the investigation of a charge, the Agent obtains relevant testimonial 

and documentary evidence concerning the legitimate interests of the 

Charging Party in determining the particular remedy to seek. The 

investigation reveals what remedial action is necessary to effectuate the 

OGC’s remedial policy stated above at # 2. See ULPCHM, Part 3, 

concerning Investigations for further discussion. 

b. Cases that are ready for presentation to the RD for decision 

contain a recommendation for a particular remedy when the 

recommendation is for issuance of complaint: 

When a case is presented to the RD for a decision on the merits of the 

charge, any recommendation for issuance of complaint or alternatives 

resulting in issuance of complaint are accompanied by a recommendation 

for an appropriate remedy. Just as recommendations for dismissal of 

complaint are supported by record evidence, recommendations for an 

appropriate remedy are also supported by record evidence. RD decisions 

authorizing issuance of complaint, absent settlement, include the decision 

on the remedy to be sought in litigation. See ULPCHM, Part 4, Chapter D

concerning Regional Director Merit Determinations for further discussion. 

c. Notice of remedy in complaint: 

Notice of unique or novel remedies is given in the complaint. 

d. Transmittal memoranda: 

The transmittal memorandum that accompanies the issuance of a 

complaint sets forth the remedy to be sought in litigation, cites any novel 

precedent supporting the remedy, and notes any significant facts or issues 

pertaining to the appropriateness of the remedy and potential difficulties in 

obtaining that particular remedy. See Part 1, Chapter A concerning 

Issuance of the Complaint for further discussion. 
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 A transmittal memorandum, and other pre-decisional documents 

are not subject to disclosure under the Freedom of Information 

Act as it is exempted from disclosure under Exemption 5. See

5 U.S.C. § 552(b)(5). A transmittal memorandum comes within 

the deliberative process privilege which has the purpose of 

“prevent[ing] injury to the quality of agency decisions.” NLRB v. 

Sears, Roebuck, & Co., 421 U.S. 132, 151 (1975).

e. Preparation for trial: 

In preparing for trial, the Trial Attorney considers the issue of the 

appropriate remedy. In this regard, the Trial Attorney reviews witness 

testimony and documentary evidence in the same manner as evidence is 

reviewed pertaining to establishing the violation. See, Part 2, Chapters I - 

Q, concerning Preparation for Hearing. 

f. Pre-hearing disclosure requirement: 

Section 2423.23(c) requires the GC to disclose a brief statement 

concerning the theory of the case, including the relief sought, at least 

14 days before the hearing. If a nontraditional remedy is sought, all 

parties must be on notice so that no party may claim surprise. Adherence 

to the pre-hearing disclosure requirements is especially important in this 

instance. This rule applies to the Charging Party as well because the 

Charging Party can always argue for a remedy that differs from that which 

the GC is seeking. This knowledge may impact upon its desire to argue 

for or against the remedy sought by the GC and/or to argue for another 

remedy that it believes is more appropriate. 

See Part 1, Chapter N for a discussion of pre-hearing disclosure 

requirements concerning the GC’s theory of the case. 

g. The hearing:

The Trial Attorney presents witness testimony and documentary evidence 

pertaining to the appropriate remedy in the same manner as evidence is 

presented pertaining to establishing the violation. See Part 2 concerning 

the Hearing. 
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If notice of the nontraditional remedy, for some reason, is not given as part 

of the pre-hearing disclosure, the Trial Attorney sends a letter to the 

parties as soon as the Region determines to seek that remedy. In 

addition, at hearing, in the opening statement, the Trial Attorney identifies 

the novel/unique remedy that will be sought. Since the remedy was not 

noticed as part of pre-hearing disclosure, this may precipitate an objection 

from Respondent’s counsel. However, even at this late date, such notice 

does give the Respondent the opportunity to address and fully litigate the 

issues that may be required to rebut the GC’s remedy evidence and also 

provides the Charging Party with a chance to put on evidence in support 

of its own remedy. 

Before the close of the hearing, if evidence has been introduced to 

support the remedy sought, but notification has not yet been made, state 

the remedy sought. As stated above, be prepared to respond to an 

objection. At least this allows the parties to brief the remedy issue and 

makes the filing of supplemental briefs unnecessary. 

h. Post-hearing briefs:

All post-hearing briefs have a separate section where the sought remedy 

is discussed. The brief discusses the relevant precedent and, citing 

record evidence, explains why the requested remedy is necessary and 

consistent with the purpose of a remedy and contains a proposed notice 

and order. See Part 3, Chapter B concerning Briefs for additional 

discussion. 

 

i. Exceptions: 

When a Trial Attorney files exceptions to an ALJ’s failure to find a specific 

violation, those exceptions also specifically encompass the ALJ’s failure to 

order the remedy requested. When an ALJ finds a specific violation but 

fails to order the complete remedy requested, the Region files exceptions 

when it determines that, under the totality of the circumstances (including 

the remedy received, the current situation and the interests of the 

Charging Party) whether the requested remedy should still be sought. 

See Part 3, Chapter F concerning Exceptions for additional discussion. 

4. TRADITIONAL AND NONTRADITIONAL REMEDIES:

a. Traditional remedies: 
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Traditional remedies, including a cease and desist order accompanied by 

the posting of a notice to employees that meets the criteria of a remedy, 

are provided in virtually all cases where a violation is found. F.E. Warren 

Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17, 52 FLRA 149, 161 

(1996). Unless the specific remedy has given rise to criteria of its own, the 

Authority does not require specific evidence to establish that traditional 

remedies are appropriate. Thus, the Authority will presume in the 

absence of persuasive contrary evidence, that the traditional remedies 

are: (1) not contrary to external law or the purposes of the Statute; 

(2) reasonably necessary to recreate the conditions and relationships with 

which the ULP interfered, and (3) deter future violative conduct. 

In addition to a cease and desist order and a posting of a notice, other 

established or traditional remedies require the Respondent to undertake 

some form of affirmative action. Such actions may include an order to: 

· retroactive bargaining order 

· grant of back pay 

· release of improperly withheld information, and 

· status quo ante remedies which have given rise to criteria of their 

own. 

See F.E. Warren, 52 FLRA at 161 (citing Federal Correctional Institution, 

8 FLRA 604 (1982) (setting forth criteria for status quo ante remedies 

where Respondent failed to bargain over procedures and appropriate 

arrangements related to a change); and Federal Deposit Insurance 

Corporation, 41 FLRA 272, 279 (1991) (setting standard for status quo 

ante remedy where Respondent failed to bargain over substance of a 

change)). 

 See OGC Guidance on Seeking Remedies for Unfair Labor 

Practices under the Federal Service Labor-Management 

Relations Statute (ATTACHMENT 1D) for comprehensive

guidance on the types of remedies and the elements of proof 

that are necessary to sustain those remedies for particular 

types of violations.

b. Nontraditional remedies: 
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Remedies that are not routinely granted as a matter of course are nontraditional. They must satisfy the same broad objectives as listed under 

#2, above. See F.E. Warren, 52 FLRA at 161; U.S. Penitentiary, 

Leavenworth, Kansas, 55 FLRA No. 127, 55 FLRA 704, 719 (1999) 

(where warden’s actions in making repeated anti-union statements at a 

mandatory meeting were egregious, and where warden was personally 

involved in many ULP violations in the case, Authority found it reasonably 

necessary to require warden’s statements to be retracted via a reading 

aloud by the warden, or by an Authority agent in the warden’s presence, 

of the notice at another meeting of all employees). Unlike traditional 

remedies, nontraditional remedies require an independent factual basis as 

support. Thus, where the GC asks for a nontraditional remedy, the GC 

must show why a traditional remedy would not be effective (in essence, 

rebutting the Authority’s presumption of the effectiveness of a traditional 

remedy) and why the evidence shows that a nontraditional remedy is 

necessary. See, e.g., U.S. Department of Commerce, National Oceanic 

and Atmospheric Administration, National Oceans Service, Coast Guard 

and Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 

54 FLRA No. 92, 54 FLRA 987, 1023, 1026 (1998) (nontraditional 

language in notice to reflect the findings of past violations is necessary to 

further assure employees that despite a history of violations the agency 

recognizes the employees’ statutory rights and “put[s] both employees and 

the Respondent on notice of the serious nature of the Respondent’s 

unlawful conduct”). 

Whether or not a nontraditional remedy is necessary is a factual question. 

 As with other factual questions, the GC bears the burden of proof. 

Therefore, to prevail, just like obtaining evidence to support the essential 

elements of a violation, the record must also contain specific evidence to 

support a nontraditional remedy. Where the record does not establish a 

need for a nontraditional remedy, i.e., the evidence is either insufficient or 

lacking, the Authority will deny the GC’s request. See id. at 1022 (need 

for disciplining supervisors not established in the record). 

 Record evidence, not mere policy and equity arguments, is 

essential to establishing the appropriateness of a nontraditional 

remedy. Thus, as discussed above, it is critical that testimonial 

and documentary evidence is developed throughout the 

processing of the ULP charge and complaint.

5. MONETARY RELIEF:
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a. Doctrine of sovereign immunity:

Applying the legal doctrine of sovereign immunity, the Authority requires 

the party requesting a monetary remedy to establish that there is statutory 

authority (other than that provided in the Statute) for the expenditure of 

such funds. 

See Social Security Administration, Baltimore, Maryland, 55 FLRA No. 43, 

55 FLRA 246, 250-51 (1999) (Back Pay Act, 5 U.S.C. § 5596(b)(1) and 

(2)(A), explicitly provides that ULP remedies shall be payable with interest 

which operates as an explicit waiver of sovereign immunity); Immigration 

and Naturalization Service, Los Angeles District, Los Angeles, California 

52 FLRA No. 11, 52 FLRA 103, 104-06 (1996) (adopting Department of 

the Army, U.S. Commissary, Ft. Benjamin Harrison, Indianapolis, Indiana 

v. FLRA, 56 F.3d 273 (D.C. Cir. 1995) (vacating in part Department of the 

Army, U.S. Army Soldier Support Center, Fort Benjamin Harrison, Office of 

the Director of Finance and Accounting, Indianapolis, Indiana, 48 FLRA 

No. 2, 48 FLRA 6 (1993)). 

b. Equitable relief:

The Authority will uphold specific remedies that are equitable in nature 

even if the remedy requires the expenditure of money. U.S. Department 

of Veterans Affairs, 55 FLRA No. 195, 55 FLRA 1213, 1216-17 (2000) 

(remedy requiring Respondent to reduce parking rates for a period of time 

necessary to offset the difference between the unlawfully implemented 

rate and the former rate until such time as the employees have been fully 

reimbursed is equitable); U.S. Department of Transportation, Federal 

Aviation Administration, Northwest Mountain Region, Renton, Washington, 

55 FLRA No. 46, 55 FLRA 293, 298-99 (1999) (notwithstanding a 

Respondent’s contrary contention, relief ordered by ALJ, to obtain parking 

spaces for unit employees, at no cost to the employees, in a different 

location than had been made available by Respondent, is not a remedy for 

money damages in contravention of the doctrine of sovereign immunity 

and FAA has authority to obligate funds for interests in property and thus 

Respondent has authority to expend money to comply with ALJ’s order), 

petition for review filed sub nom. Department of Transportation, Federal 

Aviation Administration, Northwest Mountain Region, Renton, Washington 

v. FLRA, (D.C. Cir. Apr. 29, 1999); Federal Aviation Administration, 

55 FLRA No. 203, 55 FLRA 1271, 1277 (2000) (Remedy of make-whole 

relief for lost appraisal-linked awards due to repudiation of MOU is 

equitable in nature--the relief is the very thing that was improperly 

withheld). 
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 Part 1, Chapter A concerning Issuance of Complaint;

Part 1, Chapter N concerning Pre-hearing Disclosure; 

Part 3, Chapter B concerning Briefs; 

Part 3, Chapter F concerning Exceptions; 

ULPCHM, Part 4, Chapter D concerning Regional Director Merit 

Determinations; and 

ULPCHM, Part 5 Chapter J concerning Backpay.

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E. INJUNCTIONS 

OVERVIEW: 

Section 7123(d) of Statute provides for the GC, with Authority 

approval, to seek appropriate temporary relief from an appropriate 

United States Federal District Court when specific conditions have 

been met. OGC Injunction Policy (Oct. 4, 1996) (ATTACHMENT 

1E) provides criteria that govern the OGC’s decisional analysis with 

respect to injunctive relief. 

OBJECTIVE: 

To provide guidance on (1) the applicable criteria used to determine 

whether to seek injunctive relief; (2) the process used to request 

permission to seek appropriate relief; and (3) the process used 

once permission is granted.

1. STATUTORY AUTHORITY--§ 7123(d) OF THE STATUTE: 

Sets forth the criteria for a district court of the United States to grant 

appropriate temporary relief (including temporary restraining orders) in 

unfair labor practice cases. A court must conclude that: 

a. Granting such relief is "just and proper"; 

b. Temporary relief would not “interfere with the 

ability of the agency to carry out its essential 

functions”; and

c. There is “probable cause that an unfair labor 

practice is being committed.”
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2. CRITERIA--WHETHER TO SEEK INJUNCTIVE RELIEF:

Facts and circumstances considered in determining whether to seek 

injunctive relief: 

A decision to seek injunctive relief is appropriate only under 

extraordinary circumstances--"where the status quo must be 

maintained while the unfair labor practice complaint is processed" to 

avoid frustrating the purposes of the Statute. OGC Settlement Policy 

at 1 (Oct. 4, 1996). All facts and circumstances present in a particular 

case are examined before a decision is made to seek injunctive relief. 

Some or all of the following factors, among others, are considered in 

determining whether a particular case meets the criteria set forth in 

§ 7123(d) of the Statute for injunctive relief: 

a. Seriousness of the violation;

b. Legal precedent;

Is the law clear regarding the violation alleged? 

c. Disruption to the essential functions of the 

agency Respondent; 

Would granting an injunction interfere with the 

ability of an agency to fulfill an essential 

function? 

d. Timeliness of the dispute; 

Is the request timely in relationship to the 

underlying events? 

e. The remedy; and

Will the failure to maintain the status quo 

frustrate the remedial purposes of the Statute? 
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f. Harm to the statutory right to organize and be 

represented. 

Does the violation undermine the fundamental 

right to organize and/or engage in collective 

bargaining? 

3. PROCESSING REQUEST FOR APPROPRIATE TEMPORARY RELIEF:

a. Parties may make a request to the RD for 

appropriate temporary relief at any time during 

the processing of a charge. 

b. RDs may recommend to the GC that Authority 

permission be requested to seek appropriate 

temporary relief when the above criteria indicate 

that such relief meets the statutory criteria. 

c. RDs establish internal screening systems to 

identify those charges which warrant an 

expedited investigation which may be cases 

where temporary relief is appropriate. 

4. RD’S OR GC’S DECISION REGARDING TEMPORARY RELIEF IS NOT 

APPEALABLE:

A decision not to seek appropriate temporary relief is not subject to appeal 

whether or not it is (1) the RD’s decision not to recommend to the GC or 

(2) the GC’s decision not to ask the Authority for permission to seek 

appropriate temporary relief. See § 2423.10(b) (GC determination not to 

seek Authority’s approval for temporary relief is not appealable). 

5. PROCEDURE ONCE DETERMINATION IS MADE TO SEEK TEMPORARY 

RELIEF:

 
Initial Matters 

Injunctions 

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a. Issuance of complaint seeking earliest possible 

hearing date: 

If the GC decides to request from the Authority to seek 

appropriate § 7123(d) relief, the OGC instructs the 

Region to issue complaint and to seek the earliest 

possible hearing date (usually 25 days from issuance of 

the complaint) on the ULP complaint. In certain 

extraordinary circumstances, the Region may request a 

hearing at an earlier time. 

 The RD does not issue complaint until the OGC informs the 

Region that the GC has forwarded the Region’s recommendation 

to the Authority. 

b. Notification to the parties and settlement 

attempts:

The Region notifies the parties that the Region is 

issuing a complaint and that the GC is requesting 

permission from the Authority to seek immediate relief. 

Settlement is discussed thoroughly with each party 

because seeking injunctive relief is often a catalyst for 

resolution of disputes. Any settlement sought comports 

with the GC's Settlement Policy. See Part 1, Chapter 

H. The RO strives to settle the underlying ULP case in 

its entirety to avoid the need for seeking temporary 

relief and litigating the case.

c. Denial of GC’s request:
Initial Matters 

Injunctions 

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Litigation Manual 1−5

If the Authority denies the GC's request, the RO orally 

notifies the parties that: 

· The request has been denied; 

· The Authority’s decision cannot be 

appealed; and 

· The ULP case will be tried, absent 

settlement, as soon as practical. 

d. Approval of GC’s request: 

· If the Authority approves the GC's 

request, the OGC notifies the Region 

processing the case, and all other ROs; 

and 

· The OGC also informs the national level 

of the Charged Party of the intent to seek 

temporary relief, as well as urges officials 

at that level to assist in settling the 

dispute. 

e. Seeking temporary relief in district court: 

· The Region telephonically informs the 

parties of its intent to file for injunctive 

relief and confirms this in writing to the 

Respondent’s counsel of record; 

 
Initial Matters 

Injunctions 

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· Settlement is vigorously pursued while the 

preparation of the pleadings continues; 

and 

· The Region files the appropriate papers in 

person in the district court having 

jurisdiction over the matter as soon as 

possible after the Authority's authorization. 

 Jurisdiction under § 7123(d) of the 

Statute lies in the district court of the 

United States within which the ULP is 

alleged to have occurred or in which the 

party sought to be enjoined resides or 

transacts business. 

f. Litigation of the ULP complaint after appropriate 

temporary relief has been obtained:

Whenever appropriate temporary relief has been 

obtained, the Region continues efforts to settle 

the ULP complaint and the injunction action. 

 Part 1, Chapter H concerning Post-Complaint/Pre-Hearing 

Settlements; and 

ULPCHM, Part 2, Chapter E concerning Injunctions.
Initial Matters 

Injunctions 

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RESERVED
Alternatives to Hearing 

Motions for Summary Judgment

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Litigation Manual 1−0

F. MOTIONS FOR SUMMARY JUDGMENT

OVERVIEW:

Pursuant to § 2423.27, ALJs have the authority to rule on Motions 

for Summary Judgment. The Authority has applied the criteria in 

Rule 56 of the FRCP to these motions. Typically, the GC initiates a 

Motion for Summary Judgment after a Respondent’s answer admits 

all material facts or the Respondent fails to answer the complaint.

OBJECTIVE:

To provide: (1) criteria for determining whether to file a Motion for 

Summary Judgment and (2) guidance on processing requirements 

(when, where, what, and how).

1. CRITERIA FOR FILING:

The Authority has adopted FRCP Rule 56 as the criteria for Motions for 

Summary Judgment. 

U.S. Equal Employment Opportunity Commission, 51 FLRA No. 26, 

51 FLRA 248, 252-53 (1995) (citing U.S. Department of the Navy, U.S. 

Naval Ordnance Station, Louisville, Kentucky, 33 FLRA No. 1, 33 FLRA 3, 

4-6 (1988)), rev’d on other grounds sub nom. Department of the Navy, 

U.S. Naval Ordnance Station, Louisville, Kentucky v. FLRA, No. 88-1861 

(D.C. Cir. Aug. 9, 1990) (unpublished)). 

a. When is the filing of a Motion for Summary 

Judgment appropriate?

When the facts alleged in the complaint support 

judgment as a “matter of law.” On a Motion for 

Summary Judgment, the ALJ cannot decide the facts; 

s/he can only determine whether there are material 

issues of fact; if so, the motion must be denied. 
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Three situations in which the filing of a Motion for 

Summary Judgment is appropriate are: 

i. Where Respondent fails to answer a 

properly served complaint. 

E.g., U.S. Department of Treasury, Customs 

Service, Washington, D.C. and Customs Service, 

Region IV, Miami, Florida, 37 FLRA No. 44, 

37 FLRA 603, 610 (1990); U.S. Department of 

Energy, Washington, D.C., OALJD 98-39 (1998) 

ii. Where Respondent admits all material 

facts alleged in the complaint. 

E.g., Department of Veterans Affairs, Veterans 

Affairs Medical Center, Nashville, Tennessee, 50 

FLRA No. 40, 50 FLRA 220, 227 (1995). 

iii. Where Respondent does not admit every 

fact, but the contested facts can be 

proven by uncontested documents or 

affidavits. 

Id. at 222 (facts in an affidavit showing that the 

foreseeable impact of change was more than de

minimis were correctly considered by ALJ). 

 Motions for Summary Judgment are probably not appropriate in 

cases where motive or intent is a necessary element of proof. 

This is typically shown by testimony at the hearing. But see U.S. 

Customs Service, St. Louis, Missouri, DE-CA-70590, ALJD Rpt. 

No. 134 (1998) at pages 5-11 (ALJ granted Respondent’s motion 
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for summary judgment in 7116(a)(1) and (2) case over GC’s 

objection finding that GC had not made a sufficient showing that 

Respondent’s asserted reasons for taking the allegedly 

discriminatory action were motivated by consideration of 

protected activity).

 The Trial Attorney discusses the litigation strategy with the RA. 

Specifically, given the facts and circumstances of a particular 

case, consideration must be given to whether to file a motion for 

summary judgment or whether to file a joint motion to rule on a 

case based on the parties’ stipulations of fact.

b. Supporting documents, affidavits, applicable 

precedent, or other appropriate materials:

i. Section 2423.27(a) requires that a Motion 

for Summary Judgment include supporting 

documents, affidavits, applicable 

precedent, or other appropriate materials. 

 Presumably, other forms of uncontested 

evidence would be acceptable to the 

Authority as “other appropriate materials,” 

such as interrogatories, admissions, or 

depositions. See FRCP 56(a), and (b). 

ii. If affidavits are provided by a moving 

party, the response to the Motion must be 

countered with affidavits, not mere 

assertions. 

Vreeken v. Davis, 718 F.2d 343, 347 (10th 

Cir. 1983); Holland v. Bank of America, 

673 F. Supp. 1511, 1514 (S.D. Cal. 1987). 

c. When:
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Although no rule governs, to move the process along, 

file the motion as soon as possible after the Answer is 

due or has been filed. Judges usually postpone the

hearing indefinitely upon receipt of the motion. 

d. What is filed:

An original and four copies of supporting documents, 

except when filing is by facsimile when one copy is

sufficient. The motion typically consists of at least three 

documents. 

· Motion for Summary Judgment; 

· Brief or memorandum in support of the 

Summary Judgment; 

· Supporting affidavit(s), document(s), or 

other appropriate material(s). 

e. Service:

i. All parties must be served with motions. 

§§ 2423.21(a); 2429.27(b). 

ii. Service is by certified mail, first-class mail,

commercial delivery in person, or by 

facsimile where appropriate. §§ 

2429.24(e); 2429.27(b). 

iii. Filing date is the date deposited in the 

mail, or date of personal or commercial 
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delivery, or the date the facsimile is 

transmitted. § 2429.27(d). 

f. Response:

Is made within five days after service (mailing date) plus 

five days for mailing (if applicable). See § 2423.27(b). 

When a Motion for Summary Judgment is filed by 

facsimile transmission, a response must be filed within 

five days after service. However, an ALJ may issue an 

Order to Show Cause to the parties providing a set 

period of time in which to file responses to the Order to 

Show Cause Why the Motion Should Not Be Granted. 

2. CONTENTS OF THE MOTION FOR SUMMARY JUDGMENT:

Sets out the procedural background of the case. The motion then either 

sets out in full the paragraphs of the complaint which were admitted or 

attaches and incorporates the complaint (and the Answer, if there is one) 

to show all material facts were plead and the complaint states the basis for 

a ULP. 

3. CONTENTS OF BRIEF IN SUPPORT OF MOTION COVER FIVE MAIN 

POINTS:

· Procedural bases for the motion; 

· Discussion of the facts, as admitted; 

· Argument that the admitted facts constitute a ULP; 

· Discussion of the recommended remedy; and 

· Inclusion of references to documents, affidavits, etc., to support 

motion. 

See ATTACHMENT 1F1 for an example of a Motion for Summary 

Judgment and Supporting Brief and ATTACHMENT 1F2 for an example of 

an Opposition to a Motion for Summary Judgment noting, in particular, the 

affidavit in support of the opposition. 
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4. CROSS-MOTION FOR SUMMARY JUDGMENT:

In addition to opposing a Motion for Summary Judgment, the Trial Attorney 

may file a Cross-Motion for Summary Judgment. This motion asserts that 

there are no material issues of fact and that judgment should be granted 

on behalf of the cross-motion--not in favor of the party filing the original 

Motion for Summary Judgment. 

5. ALJ RULINGS ON MOTIONS FOR SUMMARY JUDGMENT:

A Motion for Summary Judgment may be granted in whole or in part. 

§ 2423.27(c). If all issues are decided by summary judgment, no hearing 

is held. If summary judgment is denied or is granted only in part, the 

hearing shall proceed, as necessary. 

 Part 1, Chapter G concerning Stipulations; and

Part 1, Chapter L concerning Motions.
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 RESERVED 

Alternatives to Hearing

Stipulations

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G. STIPULATIONS

OVERVIEW: 

Pursuant to § 2423.26, all parties may jointly submit a motion to the 

ALJ or Authority when they agree that no material issue of fact 

exists, and request that the matter be ruled on based on the parties’ 

stipulations of fact. 

OBJECTIVE:

To provide criteria to identify and process those limited number of 

ULP cases which, after the RD has issued a complaint, are 

appropriate candidates for either an ALJ’s or the Authority’s ruling 

based on the parties’ stipulations of fact.

1. CRITERIA FOR TRANSFER OF CASE TO THE AUTHORITY:

Pursuant to § 2423.26(a), and (c), transfer of the case to the Authority

based upon the parties’ stipulation is appropriate when based on the 

following criteria: 

a. All parties agree that no material issue of fact 

exists;

b. Stipulation provides an adequate basis for 

application of clear, established precedent, e.g., 

mid-contract bargaining; and 

c. A decision by an ALJ would not assist the 

Authority in resolving the case.

2. TRIAL ATTORNEY TASKS IN ENSURING THAT CASE MEETS THE ABOVE 

CRITERIA AND IN DEVELOPING STIPULATION: 

a. The Trial Attorney assigned to the case has 

thoroughly researched the point of law at issue, 

and concludes that the case is appropriate for 
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Stipulations

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submission to the Authority based on the parties’ 

stipulation. 

That is, the Trial Attorney has researched the point of 

law at issue and concludes that it is well-settled and 

knows the material facts that must be presented to the 

Authority to decide the case and includes those facts in 

the stipulation. 

If all material facts are not presented, the Authority may 

deny the motion to decide the case by stipulation. See

§ 2423.26(d); Cf. Bureau of Indian Affairs, Uintah Ouray 

Area Office, Ft. Duchesne, Utah, 52 FLRA No. 60, 52 

FLRA 629, 647-48 (1996) (Chair Segal’s dissent) (Chair 

would have remanded case under prior regulations 

which permitted remands because she was unable to 

determine from stipulated facts whether information

requested met the particularized-need test applicable 

under § 7114(b)(4)). 

b. The Trial Attorney ensures that the parties agree 

on the material facts but disagree as to the 

appropriate law, i.e., Respondent has admitted 

all factual allegations in the complaint. 

This most frequently occurs where the allegation is a 

violation of § 7116(a)(5), e.g., midtem bargaining where 

there is a conflict among the circuits. 

c. The Trial Attorney ensures that the facts 

stipulated, including any attached exhibits 

incorporated therein, must be sufficiently detailed

and internally consistent to allow the Authority to

make the necessary findings. 
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Otherwise, the Authority will likely deny the motion to 

decide the case by stipulation. Cf. Federal Aviation 

Administration, Washington, D.C., 52 FLRA No. 51, 52 

FLRA 548, 552-54 (1996) (under prior regulations case 

remanded because majority of Members could not 

determine what proposal was submitted to the agency

that led to its refusal to bargain); U.S. Department of 

Justice, Immigration and Naturalization Service, 

Chicago District Office, Chicago, Illinois, 52 FLRA No. 

66, 52 FLRA 686, 691-93 (1996) (Authority remanded 

case to develop record because unable to assess 

defense based on the contract); Social Security 

Administration, Baltimore, Maryland, 55 FLRA No. 43, 

55 FLRA 246, 249 (1999) (remand necessary to 

determine whether Respondent delayed compliance 

with an arbitration award and thus committed a ULP). 

 As stated above, the Authority will not remand cases. The 

practice is to deny the parties’ motion to decide the case by 

stipulation. If the Authority grants the parties’ motion, the case 

will be decided by stipulation. 

d. The Trial Attorney ensures that the case does 

not present any issue related to the resolution of 

the credibility of evidence. 

For example, cases based upon an alleged § 

7116(a)(2) violation are not candidates for transfer to

the Authority based upon stipulations of fact. 

e. The Trial Attorney ensures that the parties do not 

stipulate to legal conclusions, e.g., the impact of

a change in a condition of employment.
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f. The Trial Attorney ensures that every stipulation 

contains an agreement stating that if the 

Authority denies the joint motion to consider the 

case based on the stipulations of facts, the case 

will be referred to the ALJ. If the ALJ denies the

motion as well, the parties have the option of 

either (1) making the stipulation a joint exhibit or 

(2) withdrawing the stipulation. 

 The Trial Attorney discusses all litigation strategy with the RA. 

Specifically, given the facts and circumstances of a particular 

case, consideration must be given to whether to file a joint motion 

to rule on a case based on the parties’ stipulations of fact or 

whether to file a motion for summary judgment. In every case, 

the RA and Trial Attorney must balance the effort required to 

develop stipulations of fact against the possibility that the 

Authority will deny the parties’ motion. 

3. CRITERIA FOR STIPULATIONS TO THE ALJ:

a. All parties agree that no material issue of fact

exists; and 

b. Decision of ALJ would help Authority to resolve 

case, i.e., case precedent is not well settled.

4. PROCESSING REQUIREMENTS:

An original and four copies, unless filing is by facsimile in which case one 

legible copy is filed. 

§§ 2423.24 and 2423.25. 

 Part 1, Chapter F concerning Motions for Summary Judgment.

Alternatives to Hearing 

Post Complaint/Pre-Hearing Settlements

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H. POST-COMPLAINT/PRE-HEARING SETTLEMENTS 

OVERVIEW:

At any time in the proceedings it is OGC Policy “to seek 

settlements that enhance the parties’ relationship; resolve the 

issues that have brought the parties to seek FLRA assistance; 

and further the purposes of the . . . Statute.” OGC Settlement 

Policy (May 25, 1994) (ATTACHMENT 1H) . OGC Policy 

recognizes the need for greater flexibility and creativity in 

assisting the parties to not only resolve cases but improve 

their overall relationship. To accomplish this goal, a 

settlement agreement may depart from the traditional view that 

its content should mirror the remedy anticipated at hearing. In 

light of this policy, after reviewing and analyzing the case file, the 

Trial Attorney first considers exploring settlement possibilities with 

the parties.

OBJECTIVE:

To provide an overview of the different types of settlements, the 

Trial Attorney’s role in that process and in the OALJ Settlement 

Judge Program. 

1. TYPES OF SETTLEMENTS: 

a. Party Settlements Involving Withdrawal of 

Charge (PSIWOC): Post-Complaint: 

Occur at any stage of proceedings--policy 

considerations and applicable criteria for settling cases 

after issuance of complaint are identical to those prior 

to dispositive action: 

i. Regulatory authority: 
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Pursuant to § 2423.11(a)(1), an RD is 

authorized to approve such a withdrawal 

instead of issuing a complaint. This 

includes PSIWOCs. 

ii. Form: 

(a) Almost any form is permitted 

because the parties themselves 

have negotiated the terms and built 

the foundation for their future 

relationship voluntarily without the 

need for monitoring from the RO. 

These settlements may have been 

reached privately (without involving 

the RO) or with the assistance of 

the Trial Attorney as 

facilitator/mediator. 

(b) No matter how simple the 

agreement may seem, a written 

memorialization is almost always 

preferable. 

(c) RD will approve a withdrawal 

request based on a private party 

settlement unless it is “repugnant to 

the purposes and policies of the 

Statute.” OGC Settlement Policy at 

2. 
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(d) The Trial Attorney reminds the 

parties that the agreement, which 

involves the withdrawal of the 

charge, will not be monitored by the 

RO for compliance but rather will 

have the same affect as an 

enforceable contract. 

iii. Procedure upon reaching settlement--Trial 

Attorney:

(a) Obtains a withdrawal request from 

the Charging Party. Often--but not 

required--the party settlement 

agreement itself contains explicit 

language where the Charging Party 

agrees to request withdrawal; 

(b) Transmits a memorandum to the 

RD briefly setting forth the 

allegations of the complaint and the 

terms of resolution. The Trial 

Attorney recommends approval; 

and 

(c) After RD approval and the 

scheduled trial docket is cleared: 

· Notifies OALJ; 

· Cancels court reporter; 
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· Cancels reserved hearing 

space; 

· Notifies witnesses, whether 

or not under subpoena, that 

there is no hearing; and 

· Prepares an Order 

Withdrawing Complaint and 

Notice of Hearing for RD’s 

signature. 

b. Informal Settlements:

i. Bilateral Settlements

(a) Regulatory authority: 

Section 2423.12(a) provides for bilateral 

(or “all party” if multiple charging parties or 

Respondents) settlements, defining them 

as settlements to be approved by the RD, 

and monitored by the RD to ensure 

compliance. 

(b) Form: 

(1) RD will approve any form 

unless content is “repugnant 

to the Statute (for example, 

a settlement agreement in a 

7116(a)(2) discrimination 
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case which provides no relief 

to the individual 

discriminatee).” OGC 

Settlement Policy at 3 (need 

for creativity in fostering the 

parties’ overall relationship 

flexibility to allow for a broad 

range of solutions). 

(2) Although still permissible, 

GC settlement agreement 

forms and FLRA form 

Notices (ATTACHMENT 1H, 

incorporating FLRA forms 

54, 55, 57, 58 and 64), are 

no longer required. The 

Trial Attorney is free to 

encourage the parties to 

explore creative solutions 

while at the same time 

informing the Charging Party 

of the benefit of having the 

RD approve the Settlement 

Agreement and monitoring 

compliance with the 

Agreement. 

(c) Procedure upon reaching 

settlement--Trial Attorney: 

(1) If a traditional format is used: 
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Drafts the settlement and proposed 

notice for submission to both 

parties simultaneously but only 

after considering the interests and 

input of both parties. The Notice 

explicitly addresses the allegations 

in the charge and is consistent with 

FLRA orders in similar cases. An 

Order Withdrawing Complaint and 

Notice of Hearing need not be 

prepared because the form 

contains applicable language. 

(2) If a creative approach is 

used: 

Submits the signed agreement to 

the RD for approval. After 

approval, prepares and sends a 

letter to the Charged Party 

concerning its obligations under the 

agreement which gives the 

Charged Party a specified amount 

of time to report to the RD the 

steps taken to comply with the 

agreement. Depending upon 

regional practice, another regional 

staff person may complete this 

task. 

As with a party settlement, the Trial 

Attorney must inform the OALJ, 
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cancel the court reporter, cancel 

the hearing space and inform the 

witnesses that the hearing has 

been canceled. 

(3) In either case, complete 

tasks listed under 1.a.iii.(c) 

above. 

ii. Unilateral settlements 

(a) Regulatory authority: 

Section 2423.12(b) authorizes RDs, upon 

a belief that the policies of the Statute 

would be effectuated and when the 

Charging Party refuses to enter into an 

informal settlement offered by the 

Respondent, to enter into the agreement 

and decline to proceed with the complaint. 

 The Charging Party has the right to 

appeal. 

(b) Form: 

(1) Identical to a bilateral 

agreement discussed in 

preceding section 3.b.i.(b)--

FLRA forms may, but need 

not, be used. 
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(2) Consider and apply basic 

unilateral settlement criteria 

set forth in OGC Settlement 

Policy at 4-5 before 

forwarding it to RD for 

approval (because the 

Charging Party is not a 

party--settlement: (1) has 

not helped the parties’ 

relationship; (2) has not 

completely resolved the 

specific charge; and (3) may 

be appealed). 

(c) Procedure upon reaching unilateral 

settlement--Trial Attorney: 

(1) Submits the agreement to 

the RD for signature; 

(2) Completes tasks listed under 

1.a.iii.(c) above; 

(3) Ensures that the OALJ is 

apprised that the settlement 

is unilateral and subject to 

appeal, so that the OALJ 

knows that disposition of the 

case is not final; 

(4) Prepares a transmittal letter 

to the Charged Party 
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announcing approval of the 

agreement, but noting that 

the case is subject to appeal 

and compliance need not 

commence until further 

instructions are issued; and 

(5) Prepares a dismissal letter 

addressed to the Charging 

Party, setting forth its 

objections to the agreement 

and the reasons the RD is 

nevertheless approving the 

agreement. The dismissal 

letter sets forth the Charging 

Party’s appeal rights. 

c. Formal Settlements:

i. Regulatory authority: 

(a) Section 2423.25(a)(2) provides for 

post-complaint/pre-hearing formal 

settlements. 

(b) OGC Settlement Policy provides 

for seeking formal settlements 

“in cases in which the Charged 

Party has shown a deliberate and 

contumacious unwillingness to 

abide by the requirements of the 

Statute.” Settlement Policy at 1. 
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In practice, formal settlements are 

not commonly used. 

 

ii. Form and Content:

A formal settlement consists of a record to 

be submitted to the FLRA including the 

complaint and a stipulation, where the 

parties agree to the facts of the case and 

where the Respondent admits to violating 

the Statute, and the following: 

· Identification of the parties; 

· Information relating to the filing, 

service and receipt of the charge 

and any amended charge, and to 

the issuance, service and receipt of 

the complaint and any amended 

complaint. Copies of all such 

documents are attached as exhibits 

and incorporated by reference; 

· A statement that the parties are 

subject to the jurisdiction of the 

Statute; 

· A statement waiving a formal 

hearing, ALJ decision, and any 

other proceedings to which parties 

might be entitled under the Statute 

or the Regulations; 
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· Descriptions of all bargaining units 

involved; 

· A listing of the documents and 

pleadings which constitute the 

entire record; 

· An admission by Respondent to the 

statutory violation(s); 

· An express consent to entry of an 

FLRA Order without notice, 

including the exact provisions of 

such order; 

· An express consent to the entry by 

an appropriate U.S. Court of 

Appeals of a decree enforcing the 

FLRA Order without further notice 

(see § 2423.25(a)(2)); 

· A statement that the formal 

settlement agreement contains the 

entire agreement of the parties; 

· A statement that the settlement is 

subject to the approval of the 

FLRA; and 

· A provision for the entry of the 

signature and title of the authorized 
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representative of each party and 

the date of the signature. 

iii. Procedure:

After the RD approves the formal 

settlement, the RD transmits an original 

and three copies of the agreement and 

the exhibits directly to the FLRA for 

approval. 

2. TRIAL ATTORNEY’S ROLE IN SETTLEMENTS:

a. Tasks Trial Attorney performs in initiating 

conference calls without ALJ settlement judge: 

i. Contacts both parties to attempt to 

schedule a conference call. 

ii. During these initial phone calls, obtains 

input as to each party’s interests. The 

Trial Attorney speaks to each party as 

simultaneously as practicable so that both 

parties are actively providing input. 

iii. If the conference call is arranged, may act 

as a mediator/facilitator because Trial 

Attorney represents the public interest, not 

the interest of the Charging Party. 

iv. Suggests ground rules to govern 

conference calls. For example, no 

information that is shared will be used 
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outside the context of the discussion. 

Therefore, admissions made during 

settlement discussion cannot be used 

adversely to the party making these 

statements. 

b. ALJ Settlement Judge Program:

OALJ’s assistance under the Settlement Judge 

Program, is a recourse if Trial Attorney’s 

settlement efforts are unsuccessful. See § 

2423.25(d). Any party, including the GC, may 

seek assistance. The Program is designed to 

supplement, not to supplant, traditional 

settlement efforts. Unless one of the other 

parties has requested assistance, the Trial 

Attorney first tries to get the parties to settle the 

case without OALJ involvement. 

i. Criteria--When is assistance requested? 

(a) Easy issues, get parties talking 

If the issues appear easy to resolve, there 

is no reason to initiate the settlement 

judge process. Sometimes, however, 

involvement of the Settlement Judge will 

spur the parties to talk with each other 

sooner. 

(b) Reluctant Respondent
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The Settlement Judge Program addresses 

the concern of Respondents who may be 

reluctant to engage in meaningful 

discussions for fear of “giving away its 

case” by promising complete 

confidentiality and inadmissibility of any 

discussions, unless the parties otherwise 

agree. If the case goes to trial, it will be 

assigned to a different Judge who will not 

discuss the case with the Settlement 

Judge. 

(c) Difficult parties and issues and/or 

relationship problems

The best time to use the Settlement Judge 

Program is when the Trial Attorney 

encounters particularly difficult parties and 

issues and/or who are experiencing 

problems with their overall relationship. 

(d) Any other party requests 

Settlement Judge

In this situation, the Trial Attorney always 

participates. However, the Trial Attorney 

does not participate in “unilateral” 

discussions, i.e., the Charging Party must 

agree to participate. If the Settlement 

Judge program is initiated, the Trial 

Attorney always participates even if the 

Charging Party chooses not to participate. 
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ii. Procedure--How to utilize the Settlement 

Judge Program:

· Trial Attorney prepares, submits, 

and serves parties with a written 

request for assistance to the Chief 

ALJ as soon as possible after 

issuance of complaint. The request 

is usually made well in advance of 

the anticipated date of the prehearing disclosure which, unless 

otherwise agreed to by the parties 

or ordered by the ALJ, is 14 days in 

advance of the hearing. See § 

2423.23; 

· The request includes telephone 

and fax numbers of all party 

representatives so that the 

Settlement Judge can contact them 

to schedule a conference call; 

· The conference call is scheduled at 

least two to three weeks prior to 

hearing; and 

· During the telephone conference 

call, the Trial Attorney is a 

facilitator; however, s/he is always 

aware that the GC is a party to the 

litigation. 
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iii. Inadmissibility of settlement discussion 

information at hearing: 

As discussed above, § 2423.25(d)(4) provides 

that “[n]o evidence regarding statements, 

conduct, offers of settlement, and concessions of 

the parties made in proceedings before the 

settlement official shall be admissible in any 

proceeding before the [ALJ] or Authority, except 

by stipulation of the parties.” 
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RESERVED
Preparation for Hearing 

Relationship with the Charging Party Representative

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I. RELATIONSHIP WITH THE CHARGING PARTY 

REPRESENTATIVE

OVERVIEW:

The Trial Attorney must establish a working relationship with the 

Charging Party’s representative and also ensure that the Charging 

Party understands that you represent the GC, not the Charging 

Party.

OBJECTIVE:

To provide guidance concerning a Trial Attorney’s pre-hearing 

responsibilities as they relate to establishing a relationship with the 

Charging Party representative in settlement discussions and the 

preparation of witnesses.

1. SETTLEMENT DISCUSSIONS:

a. Advise the OALJ of name, address, and phone 

number of the Charging Party’s representative 

for inclusion in all settlement discussions. 

b. The Trial Attorney apprises all parties of the 

remedy that will be sought by the GC at the 

hearing. If Charging Party’s representative has a 

differing view, either with respect to the remedy 

to be sought at hearing or the terms of a 

settlement agreement, inform the Charging Party 

of the right to fully state his or her views and 

opinions. 

c. Inform Charging Party’s representative of § 

2423.25(b) which provides for the RD to accept a 

post-complaint formal or informal settlement 
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agreement that effectuates the policies of the 

Statute without agreement of the Charging Party. 

2. PREPARATION OF WITNESSES:

d. Inform Charging Party’s representative of GC’s 

burden of proof.

The GC has responsibility of presenting the evidence in 

support of complaint to prove the allegations of the 

complaint by a preponderance of the evidence. 

e. The Charging Party’s representative has no right 

or obligation to be present and participate in the 

preparation of unit employee witnesses. 

If the Charging Party requests to be present, determine 

whether it would be helpful to have the person’s 

presence. 

3. OVERALL RELATIONSHIP THE SAME AS WITH ANY OTHER PARTY:

The Trial Attorney’s overall relationship with the Charging Party 

representative is the same as with any other party to the proceeding with 

respect to: 

a. Not providing access to, or copies of, affidavits supplied by any 

witness.

§ 2423.8(d); See Internal Revenue Service, Boston District Office, Boston, 

Massachusetts and Internal Revenue Service, Andover Service Center, 

Andover, Massachusetts, 5 FLRA No. 96, 5 FLRA 700, 701 n.2 (1981) 

(pre-hearing disclosure of documents supplied by Charging Party witness 
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during the investigation is violative of regulatory policy and affects weight 

accorded to the testimony). 

b. Pretrial release of: witness list, documents, and theories of case. 

 

See Part 1, Chapter N concerning Pre-hearing Disclosure. 

4. RELEASE OF AFFIDAVITS OR DOCUMENTS TO CHARGING PARTY:

Situations warranting the release of an affidavit of a Charging Party 

witness, or the release of documents contained in the file to the Charging 

Party representative: 

· Affiant gives permission for release of the affidavit to the 

Charging Party representative. 

· A copy of the document has already been, or should have been, 

supplied to the Charging Party representative. 

· The documents were discovered pursuant to a subpoena 

request. 

 Part 1, Chapter D concerning Remedy; 

Part 1, Chapter N concerning Pre-hearing Disclosure; 

Part 2, Chapter E concerning the Role of the Charging Party 

Representative at the Hearing; and 

Part 2, Chapter Y for Guidance on Handling Difficult Situations with

Respondent or Charging Party Representative. 
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RESERVED
Preparation for Hearing 

Pre-Trial Preparation of Witnesses 

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J. PRE-TRIAL PREPARATION OF WITNESSES

OVERVIEW:

Pre-trial preparation of GC witnesses is pivotal to successful ULP 

litigation. This is the Trial Attorney’s opportunity to shape the GC’s 

case-in-chief. Rarely does the GC win a case through crossexamination of Respondent’s witnesses. Rather, a case is won 

through careful construction of the case-in-chief.

OBJECTIVE: 

To provide guidance on: (1) the tasks that must be accomplished 

for effective pre-trial 

preparation of the GC’s 

witnesses and (2) handling 

unusual or special 

circumstances. 

1. GOALS OF PRE-TRIAL PREPARATION OF WITNESS:

a. Establish rapport with the witness:

If the Trial Attorney did not investigate the case, the initial meeting for trial 

preparation is the first opportunity to establish some sort of rapport with 

each witness. Even if the attorney also investigated the case, there may 

be witnesses called to testify at trial who were not contacted during the 

investigation. In any event, the fundamental relationship with Charging 

Party witnesses is transformed by reason of the RD’s issuance of the 

complaint. The Trial Attorney is no longer a "neutral" investigator; rather, 

s/he is now an advocate who is responsible for prosecuting an alleged 

violation of the Statute. 

b. Familiarize the witness with the hearing process:

Ascertain experience level of witness: 
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· Has witness ever testified at a ULP hearing? 

· Has witness ever testified in a courtroom setting? 

Explain various aspects of the hearing process: 

· That witness may be sequestered. 

· That you will question the witness first. 

· That witness will be subject to crossexamination, but that it is your role to protect the 

witness from unfair/improper questioning. 

· That ALJ may question witness. 

· What happens when objections are made. 

Provide general advice to witness: 

· Provide copy of document titled "Advice to 

Witnesses in Preparation for Hearing." 

(ATTACHMENT 1J) 

· Advise the witness not to bring notes or other 

documents to the hearing. (They may be subject 

to disclosure to Respondent’s counsel.) 

· Advise the witness to make sure s/he has a clear 

understanding of the question being asked 

before giving answer. 
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· Advise the witness to respond to questions as 

directly as possible and especially to avoid 

appearing evasive during cross-examination. 

· Advise the witness to maintain composure at all 

times: do not allow Respondent’s counsel to "get 

to you." 

· Discuss the witness’s appearance and 

appropriate attire. 

c. Explain the witness’s role in hearing: 

It is critical during pre-trial witness preparation to 

explain the witness’s role in the hearing. At a minimum, 

this includes an explanation of the GC’s theory of 

violation and a discussion of how the witness’s 

testimony will assist the GC in presenting that theory to 

the ALJ and the Authority. This accomplishes at least 

two things: 1) it heightens the witness’s sense of

purpose in participating in the GC’s prosecution of the 

case; and 2) it helps prepare the witness for crossexamination by Respondent’s counsel. 

d. Review testimony: 

i. Use of witness statements/affidavits prehearing: 

(a) Provide a copy of any statement or 

affidavit furnished by the witness 
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during the Region’s investigation of 

the charge; 

(b) Remind witness that the affidavit is 

"fair game" for Respondent’s 

counsel during cross-examination; 

and 

(c) Use affidavit to assist in preparing 

the witness for hearing. This 

usually provides a workable outline 

of the major points to be 

established through the witness’ 

testimony. 

ii. Other uses of witness 

statements/affidavits at hearing: 

(a) To refresh a witness’ recollection; 

(b) If a witness is still unable to recall, 

used as past recollection recorded 

if the witness is able to testify that 

the contents of the statement were 

true when the statement was 

executed; and 

See Part 2, Chapter S, Subsection 4 concerning 

techniques to elicit testimony when witness 

cannot recall information sought. 

(c) For impeachment purposes. 
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 Exercise caution in using a statement to refresh recollection or as 

past recollection recorded because opposing counsel must be 

afforded the opportunity to review the statement before it is given 

to the witness. 

iii. Where feasible, a complete "dry run" (i.e., 

from start to finish) of the witness’s 

testimony is accomplished during the final 

pre-trial meeting with each witness.

 If possible, the Trial Attorney tries to meet with the witness more 

than once during trial preparation. There are several benefits to 

multiple pre-trial meetings with witnesses: 

First, multiple meetings may help the Trial Attorney to conduct a 

more detailed investigation of the case than was conducted 

during the Region’s initial investigation. 

Second, the Trial Attorney may be in a better position to tailor 

questions to the capabilities of the witness. Some witnesses are 

competent to handle any situation, while others may only be able 

to handle a limited number of questions. The scope and detail of 

the attorney’s questions depend on an assessment of the 

witness’s abilities. 

Third, if more than one session can be arranged, the witness will 

be in a better position to assimilate the critical elements of his/her 

testimony. Even a short break before the "dry run" is helpful for 

most witnesses to allow the important points to gel.

e. Review documentary evidence:

The Trial Attorney presents the witness with a copy of 

each document to be introduced through the witness. 

The Trial Attorney initially confirms that the witness has 

sufficient first-hand knowledge of each document and 
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its contents to establish the evidentiary foundation for 

introduction of the document into evidence. The Trial 

Attorney also explains to the witness how the document 

will be presented to the witness during his/her 

testimony. During the "dry run," the Trial Attorney 

incorporates the documents into the witness’ testimony. 

 Concerning extraneous markings on documents: Where 

documents intended to be introduced into evidence contain 

extraneous markings, such as hand-written notes in the margins 

of a typed document, the witness is asked during pre-trial 

preparation if s/he can identify the markings. The witness’s 

testimony then incorporates any explanation concerning the 

origin of the extraneous markings. This averts possible objection 

by Respondent’s counsel to introduction of the document into 

evidence by reason of unexplained markings on the document.

f. Prepare questions for direct examination:

The Trial Attorney presents the majority of his/her case 

through direct examination of GC witnesses. It is 

critical that the Trial Attorney plan the direct 

examination of GC witnesses to present the ALJ with a 

coherent exposition of all elements of each violation 

alleged in the complaint. 

i. First, assess why each witness is needed:

What testimony will this witness present and how 

will the testimony assist the Trial Attorney in 

establishing an element of proof necessary to the 

violation, or in rebutting a defense raised by the 

Respondent. 
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ii. Second, determine the best method of 

getting the witness’s information into the 

record:

This is primarily accomplished through the 

witness’s testimony in response to questions 

posed by the Trial Attorney, but may also be 

achieved through the introduction of documents 

which the witness is able to authenticate. 

iii. Questioning the witness: 

(a) Background information: 

The first series of questions posed to the witness 

establishes the witness’s name, position of 

employment, duration of employment and, where 

relevant, status as a member of the bargaining 

unit, connection with the labor organization, 

supervisory hierarchy, etc. This background 

information shows the ALJ that the witness has 

information potentially relevant to the 

proceeding. 

EXAMPLE

Q: Would you please state your name and 

occupation. 
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A: My name is and I work as an Aircraft 

Mechanic at Hill Air Force Base in Ogden, 

Utah. 

Q: How long have you held this position? 

A: I have been an Aircraft Mechanic at Hill 

Field since 1983. 

Q: Are you connected in any way with AFGE 

Local 1592? 

A: Yes, I have been on 100% official time as 

the President of Local 1592 since August 

1995. 

(b) Relevant factual information: 

The next series of questions posed to the 

witness establish the factual information 

on which one or more elements of the 

violation (or on which refutation of one or 

more of the Respondent’s defenses) is 

based. 

The preferred method for presenting the 

operative facts is through a chronological 

exposition of events. 

EXAMPLE

 In a unilateral change bargaining case, the 

witness may testify to his/her first learning of a 
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proposed change and submitting a request to 

bargain as follows: 

Q: Tell us what happened on June 15, 1996. 

A: The Chief Steward told me that 

management proposed to change the duty 

hours of several employees. 

Q: Was the Union notified concerning this 

change? 

A: No. 

Q: What did you do when the Chief Steward 

told you of this change? 

A: I made sure that the Chief Steward had 

confirmed this with some of the affected 

employees, and then submitted a request 

to bargain over procedures and 

appropriate arrangements for employees 

adversely affected by the proposed 

change. 

Q: I am now handing you what has been 

marked for identification as General 

Counsel Exhibit 2. (Hand witness copy of 

request to bargain.) Can you identify this 

document? 
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A: Yes, this is the request to bargain I 

submitted on June 14, 1996 concerning 

the change in duty hours. 

Q: Your Honor, the General Counsel moves 

for admission of General Counsel Exhibit 

2 into evidence. 

Respondent’s Counsel: No objection, your 

Honor. 

ALJ: General Counsel Exhibit 2 is received into 

evidence. 

iv. Tips on how to structure the “Q & A”:

(a) Factual testimony: 

The Trial Attorney prepares the witness to 

provide (and the questions are phrased to call 

for) factual responses. For example, the 

witness is asked to describe what was said (or 

what happened), rather than to describe his/her 

impression of a conversation. Testimony such 

as, “my supervisor told me that my life would be 

made miserable if I pursued the grievance” is 

preferable to, “my supervisor made sure I 

understood not to take my grievance any 

further.” The latter does not tell the ALJ what the 

supervisor told the witness. The ALJ wants to 

know factually what was said, the circumstances 

under which it was said, and how it was said. 

The ALJ is not typically interested in what 
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conclusions the witness drew from what was 

said. 

(b) Narrative vs. short and crisp “Q & 

A”: 

Depending on the evidence to be elicited from 

the witness and the ability of the witness, the 

Trial Attorney considers whether to ask the 

witness specific directed questions or to allow the

witness to testify in narrative form. 

 Narrative testimony may be improper since opposing counsel is 

unable to raise objections, so the Trial Attorney interjects 

questions at appropriate times.

Where credibility concerning a particular statement is at issue, 

testimony may be more persuasive when the witness describes 

the statement without “prompting” by the Trial Attorney. 

EXAMPLE

Q: What happened after you sat down in the Director’s

office? 

A: First, he told me that he had heard about my grievance 

and was not very happy with it. He also told me that my 

career would be jeopardized if I got a reputation in the 

agency as a troublemaker. When I told him I only 

wanted to have my supervisor treat me the way he 

treated everyone else, the Director told me that going to 

the Union was not the way to go about getting favorable 

treatment from my supervisor. 

 In this example the witness could have furnished the same 

factual testimony in response to three or four questions.
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Other situations where testimony may be more effective when provided in 

response to a single question (as opposed to several short questions) 

include background information. 

EXAMPLE

Facts concerning the time, date, place and participants at a pivotal 

meeting may be obtained in response to a single question (as opposed to 

4 separate questions): 

Q: When was the bargaining session held? 

A: The meeting was held at 10:00 a.m. on June 17, 1996 in 

the Director’s conference room. Management was 

represented by the Director, the Deputy Director, and 

the Chief of Personnel, while the Union was represented 

by me, the Chief Steward and the Vice President. 

At the same time, it may be advantageous at critical junctures to break the 

witness’s testimony down to a series of responses to specific questions. 

EXAMPLE

Where the Personnel Officer’s remarks in response to an information 

request contain many components, the following colloquy may assist the 

witness in covering all key points: 

Q: What did the Personnel Officer tell you regarding 

management providing the requested information? 

A: The Personnel Officer told me that the information was 

not retained on-site, but was contained in employees’ 

personnel records at Headquarters. 

Q: Did you make any comment concerning the location of 

these records? 
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A: I asked the Personnel Officer what it would take for him 

to obtain the records from Headquarters. 

Q: What did he say? 

A: He said it would just be a matter of making a phone call. 

Q: Did the Personnel Officer indicate any concerns about 

the Union’s need for the information? 

A: No, in fact, he told me that he understood why the Union 

needed the information and what the Union planned to 

use it for. 

Q: What about the Privacy Act -- did that come up in your 

conversation with the Personnel Officer? 

A: No, at no time did the agency ever raise Privacy Act 

concerns in response to our information request. 

Q: Then what was the basis for management’s denial of

your information request? 

A: It was never put in writing, but the Personnel Officer told 

me in that same conversation that it would take too

much time to pull together records covering a five-year 

period for the entire local facility? 

Q: How did you respond to this concern? 

A: I told him that the Union would be willing to accept the 

records limited to the Quality Section covering the

previous three-year period. 

Q: How did he respond to this narrowing of your original 

information request? 

A: He said that he would get back to me. 

Q: Did he ever get back to you after that? 

A: No, and when the Union didn’t hear from him, I called 

and left messages for the Personnel Officer to call me 

concerning our information request. When we didn’t
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hear from him for another two weeks, the Union filed this 

ULP charge. 

 The above testimony could be elicited by asking the witness 

simply to describe what was said during the conversation, with 

only an occasional prompting question. But where the Trial 

Attorney wishes to ensure coverage of specific points, directed 

questions may be more useful.

No single factor determines whether the Trial Attorney calls for narrative 

testimony or uses directed questions. The nature and importance of the 

testimony and the capabilities of the witness guide the Trial Attorney in 

balancing these two approaches. The Trial Attorney is prepared to use 

either approach, depending on how the witness performs while testifying 

at hearing. For example, if during pre-trial preparation, the witness has 

testified by narrative but does not do so at the hearing, the Trial Attorney 

must be prepared to ask more directed questions to cover all key points. 

The ability to go both ways is, of course, dependent on thorough pre-trial 

preparation of the witness. 

(c) Cover all key points: 

The Trial Attorney ensures that the witness 

provides testimony on all significant matters. 

The Trial Attorney should consider developing a 

list of key points to be covered by each witness 

to be checked prior to turning the witness over to 

Respondent’s counsel for cross-examination. 

g. Prepare for cross-examination: 

The Trial Attorney provides advice to the witness on 

his/her demeanor during cross-examination. The Trial 

Attorney explores the basis for any discrepancies 

between the witness’s anticipated testimony and any

affidavit furnished by the witness during investigation of 

the charge. The witness is asked to explain any 

discrepancies, and the Trial Attorney discusses 

possible ways to minimize the significance of any 
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discrepancies. Most importantly, the Trial Attorney 

presents the witness with questions which may be 

anticipated from opposing counsel during crossexamination. Through the process of trial preparation, 

the Trial Attorney identifies what parts of the GC’s case 

need to be strengthened. Questioning the witness in 

this manner provides the Trial Attorney with a view of 

how the witness may be expected to hold up during 

cross-examination. It also provides an opportunity to 

discuss with the witness, how best to ameliorate, the 

impact of damaging information. 

The Trial Attorney explains to a witness that there is 

nothing improper about working with the Trial Attorney 

prior to testifying. This prepares the witness for any 

cross-examination concerning rehearsed testimony or

collusion with the Trial Attorney. 

2. UNUSUAL OR SPECIAL CIRCUMSTANCES:

a. The reluctant and/or hostile witness:

When it becomes apparent that the witness is reluctant 

or hostile, the Trial Attorney first attempts to use all of 

his/her persuasive powers to overcome the witness’s

reluctance and/or hostility to the case. If this fails, 

weigh the importance of the witness’s testimony to 

successful litigation of the case. If the testimony is less 

than vital (e.g., is merely corroborative on minor points), 

contemplate releasing the witness from testifying. If the 

testimony is indispensable, first consider limiting the 

witness’s testimony to that which is essential to 

establishing the violation. If the witness is still reluctant 
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to cooperate, consider whether to threaten enforcement 

of a subpoena to compel the testimony. Where the 

witness does not wish to appear supportive of the 

Charging Party’s case, issuance of a subpoena may 

help overcome the witness’s reluctance to testify. This 

is risky because if the witness ignores the subpoena the 

GC must seek enforcement of the subpoena in a U.S. 

District Court. The more significant risk, however, is 

that threatened with enforcement of a subpoena, the

reluctant witness will become further alienated and

become less cooperative with the GC’s case. 

b. GC witnesses talking to Respondent’s counsel:

Respondent’s counsel may request to meet with a GC 

witness to prepare for hearing. Similarly, a GC witness 

may inquire about what to do if Respondent’s counsel 

requests such a meeting. Authority precedent generally 

holds that two types of ULPs may be based on agency

officials conducting interviews of bargaining unit 

employees in preparation for third-party proceedings 

(including ULP hearings): a violation of § 7116(a)(1) if 

the interview is not voluntary (i.e., is coercive in nature), 

or a formal discussion violation if all elements of a 

formal discussion are established and the union is not 

afforded the opportunity to be represented. 

As a practical matter, however, a witness is asked to let 

the Trial Attorney know if s/he plans to meet with 

Respondent’s counsel prior to the hearing. Advise 

Respondent’s counsel to comply with Authority 

precedent requiring that the interview be voluntary, be 

conducted in a non-coercive manner, and that the union 
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be afforded an opportunity to be represented at such a 

formal discussion. Provide the same advice to any 

bargaining unit employee witness who has been 

approached by an agency Respondent. 

The Trial Attorney has no right to insist on being 

present at the interview. The Trial Attorney likewise 

does not request the witness require his/her presence. 

However, the witness may ask for union representation 

at the meeting because it could be seen as a formal

discussion. 

Case citations concerning the formal 

discussion theory: 

Formal Discussion and Violation Found 

Department of the Air Force, Sacramento Air Logistics 

Center, McClellan Air Force Base, California, 29 FLRA 

No. 53, 29 FLRA 594, 597-07 (1987) (adoption of the

formal discussion theory in holding that the agency’s 

interview of a unit employee who was to be a union 

witness in preparation for an arbitration proceeding 

constituted a formal discussion); 

Department of Veterans Affairs Medical Center, 

Phoenix, Arizona, 52 FLRA No. 18, 52 FLRA 182, 203-

04 (1996) (ALJD) (extension of formal discussion theory 

to cover interview of unit employee witnesses in 

preparation for MSPB hearing); 

Veterans Administration Medical Center, Long Beach,

California, 41 FLRA No. 106, 41 FLRA 1370, 1379-80 
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(1991) (VAMC, Long Beach) (violation based on 

telephone interviews of unit employee in preparation for 

MSPB hearing) enforced sub nom. FLRA v. Department 

of Veterans Affairs Medical Center, Long Beach, 

California, 16 F.3d 1526 (9th Cir. 1994); and U.S. 

Department of the Air Force, Ogden Air Logistics 

Center, Hill Air Force Base, Utah, 36 FLRA No. 78, 36 

FLRA 748, 962-70 (1990) (Ogden ALC) (ALJD)

(violation based on agency requiring a pre-arbitration 

interview of unit employee designated to serve as union 

witness at arbitration). 

No Formal Discussion Found 

General Services Administration, 50 FLRA No. 61, 50 

FLRA 401, 406-07 (1995) (GSA) (citation to Department 

of the Air Force, F.E. Warren Air Force Base, 

Cheyenne, Wyoming, Local 2354, 31 FLRA No. 35, 31 

FLRA 541 (1988) (F.E. Warren) with approval, but 

finding no violation by agency conducting interviews of 

bargaining unit employees in preparation for MSPB 

hearing involving removal of a management official,

reasoning that MSPB hearing concerning removal of 

management official did not meet statutory definition of 

a "grievance" because it was not a "complaint" by an 

"employee," "labor organization" or "agency" within the 

meaning of § 7103(a)(9) of the Statute); 

Formal Discussion But No Violation Found 

F.E. Warren, 31 FLRA at 545-52 (1988) (extension of 

formal discussion theory to cover ULP hearings where 

the agency’s attorney interviewed a bargaining unit
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employee witness in preparation for a ULP hearing, but 

no ULP because Respondent fulfilled its obligations

concerning formal discussions); and United States 

Immigration and Naturalization Service, United States 

Border Patrol, El Paso, Texas, 47 FLRA No. 11, 47 

FLRA 170, 182-87 (1993) (MSPB deposition of 

complainant held to be formal discussion, but no 

violation under circumstances where purpose of 

§ 7114(a)(2)(A)--to provide union an opportunity to 

safeguard its institutional interests--was satisfied by 

union being permitted to be present at deposition).

 Case Citations Concerning the Coercive Interrogation 

 Theory in Violation of § 7116(a)(1) of the Statute. 

 

In Internal Revenue Service and Brookhaven Service 

Center, 9 FLRA No. 132, 9 FLRA 930, 933 (1982) 

(Brookhaven), the Authority placed certain limitations on 

an agency’s interview of bargaining unit employees in 

preparation for third-party proceedings by requiring that: 

(1) management must inform the 

employee who is to be questioned 

of the purpose of the questioning, 

assure the employee that no 

reprisal will take place if he or she 

refuses, and obtain the employee’s 

participation on a voluntary basis; 

(2) the questioning must occur in a 

context which is not coercive in 

nature; and 
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(3) the questions must not exceed 

the scope of the legitimate purpose 

of the inquiry or otherwise interfere 

with the employee’s statutory 

rights. 

In F.E. Warren, 31 FLRA at 549, the Authority declined 

to apply a per se rule requiring agency representatives 

to issue "Brookhaven" safeguards in all situations, 

instead determining whether the circumstances in which 

interviews of unit employees in preparation for thirdparty proceedings occur are coercive. The Authority 

found no 7116(a)(1) violation, noting that the employee 

was told the purpose of the interview, that the employee 

declined union representation, that the employee was 

not threatened with repercussions if he refused to 

cooperate, and that the agency’s questioning related 

strictly to the matters at issue at the ULP hearing. 

See also VAMC, Long Beach, 41 FLRA at 1382-85 

(agency’s telephone interview of a unit employee in

preparation for MSPB proceedings was not voluntary 

and was conducted under coercive conditions and 

therefore violated the Statute); 

Ogden ALC, 36 FLRA at 770-72 (Authority adopted the 

ALJ’s analysis similarly concluding that the agency

independently violated § 7116(a)(1) by the manner in 

which its agent questioned a known union arbitration 

witness); 

U.S. Department of the Air Force, Griffiss Air Force 

Base, Rome, New York, 38 FLRA No. 125, 38 FLRA 
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1552, 1558-60 (1991) (extension of precedent to find a 

violation based merely on an agency’s attempt to 

coerce participation in such interviews, even when the 

unit employee witness never answered any questions); 

and 

GSA, 50 FLRA at 406 (Authority reviewed previous 

decisions and clarified that Brookhaven warnings "apply 

only where a nexus is established between an agency’s 

interview of a bargaining unit employee in preparation 

for third-party proceedings and the employee’s § 7102

rights" but found no nexus here because there was no 

showing that the union was in any way involved in the 

MSPB proceeding (concerning removal of a 

management official) for which the interviews were 

conducted or that the MSPB proceeding otherwise 

implicated any rights protected by § 7102). 

 Because the Authority in GSA cited F.E. Warren with approval, 

there should be little doubt that unit employees’ participation as 

witnesses at ULP hearings satisfies the Authority’s requirement in 

GSA that a nexus be established between the pre-trial interview 

and the employee’s § 7102 rights. 

c. Supervisors and management officials as 

witnesses: 

Agents of agency Respondents (i.e., supervisors and/or 

management officials in "CA" cases) may be called as 

GC witnesses in certain circumstances. 

i. The Friendly Supervisor:
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When supervisors approach the Trial Attorney 

about providing testimony helpful to the GC’s 

case, take care to ensure that: 

(a) The supervisor is aware that s/he 

has no statutory protection against 

agency retaliation for providing 

testimony; 

(b) The supervisor’s participation in 

pre-trial preparation is voluntary; 

and 

(c) The supervisor is informed that 

his/her participation in pre-trial 

preparation and in testifying at 

hearing must be on his/her own 

time (i.e., official time will not be 

authorized). 

Pre-trial preparation of the friendly supervisor 

may therefore be limited. To the extent pre-trial 

preparation of a friendly supervisor can be 

arranged, however, follow the guidance outlined 

above. OGC policy generally does not require 

the Trial Attorney to inform an agency 

Respondent’s counsel that its supervisor or 

management official has approached the Trial 

Attorney about testifying at hearing or to 

advise counsel of efforts to pre-try a friendly 

supervisor. Nor must Respondent’s counsel 

be included in any pre-trial preparation of a 

friendly supervisor.
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ii. Former Supervisors and Retired 

Supervisors: 

Trial Attorneys may engage in pre-trial 

preparation of current bargaining unit employees, 

who were supervisors at the time that the events 

at issue in the hearing occurred, to the same 

extent and under the same conditions as 

described above for supervisors and 

management officials in general. However, 

retired supervisors, who were supervisors at the 

time of the event, may be contacted without 

notifying Respondent’s counsel.” 

iii. The Hostile Supervisor:

There may also be occasions when it is 

necessary to obtain a supervisor’s testimony to 

establish one or more elements of the GC’s 

prima facie case. When this need arises, 

request that a subpoena be issued to compel the 

supervisor’s testimony. Any pre-trial preparation 

of a hostile supervisor must be coordinated with 

Respondent’s counsel and will likely be refused. 

There is no obligation on the part of 

Respondent’s counsel to agree to the interview. 

iv. Supervisors who were bargaining unit 

employees at the time of the events 

underlying the complaint:
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When testimony is required from a newlydesignated supervisor, but where the testimony 

relates solely to events which occurred when the 

supervisor was a bargaining unit employee, 

schedule pre-trial preparation as though the 

witness were a Charging Party witness, but with 

the following variation: A subpoena is issued to 

the witness, and the Trial Attorney arranges for 

pre-trial preparation by assuring Respondent’s 

counsel that matters discussed with the witness 

will relate solely to events that transpired when 

the witness was a member of the bargaining unit. 

d. Depositions in lieu of testimony at hearing:

i. Regulatory authority: 

Section 2423.24(a) provides that an ALJ “shall 

regulate the course . . . of prehearing matters . . . 

.” 

Section 2423.34(b) provides that after issuing a 

recommended decision and order the ALJ 

transmits the decision and record, which includes 

depositions, if any, to the Authority. 

ii. Testimony at hearing is preferred:

The Trial Attorney contemplates taking a 

deposition in lieu of testimony at hearing only if 

necessary. Testimony at hearing is always 

preferable because it affords the ALJ a better 

opportunity to assess the witness’s demeanor 

and credibility. 
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iii. Circumstances in which a deposition is 

considered appropriate: 

(a) Where deposition is the only way to 

arrange for timely testimony from a 

critical witness who is unavailable 

to testify at hearing if the trial 

cannot be rescheduled to 

accommodate the witness’s 

appearance at the hearing. 

(b) Where there may be questions 

concerning enforcement of a 

subpoena but where the witness is 

willing to provide testimony by 

deposition, a deposition may be the 

best means by which to obtain 

necessary testimony. 

See, e.g., Bureau of Indian Affairs, Isleta 

Elementary School, Pueblo of Isleta, New 

Mexico and Indian Educators Federation, 

54 FLRA No. 128, 54 FLRA 1428, 1452 

n.4 (1998) (ALJD) (critical testimony 

obtained from the Governor of the Pueblo 

of Isleta by means of a pre-hearing 

deposition because it was questionable 

whether the FLRA had jurisdiction to 

compel the Governor’s testimony by 

means of a subpoena). 

(c) Where, upon completion of the 

hearing, the record is left open for 
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the receipt of additional evidence 

and testimony on matters that were 

unknown or unavailable to the 

parties at hearing. 

iv. Processing requirements: 

 

(a) Pre-hearing depositions: 

File a pre-hearing motion pursuant to § 

2423.21(b). However, if the witness and 

the parties agree concerning the 

scheduling of a pre-hearing deposition, it 

is preferable to make arrangements for 

the deposition, and then to submit a 

transcript of the deposition testimony into 

evidence as a Joint Exhibit. 

(b) Post-hearing depositions:

Are within the ALJ’s discretion. 

See also Part 1, Chapter O concerning 

depositions. 

e. Disclosure of statements and information 

obtained from the Respondent:

The Trial Attorney may not share with GC witnesses 

during pre-trial any materials obtained from the 

Respondent during the investigation of the charge. See

§ 2423.8(d). Although the Regulations do not address 

what sanctions, if any, may be applied to enforce §
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2423.8(d), improper disclosure can only be detrimental 

to the GC’s case. At least two Authority decisions have 

addressed situations where the Trial Attorney was 

found in violation of § 2423.8(d). Both generally left the 

appropriate remedy for such a regulatory violation to the 

discretion of the ALJ. 

Case citations where Respondent’s Motion to Strike 

Testimony based on improper disclosure is denied 

but ALJ may consider such improper disclosure in 

determining the credibility of GC witnesses. 

Respondent’s Statements/Affidavits 

Internal Revenue Service, Boston District Office, 

Boston, Massachusetts and Internal Revenue Service,

Andover Service Center, Andover, Massachusetts, 5 

FLRA No. 96, 5 FLRA 700, 701 n.2 (1981) (Authority 

rejected Respondent’s contention that GC’s witness’s 

testimony be stricken and that the complaint be 

dismissed because the GC disclosed to its witness the 

content of statements furnished by Respondent’s 

witnesses during the investigation of the charges but 

considered such impropriety in determining credibility). 

Respondent’s Documentary Evidence

Internal Revenue Service and Internal Revenue 

Service, Brooklyn District, 23 FLRA No. 9, 23 FLRA 63, 

80-81 n.4 (1986) (ALJD) (to the same effect). 

Section 2423.8(d) specifically applies to the disclosure 

of the "identity of individuals and the substance of the 
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statements and information they submit or which is 

obtained during the investigation" and therefore 

appears not to govern the disclosure of documents 

obtained from the Respondent by subpoena. The Trial 

Attorney nevertheless is careful in handling such 

documents, particularly if the ALJ has issued a 

protective order covering such documents. 

f. Official Time for GC Witnesses: 

i. Statutory Provision: 

Section 7131(c) of the Statute provides that "the 

Authority shall determine whether any employee 

participating for, or on behalf of, a labor 

organization in any phase of proceedings before 

the Authority shall be authorized official time for

such purpose during the time the employee 

otherwise would be in a duty status." 

ii. Regulatory Provision: 

Section 2429.13 more broadly provides for 

official time, which includes travel time, as occurs 

during the employee’s work hours and when the 

employee would otherwise be in a work or paid 

leave status, for any employee participating in 

any phase of any proceeding before the 

Authority, including unfair labor practice 

hearings. 

Case citations 
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Official time was authorized

Department of the Air Force, Sacramento Air Logistics 

Center, McClellan Air Force Base, California, 26 FLRA 

No. 83, 26 FLRA 674, 677-78 (1987) (testimony at 

hearing), rev’d on other grounds, sub nom. Department 

of the Air Force, Sacramento Air Logistics Center, 

McClellan Air Force Base, California v. FLRA, 877 F.2d 

1036 (D.C. Cir. 1989) (McClellan AFB). 

Department of the Treasury, Bureau of Alcohol, 

Tobacco and Firearms and National Treasury 

Employees Union, 10 FLRA No. 3, 10 FLRA 10, 11-12 

(1982) (pre-trial preparation); Department of the 

Treasury, Internal Revenue Service and Department of 

the Treasury, Internal Revenue Service, Jacksonville 

District, 15 FLRA No. 108, 15 FLRA 506, 508-09 (1984) 

(to the same effect). 

"CO" case where official time was not authorized

7th Infantry Division (Light), Fort Ord, California, 

47 FLRA No. 82, 47 FLRA 864, 868-71 (1993) (Fort 

Ord). 

 The Trial Attorney may request agency management to release 

employee-witnesses to testify in "CO" cases against unions. As 

a practical matter, most agencies will not oppose the release of 

such employee-witnesses on some form of administrative time. 

g. Witness Fees--Travel and Per Diem Expenses 

for Non-Federal Employee Witnesses: 
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i. Statutory provision: 

Section 7132(c) provides that witnesses "shall be 

paid the same fee and mileage allowances which 

are paid subpoenaed witnesses in the courts of 

the United States." 

ii. Regulatory provision: 

Section 2429.14 provides that witness fees, as 

well as transportation and per diem expenses 

“shall be paid by the party that calls the witness 

to testify” except that Federal employees are not 

entitled to receive witness fees. 

See Federal Aviation Administration, Northwest 

Mountain Region, Renton, Washington, 51 FLRA 

No. 81, 51 FLRA 986, 989-92 (1996) (Authority 

adopted D.C. Circuit’s decision in McClellan AFB

holding that agencies are not required, under 

§ 7131(c) of the Statute to pay travel and per 

diem to employees appearing to testify at ULP 

hearings and rejected § 7132(c) of the Statute as 

an alternative basis for requiring agency 

Respondents to pay such travel and per diem 

expenses). 

iii. Witnesses who are entitled to witness 

fees: 
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Non-federal employees who appear at the 

insistence of the Trial Attorney, i.e., under 

subpoena, may submit a claim for 

reimbursement, Standard Form 1157, Claim for 

Fees and Mileage of Witness. Two copies of 

Form 1157 are given to the witness when the 

subpoena is served. The witness is instructed to 

complete, sign and return the claim to the Region 

that issued the subpoena. Upon the RD’s 

approval, both copies of the form are forwarded 

to the OGC. 

iv. Regional Authorization of travel and per 

diem:

The Trial Attorney checks with the RA well in 

advance of the trial if s/he needs a witness to 

testify at the trial and ensures that proper 

procedures are followed once s/he receives 

authorization. 

 Part 1, Chapter O concerning Depositions.

Preparation for Hearing 

Subpoenas

Office of the General Counsel 

Litigation Manual

K. SUBPOENAS

OVERVIEW:

Section 7132 of the Statute provides the statutory basis for 

issuance of subpoenas duces tecum and ad testificandum

(requiring the production of documents or other evidence or 

attendance to personally testify). Section 2423.28 implements the 

statutory provisions governing subpoenas. 

OBJECTIVE:

To provide guidance concerning the circumstances that do and do 

not warrant a request for a subpoena, the processing requirements 

for subpoena requests, and petition to revoke a subpoena.

 

1. CIRCUMSTANCES WHEN A SUBPOENA IS REQUESTED:

a. Generally, why a subpoena is needed: 

A subpoena is issued to mandate the attendance of a

witness or the production of a document at a hearing. 

A subpoena is not needed when the parties agree that 

the appearance of witnesses or the production of 

documents is necessary and there is no concern about 

whether or not the witnesses or document will appear at 

the hearing. 

§ 2423.28(a). 

b. In CO cases, subpoenas are usually needed to 

ensure the release of witnesses: 
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It would be unusual for a Charging Party in a CO case 

to participate for, or on behalf of a labor organization 

and therefore to be authorized official time to appear as 

a witness. See § 7131(c) of the Statute. In this 

circumstance, a subpoena is issued to ensure the 

witness’s presence at the hearing but the Trial Attorney 

must evaluate the cost versus the benefit of employing 

this litigation strategy. 

See 7th Infantry Division (Light), Fort Ord, California, 47 

FLRA No. 82, 47 FLRA 864, 868-71 (1993). 

c. A subpoena also can be used to establish the 

nonexistence of critical documents. 

d. A subpoena is necessary to ensure the payment 

of travel and per diem expenses for GC 

witnesses.

e. A subpoena for documents must be issued to the 

person who can authenticate documents for 

admission into evidence.

f. But not: Intra-management guidance, advice, 

counsel, or training within an agency or between 

an agency and OPM which may be precluded 

from disclosure by subpoena. 

§ 7132 of the Statute.

 When in doubt, discuss litigation strategy with RA or Litigation 

Specialist.
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2. OTHER CONSIDERATION: MILEAGE EXPENSES AND WITNESS FEES:

Section 7132(c) provides only for the payment of mileage expenses. 

Mileage expenses do not encompass travel and per diem expenses 

incurred by witnesses. See Federal Aviation Administration, Northwest 

Mountain Region, Renton, Washington, 51 FLRA No. 81, 51 FLRA 986, 

990-91 (1996).

See Part 1, Chapter J. subsections 2.f. and g. concerning Official Time 

and Witness Fees.

 

3. PROCESSING REQUIREMENTS:

a. Subpoena requests to OALJ: 

· Written requests are filed with the OALJ 

not less than 10 days prior to the opening 

of hearing or with the ALJ during the 

hearing. 

· “Requests for subpoenas made less than 

10 days prior to the hearing shall be 

granted on sufficient explanation of why 

the request was not timely filed.” 

§ 2423.28(b). 

 Unless otherwise directed by the RA or RD, when the RD issues 

a complaint and notice of hearing, the Region sends a standard 

form, signed by the RA requesting that the OALJ supply seven 

subpoenas duces tecum and seven subpoenas ad testificandum. 

 For an example of this form, see ATTACHMENT 1K. 

b. OALJ procedures:
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· All requests for subpoenas are honored, if 

timely requested. See ATTACHMENT 1K

for an example of a Notice that the OALJ 

will issue sending the subpoenas to the 

Region that were requested. 

· Requests may be made ex parte. 

c. Responsibilities of requester of subpoena: 

i. Completion of specific information in the 

subpoena. 

ii. Requirements of service of the subpoena: 

· By a person who is at least 18 

years old; 

· Who is not a party to the 

proceeding (we interpret this 

provision to permit a RO employee 

who is not involved in the case to 

serve subpoenas); 

· Certification by person who served 

the subpoena that s/he did so: 

· By delivering it to the witness 

in person; 
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· By registered or certified 

mail; or 

· By delivering the subpoena 

to a responsible person 

(named in the document 

certifying the delivery) at the 

residence or place of 

business (as appropriate) of 

the person for whom the 

subpoena was intended.

If this method of service is 

chosen, the subpoena shall 

show on its face the name 

and address of the party on 

whose behalf the subpoena 

was issued. 

 Although rarely an issue at hearing, remember to include 

subpoena forms (those issued by the ALJ pursuant to the Trial 

Attorney’s request or blank forms) in your trial briefcase in case it 

is necessary to serve a subpoena at that time. After the hearing, 

destroy any unused subpoena forms.

d. Content of subpoena: 

Name and identify the witnesses or documents sought

and state the reasons therefore. In general, a 

subpoena duces tecum must be reasonable and seek 

documents which are material and relevant to the 
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matters at issue in the case. Otherwise, the subpoena 

may be subject to revocation. 

e. Identifying the person(s) to whom subpoena is 

directed: 

i. Subpoena testificandum - name and 

address of the witness sought. 

ii. Subpoena duces tecum - name and 

address of the custodian of the records 

sought. When in doubt as to the identity 

of the proper official, name the 

Respondent's chief official. 

Unless the Trial Attorney can 

independently authenticate documents 

subpoenaed or if the Respondent will 

stipulate to authenticity, the Trial Attorney 

must require the custodian to appear at 

the hearing. 

f. Examples of ways to identify the documents 

sought: 

i. All documents, papers, records or other 

data, of whatever name, nature or 

description which concern in any way the 

proposal dated May 1, 1996 to suspend 

John E. Smith for three (3) days, and the 

decision dated June 30, 1996 to suspend 

John E. Smith for three (3) days. 
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ii. All documents of whatever name, nature 

or description which concern the decision 

to contract out the work of the switchboard 

operation at the Respondent’s facility in 

Boston, Massachusetts. Such documents 

shall include, without limitation, all 

documents showing any 

recommendations, deliberations, studies, 

discussions, considerations and requests 

for permission, which preceded the 

Respondent’s decision to contract out its 

telephone switchboard operation. 

 See ATTACHMENT 1K for an example of a completed subpoena 

form. 

Discuss with the RA when to serve the subpoena. Unless the RA 

determines that different litigation strategy should be employed, 

all subpoenas are served at least 11 days before the pre-hearing 

conference is scheduled (allows for the expiration of the five-day 

period within which a petition to revoke may be filed if filing is by 

mail). 

4. PETITION TO REVOKE AND RULING ON PETITION TO REVOKE:

a. Filing:

Any person served with a subpoena who does not 

intend to comply must file a petition to revoke the

subpoena with the OALJ within five days after the date 

of service of the subpoena. If a petition to revoke is 

filed during the hearing, it is filed with the presiding ALJ. 
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§ 2423.28(e)(1). 

b. Service:

A copy of any petition to revoke a subpoena shall be 

served on the party on whose behalf the subpoena was 

issued. 

§ 2423.28(e)(1). 

c. Ruling on petition to revoke:

Grounds for revocation under § 2423.28(e)(2): 

The ALJ “shall revoke the subpoena if the person or

evidence, the production of which is required, is not 

material and relevant to the matters under investigation 

or in question in the proceedings, or the subpoena does 

not describe with sufficient particularity the evidence the 

production of which is required, or if for any other 

reason in law the subpoena is invalid.” 

 The following is an example of “any other reason in law”: 

The Trial Attorney files a petition to revoke whenever a member 

of the RO staff is served with a subpoena ad testificandum or 

subpoena duces tecum relying on three grounds: (1) there is a 

limited evidentiary privilege which protects the informal 

investigational and trial-preparatory processes of regulatory 

agencies such as the FLRA. See NLRB v. Silver Spur Casino, 

623 F.2d 571, 580 (9th Cir. 1980); Stephens Produce Co. v. 

NLRB, 515 F.2d 1373, 1376 (8th Cir. 1975); Frank Invaldi, 

305 NLRB 493 (1991); G.W. Galloway Co., 281 NLRB 262 
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(1986); (2) the GC has a policy stated in § 2423.8(d) concerning 

the protection of the identity of individuals and the substance of 

their statements obtained during the course of the investigation 

as a means of assuring that all relevant information is obtained; 

and (3) pursuant to § 2411.11 which concerns compliance with 

subpoenas, the GC’s written consent is required before “files, 

documents, reports, memoranda, or records” and/or testimony 

are produced pursuant to subpoena. 

See ATTACHMENT 1K for 2 examples of a petition to revoke. 

d. Authority case law:

Internal Revenue Service, Austin District Office, 

Austin, Texas, 51 FLRA No. 95, 51 FLRA 1166, 

1181 (1996) (Authority found no merit to 

exception to ALJ’s issuance of subpoena where 

Respondent did not petition to revoke subpoena 

and there was no evidence that Respondent was 

prevented from doing so if it believed that the 

subpoena was improperly issued, and in fact 

there was no evidence that the subpoena was 

improperly issued). 

5. FAILURE TO COMPLY WITH SUBPOENA:

See Part 2, Chapter J. 

 Part 1, Chapter J subsections 2.a. and c. concerning Subpoenas and 

the Reluctant/Hostile Witness; 

Part 1, Chapter J subsections 2.f. and g. concerning Official Time and 

Witness Fees; and 

Part 2, Chapter J concerning Compliance with Subpoena and 

Sanctions. 
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RESERVED
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Motions 

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L. MOTIONS

OVERVIEW:

The requirements of motions procedure are governed by § 2423.21

and the filing and service requirements are governed by Part 2429. 

OBJECTIVE:

To provide guidance concerning the different types of motions that 

are filed during the course of ULP litigation and the corresponding 

procedural requirements for filing such motions.

1. PROCESSING REQUIREMENTS:

a. When and with whom to file a motion:

i. Pre-hearing motions are filed: 

· In writing, except for motions made 

at a pre-hearing conference; 

· With the ALJ; and 

· At least 10 days before the hearing, 

except for motions made at a prehearing conference. Cover a prehearing motion that is filed less 

than 10 days before the hearing 

with another motion requesting 

ALJ’s permission to file a motion 
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that is not filed at least 10 days 

before the hearing. 

§ 2423.21(a), (b). 

ii. Hearing and post-hearing motions are 

filed: 

· Orally (hearing) or in writing (posthearing); 

· With the ALJ; and 

· In the case of a post-hearing motion, 

within 10 days after the date the hearing 

closes, or if a motion to correct the 

transcript, within 10 days after the receipt 

of the transcript. 

iii. § 2423.21(a), (b). 

Post-transmission (after case has been 

transmitted to the Authority) motions are filed: 

· In writing; and 

· With the Authority. 

§ 2423.21(a), (c). 
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b. Response to Motions: 

Section 2423.21(b), and (c) require parties who desire 

to respond to motions to do so within five days of 

service of motion (plus five days, pursuant to § 2429.22, 

if service of motion was made by mail). 

 There is no requirement that a party file a response. If the GC’s 

position has been satisfactorily set forth by the party filing the 

motion, a response may not be necessary. In most instances, 

however, a response is filed. Discuss strategy with RA.

c. Number of copies: 

An original and four copies, except for one legible copy 

that meets the facsimile filing requirement. 

§§ 2429.24 and 2429.25. 

d. Requirement for procedural motions: 

All procedural motions, including motions for extension 

of time, postponement of a hearing, or any other 

procedural ruling, shall include the position of the other 

parties on the motion. § 2423.21(a). 

Extensions of time to file documents with the Authority will be granted only 

if a party specifically requests such extension, i.e., the GC, as a nonrequesting party, may not rely on extension of time granted to the 
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Charging Party or other allied party. Internal Revenue Service, 

Philadelphia Service Center, 54 FLRA No. 72, 54 FLRA 674, 681 (1998). 

2. COMMON TYPES OF MOTIONS:

a. Motion to Postpone a Hearing: 

i. Is filed immediately upon the discovery of 

the circumstances warranting the 

postponement.

ii. Criteria for requesting or agreeing to a 

postponement:

The GC is expected to be prepared to go to trial 

on the date scheduled. However, at times, the 

following factors arise, which individually or 

cumulatively may support the GC’s request for a 

postponement: 

· An essential witness becomes 

unavailable; 

· A settlement appears likely and/or time is 

needed to consummate a settlement that 

has been agreed to in principle; 

· A significant savings of the government’s 

resources could result by consolidating 

the case with other cases involving the 

same parties; and 
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· Bundling the case(s) for trial with other 

cases in the same area will result in 

considerable savings of governmental 

resources. 

In turn, the GC does not oppose a request for a 

postponement when: 

· A delay will not affect the GC’s ability to 

present a strong case; 

· A delay will not affect the GC’s ability to 

receive an appropriate remedy; 

· The case can be rescheduled within a 

reasonable period of time; 

· There have been no prior postponements; 

· The relationship of the parties will not be 

adversely impacted; and

· The Charging Party and/or the 

Respondent is not opposed to a 

postponement. 

See also Part 2, Chapter B concerning 

Postponement or Continuance of Hearing. 
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b. Motion for a Bill of Particulars and/or a More 

Definite Statement: 

Typically this motion is filed with an ALJ after the 

issuance of a complaint but before an answer is due. 

The Respondent asserts that it needs additional facts to 

enable it to file an answer to the complaint and/or to 

prepare its defense for trial. 

i. First step: 

Determine whether the underlying allegation in 

the complaint complies with § 2423.20(a) which 

states that a complaint must set forth the nature 

of the charge, the basis for jurisdiction, the facts 

alleged to constitute a ULP, the statutory and 

regulatory sections involved, and notice of the 

date, time, and place of the hearing before an 

ALJ. 

ii. When the complaint does not comply with 

the requirements: 

File with the ALJ a Response to Motion for Bill of 

Particulars and Motion to Amend Complaint. Set 

forth the additional facts or assertions that form 

the basis of the motion so that Respondent has 

the facts it needs to file an answer to the 
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complaint. This may be accomplished in one 

document entitled “Motion to Amend Complaint 

and Response to Motion for Bill of Particulars.” 

iii. When the complaint meets the 

requirements:

File a response to the Motion for Bill of 

Particulars in opposition to the motion. If the 

response asks for facts that are unknown, file a 

response to that effect.

 Sometimes the name of the person responsible for a particular 

action, the precise date, time of an event, or the exact location is 

not known. When this is so, the response may include a 

statement that the facts being sought are unknown. In other 

situations, the facts that the GC is asked to divulge are not only 

unknown but are within the particular knowledge of the 

Respondent. The GC’s response covers this matter. 

c. Motion to Amend a Complaint: 

i. If an allegation in a complaint is not fully 

and fairly litigated, the FLRA will not 

consider the allegation. 

Bureau of Prisons, Office of Internal Affairs, 

Washington, D.C. and Phoenix, Arizona and 

Federal Correctional Institution, El Reno, 
Preparation for Hearing 

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Litigation Manual

Oklahoma, 52 FLRA No. 43, 52 FLRA 421, 428-

32 (1996). 

ii. The FLRA may review a matter sua 

sponte and dismiss a complaint because 

an allegation was not properly plead. 

American Federation of Government Employees, 

Local 2501, Memphis, Tennessee, 51 FLRA No. 

139, 51 FLRA 1657, 1660-64 (1996) (Local 

2501). 

See also discussion above at Part 1, Chapter C. 

subsection 1.b.iii concerning amended 

complaint. 

iii. Trial Attorney considers the following 

preliminary matters: 

(a) Deciding whether to file motion to 

amend the complaint after answer 

is filed: 

Whether the motion to amend seeks to 

make minor changes or make significant 

substantive changes, the Trial Attorney 

discusses the need to amend the 

complaint with the RD or RA before any 

action is taken. 
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(b) After a decision is made to file a 

motion to amend the complaint: 

Procedural problems are avoided if all the 

parties to the proceeding are immediately 

informed of the GC’s intention to move to 

amend the complaint and the position of 

the parties is solicited. 

See also Part 1, Chapter C concerning Case File 

Analysis. 

iv. Due process arguments raised by 

Respondent: 

In opposition to a motion to amend a complaint, 

a Respondent most frequently relies on a claim 

of “surprise.” Motions to amend complaints are 

often essential and, at times, case determinative. 

 A Respondent asserts that: 

(a) It lacks enough time to properly 

respond to the amended complaint 

or to prepare a defense to a new 

allegation; or 

(b) It has not been afforded an 

opportunity to respond to the 
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allegation during the investigatory 

stage in accordance with § 2423.8. 

Suggested responses: 

· “The facts were unknown until such 

time as the motion to amend was 

drafted”; 

· The lack of complexity of the 

allegation and the person accused 

of engaging in the conduct is 

present in the courtroom (or readily 

available) so that there is ample 

time for Respondent’s 

representative to consult with that 

individual and respond to the 

complaint; 

· The addition of this allegation will 

not result in prolonging this 

proceeding. But, if the Respondent 

feels it needs additional time to 

prepare its defense the Trial 

Attorney does not oppose a motion 

to continue or postpone the hearing 

to a date certain if necessary; and 
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Litigation Manual

· The amendment alleges an (or 

another) instance of (a)(1) conduct 

and the complaint alleges a 

discriminatory reassignment of an 

employee. In this instance, the 

statement will be offered as 

evidence of animus and will be 

placed in evidence whether the 

amendment is granted or not. 

Therefore, the hearing will not be 

prolonged by granting the GC’s 

motion to amend the complaint 

because the Respondent has to 

respond to the statement whether 

or not the amendment is allowed. 

 ALJs are reluctant to grant a motion to amend where a 

Respondent claims prejudice, whether real or potential. On the 

other hand, an ALJ is expected to act in the interest of justice 

where the government’s resources are at stake. 

d. Motion to Dismiss: 

i. Whether to treat as a motion to dismiss:

(a) Respondent’s answer concludes 

with a request for summary 

dismissal is not treated as a 

motion: 
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Motions 

Office of the General Counsel 

Litigation Manual

A Respondent’s answer that summarily 

moves for dismissal of the complaint is not 

treated as a motion to dismiss. The 

request for summary dismissal is based 

on the denials in the Respondent’s 

answer. It is not necessary to treat the 

answer as a motion. 

(b) Motion to dismiss set forth in a 

separate document with argument 

and case citations: 

Treat the motion in the same manner as 

any other motion--refer it to the OALJ. 

ii. At the conclusion of GC’s case-in-chief, 

the evidence must be viewed in the light 

most favorable to the GC:

At times, a Respondent will move to dismiss a 

complaint at the conclusion of the GC’s case-inchief. In responding, it is important to articulate 

to the ALJ that before such a motion can be 

granted all of the evidence must be viewed in the 

light most favorable to the GC. 

iii. After the hearing is closed, a motion to 

dismiss will be granted by the FLRA if a 

matter becomes moot: 
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Compare Federal Aviation Administration, 55 

FLRA No. 44, 55 FLRA 254, 261 (1999) (case is 

not moot even though particular remedy may no 

longer be appropriate as long as a cease and 

desist order and a posting of a notice remain 

viable remedies) with (Defense Mapping Agency, 

Hydrographic/Topographic Center, Louisville 

Office, Louisville, Kentucky, 51 FLRA No. 148, 

51 FLRA 1751, 1754-58 (1996) (Respondent’s 

motion to dismiss the complaint granted because 

the alleged violation was no longer capable of 

being remedied where the Respondent no longer 

existed and individual rights were not involved). 

e. Motion for pre-hearing discovery: 

i. Section 2423.23 governs pre-hearing 

disclosure:

Section 2423.23(a), and (b), which provide for 

the exchange of proposed witness lists, including 

a brief synopsis of testimony, and copies of 

documents intended to be offered into evidence 

at the hearing, at least 14 days before the 

hearing at a pre-hearing conference, do not 

violate “the principles of due process.” See

Bureau of Indian Affairs, Phoenix Area Office, 

Phoenix, Arizona, 32 FLRA No. 130, 32 FLRA 
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Litigation Manual

903, 907 (1988) (referring to predecessor 

provision § 2423.14(a) on disclosure of witness 

lists and documents which is not violative of due 

process). 

ii. No other regulatory provisions exist for 

pre-hearing discovery: 

Accordingly, it is appropriate for the GC to 

oppose any motion for discovery filed. 

iii. Depositions and responses to 

interrogatories:

An ALJ may order the taking of depositions and 

order responses to interrogatories. Such 

authority is restricted by GC’s policy of protecting 

the personal privacy and confidentiality of 

sources of information set forth at § 2423.8(d). 

f. Motion to Sever Case or Withdraw Complaint:

i. Motion to sever: 

(a) When is it appropriate to file? 

When one or more cases settle and time 

does not permit the issuance of an 

amended complaint. 
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(b) When a motion to sever is filed, 

remember to amend the case 

caption if that is impacted. 

(c) A motion to sever any case or 

cases that have settled is filed with 

the presiding ALJ at the start of the 

hearing so that the RD can process 

the settlement. 

(d) Presiding ALJ has authority to rule 

on motion prior to issuance of 

decision. 

 

ii. Motion to withdraw complaint and remand 

the matter to the RD: 

(a) When is it appropriate to file? 

In those situations where all the cases set 

for hearing settle after the hearing is 

opened. 

(b) The presiding ALJ has the authority 

to rule on the motion to withdraw a 

complaint. 

§ 2423.31(e)(1). See also Department of 

Health and Human Services, Social 
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Motions 

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Security Administration, Social Security 

Administration Field Operations, New York 

Region, 32 FLRA No. 6, 32 FLRA 56 

(1988). 

g. Motion to Intervene--Who files it and how is it 

processed: 

i. Who files it ? 

An agency or labor organization that is not a 

Charging or Charged party but has a direct 

interest in a ULP proceeding because of the 

consequences of the requested remedy. In rare 

instances, OPM may file a motion to intervene. 

ii. How is it processed? 

A motion to intervene is processed in the same 

manner as any other motion, see § 2423.22, and 

the GC’s position is dictated by the nature of the 

issues involved. 

iii. Extent of intervenor participation: 

Intervenors may only participate on the issues 

that the ALJ has determined to affect them. 

iv. Rulings: 
Preparation for Hearing 

Motions 

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Motions to intervene are granted upon a showing 

that the outcome is likely to directly affect the 

movant’s rights or duties. 

v. Appeal rights of denial of motion to 

intervene: 

Denial of a motion to intervene may be appealed 

pursuant to § 2423.21(d) concerning 

interlocutory appeals. 

h. Motions for an interlocutory appeal:

i. Filing requirements: 

Interlocutory appeal motions are filed with the 

ALJ within five days of the contested ruling and 

shall state why interlocutory review is appropriate

and why the Authority should modify or reverse 

the contested ruling. § 2423.31(c). Always 

request a stay of proceedings when filing a 

motion for an interlocutory appeal. 

See U.S. Department of Veterans Affairs, 

Veterans Administration Medical Center, San 

Francisco, California, 40 FLRA No. 30, 40 FLRA 

290 (1991) (before the promulgation of § 

2423.31(c), Authority granted a joint motion for 
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Motions 

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Litigation Manual

an interlocutory appeal in a Title 38 case where 

ALJ denied Respondent’s Motion for Summary 

Judgment and Authority granted the Motion). 

ii. Rulings: 

The ALJ shall grant the motion and certify the 

contested ruling to the Authority if: 

· The question of law or policy is 

important and about which there is 

substantial ground for a difference 

of opinion; and 

· Immediate review will materially 

advance completion of the 

proceeding, or denial of review will 

cause undue harm to a party or the 

public. 

If review is granted, the Trial Attorney requests 

that the ALJ stay the hearing during the 

pendency of the appeal. If review is denied, 

exceptions may be taken in accordance with § 

2423.40 after issuance of the recommended 

decision and order. 

See Part 2, Chapter I concerning Interlocutory 

Appeals. 
Preparation for Hearing 

Motions 

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Litigation Manual

 In any case where OPM seeks to intervene in a ULP proceeding, 

the OGC is notified before taking a position. 

 Part 1, Chapter C concerning Analysis of the Case File; 

Part 1, Chapter F concerning Motions for Summary Judgment; 

Part 1, Chapter N concerning Preparing Formal Documents and Prehearing Disclosure; 

Part 2, Chapter B concerning Postponement or Continuance of 

Hearing; 

Part 2, Chapter H concerning Motions made at the Hearing; and 

Part 2, Chapter I concerning Interlocutory Appeals. 
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Motions 

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RESERVED
Preparation for Hearing 

Trial Notebook

Office of the General Counsel 

Litigation Manual 1−0 

M. TRIAL NOTEBOOK

OVERVIEW:

A trial notebook is a tool for the Trial Attorney’s use in preparing 

and presenting the GC case before an ALJ. Although there are 

alternative ways to prepare a trial notebook, use of a model 

notebook is helpful both to a new attorney who has minimal trial 

experience and the seasoned advocate who might use it as a 

checklist to insure that all aspects of the litigation are covered. To 

that end, the trial notebook (ATTACHMENT 1M) is a composite of 

areas that every Trial Attorney addresses in preparing for litigation 

on behalf of the OGC. The Index provides an outline of the 

contents of the book. The remaining substantive provisions offer a 

guide on how to review and address the issues that will be 

presented at trial. A significant “stand alone” provision of the 

notebook is the Trial Preparation Checklist which gives each Trial 

Attorney a snapshot of a particular point in time of the trial 

preparation process. A supervisor and/or mentor also uses this 

checklist as a tool to review the Trial Attorney’s preparation for trial. 

 Although each Trial Attorney establishes his/her own style for a trial 

notebook, the model notebook is your guide. 
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RESERVED
Preparation for Hearing

Preparing Formal Documents and 

Pre-hearing Disclosure

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N. PREPARING FORMAL DOCUMENTS AND 

PRE-HEARING DISCLOSURE

OVERVIEW: 

Section 2423.23, “Prehearing disclosure”, mandates that parties 

exchange proposed witness lists, copies of documents intended to 

be offered into evidence at the hearing, and a brief statement of the 

theory of the case at least 14 days prior to the hearing. The 

disclosure of the required information is an important device that 

facilitates dispute resolution, clarifies the matters to be adjudicated, 

informs the parties of the evidence to be adduced at the hearing, 

eliminates unnecessary duplication, and facilitates the development 

of a complete factual record during the hearing.

OBJECTIVE: 

To provide guidance concerning which papers are formal, how they 

are presented in the record, and pre-trial matters relating to the 

exchange of documents and witness lists.

1. FORMAL PAPERS: 

a. When are they presented?

i. The Trial Attorney is required to put into 

evidence two copies of the GC’s formal 

exhibits at the beginning of each hearing. 

ii. Ancillary documents, if attached to a 

charge, must be introduced separately.
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b. What documents are formal?

At a minimum, the formal documents consist of the 

Charge, Amended Charge, Complaint, Amended 

Complaint, written Motions, written responses to 

Motions, Notice of Time, Date and Location of Hearing, 

Notice Rescheduling the Hearing, Answer to the 

Complaint and Amended Answer to the Complaint.

c. What documents are not formal?

i. The transmittal memo; and 

ii. Subpoenas, absent extraordinary 

circumstances (e.g., when an issue 

relates to the subpoena). 

 Subpoenas are a part of the trial notebook. See Part 1, Chapter 

M.

d. How are they presented? 

The formal papers are listed in an index and numbered G.C. Exhibit #1, 

with each document identified separately by distinct letter. (Example: 

Charge is G.C. Exhibit #1a, Complaint is G.C. Exhibit #1b, Answer to 

Complaint is G.C. Exhibit #1c.) 

e. Revision of list of exhibits: 

Trial Attorney is prepared to revise the GC’s index of exhibits and 

numbering of exhibits during the pre-hearing conference in the event the 

exhibit is no longer needed due to duplication or stipulation. 
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2. PRE-HEARING DISCLOSURE--EXCHANGE OF COPIES OF DOCUMENTS,

WITNESS LISTS, AND THEORIES OF THE CASE:

a. What is exchanged and when?

At least 14 days before hearing, the Trial Attorney

exchanges with the party/ies, and, if ordered by the 

ALJ, copies are served on the ALJ, the following three types of 

information:

· proposed witness lists (including proposed 611(c)

witnesses), which includes a brief synopsis of the 

expected testimony of each witness, i.e., a brief 

statement of the facts about which the witness would 

testify or a summary of the testimony the witness would 

offer. A simple statement of the allegation(s) in the 

complaint the witness would address would not be 

sufficient because it would not disclose the substance of 

the testimony; 

· copies of documents, including an index, intended to be 

offered at the hearing; 

· a brief statement of the GC’s theory of the case,

including relief sought. 

 Pursuant to § 2423.23(c), the Respondent is required to disclose 

all defenses to the allegations in the complaint. The Trial 

Attorney specifically addresses this matter at the pre-hearing 

conference to ensure that the Respondent has raised any and all 

defenses that it intends to rely upon at the hearing.
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See Part 1, Chapter Q concerning Pre-hearing Conference. 

 A party may move the ALJ to change the disclosure date if 14 

days is not deemed an appropriate time to exchange information 

in a given case. The Trial Attorney coordinates this with the 

other parties’ representatives. Preferably, the parties will agree 

and file a joint motion requesting the change in dates for prehearing disclosure. Absent agreement, the Trial Attorney 

considers requesting that the ALJ, in a pre-hearing order, change 

the schedule for pre-hearing disclosure. 

b. What is not exchanged?

Potential rebuttal witnesses or documentary evidence are not identified or 

exchanged in advance because such evidence must be limited to 

evidence proffered in rebuttal of the Respondent’s case-in-chief, and until 

Respondent’s case has been presented the Trial Attorney is unable to 

determine what evidence to present on rebuttal.

c. Motion to compel more definitive pre-hearing disclosure: 

If the Respondent’s pre-hearing disclosure does not comply with the 

specificity required, the Trial Attorney files a Motion to Compel More 

Definitive Statement. For example, the following single-sentence 

statements of witnesses are insufficient: “Smith will testify concerning 

grievance practices” and “Groom will testify concerning his role as Agency 

 representative, Agency practices, and the specifics of the event.” These 

statements are too general, vague, and ambiguous and fall short of the 

requirements under section 2423.23(a). See ATTACHMENT 1N1 for an 

Example of a Motion to Compel More Definitive Statement. 

d. ALJ’s role: 

i. The ALJ does not participate in the prehearing disclosure phase of the 

proceeding except insofar as the pre-
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hearing order may set the schedule for 

pre-hearing disclosure. 

ii. The calling of witnesses or introduction of 

exhibits not exchanged prior to the 

hearing is subject to the ALJ’s discretion. 

See Part 2, Chapter J concerning 

Enforcement of Subpoenas and Sanctions 

for further discussion.

f. The importance of pre-hearing disclosure document in reviewing 

exceptions:

The Authority will look at the record, including the parties’ pre-hearing 

disclosure documents, in determining whether a matter was plead in the 

complaint and admitted to in the Respondent’s answer. See U.S. 

Department of the Air Force, Air Force Materiel Command, WrightPatterson Air Force Base, Ohio, 55 FLRA No. 159, 55 FLRA 970-71 

(1999) (Authority found, by examining the complaint, the Respondent’s 

answer and pre-hearing disclosure document, and the parties’ posthearing briefs, that it intended to concede the allegation that a past 

practice had evolved of smoking inside fire stations).

See ATTACHMENT 1N2 for examples of documents that meet the 

requirements for pre-hearing disclosure discussed above.

 

 Part 1, Chapter M concerning Trial Notebook (and ATTACHMENT 1M); 

Part 1, Chapter Q concerning Pre-hearing Conference; 

Part 2, Chapter J concerning Enforcement of Subpoenas and 

Sanctions; and 

Part 2, Chapter U concerning Adverse or Hostile Witness, Rule 

611(c).
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RESERVED
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Depositions

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O. DEPOSITIONS

OVERVIEW:

Section 2423.24(a) empowers the ALJ to regulate the course of 

pre-hearing matters. One such pre-hearing matter that is subject to 

the ALJ’s discretionary power is the taking of depositions.

OBJECTIVE:

To provide guidance concerning the use of, and other 

administrative matters relating to, depositions. 

1. WHEN USE OF A DEPOSITION IS APPROPRIATE:

a. To preserve the testimony of a witness who will 

be unavailable to testify at the hearing.

For example, a material witness who will be out of the 

country for an extended period of time prior to the

scheduled hearing may necessitate that a request for 

taking a deposition be made. 

b. When Respondent’s witness testifies about a 

document or note that is not brought to the trial 

and appears to be important, the Trial Attorney 

requests that the record remain open to review 

the document or note and to depose the witness 

about the contents of the document or note, if 

necessary. This saves time because the ALJ 

does not have to reconvene the hearing.
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c. As a rule, use of depositions for purpose of pretrial discovery is not appropriate.

d. Depositions are authorized at the discretion of 

the ALJ.

2. PRACTICE AND PROCEDURE:

a. How to arrange for a deposition: 

Upon discovery that a material witness will be 

unavailable for the scheduled hearing, the Trial 

Attorney: (1) requests the ALJ to issue an order for the 

taking of the deposition, or (2) jointly agrees with 

opposing counsel for the taking of a deposition. 

b. Other administrative matters:

· The party for whom the deposed witness will appear 

arranges for a court reporter and normally bears the 

cost of that service. 

· A suitable conference room for the taking of the 

deposition is arranged. 

· If either party objects during the questioning of a 

witness, the witness must answer the question. 

· Prior to submitting the transcript as substantive

evidence at the trial, the Trial Attorney obtains rulings on 

any evidentiary objections raised during the deposition. 

If the deposition occurs post-hearing, the court reporter 

sends a copy to the ALJ who will make the necessary

ruling. 
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c. Introduction of deposition transcript from related proceeding: 

Opportunities may arise where a deposition transcript from a related 

proceeding, e.g., EEO proceeding, may be used either: 

i. To impeach the party witness if he 

testifies at trial inconsistently with the 

transcript; or 

ii. As a party admission, as substantive 

evidence in the GC’s case-in-chief. In this 

circumstance, it is appropriate to move 

those portions of the transcript that 

contain the admissions into evidence. 

 Part 1, Chapter J concerning Pre-trial Preparation of Witnesses; 

Part 1, Chapter P concerning Pre-hearing Order; and 

Part 2, Chapter EE concerning Leaving the Record Open for 

Additional Evidence.
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RESERVED
Preparation for Hearing 

Pre-hearing Order

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Litigation Manual 1−0

 P. PRE-HEARING ORDER

OVERVIEW:

Pursuant to § 2423.24(c), an ALJ may issue a pre-hearing or pretrial order which governs all pre-hearing matters as well as any 

hearing matters that are addressed.

OBJECTIVE:

To provide the Trial Attorney with guidance concerning the prehearing order which governs all trial matters that occur pre-hearing.

1. AN ALJ ISSUES A PRE-HEARING ORDER WHICH MAY CONFIRM OR 

CHANGE THE FOLLOWING MATTERS:

· Date, time, and place of the hearing; 

· Schedule for pre-hearing disclosure of witness lists and 

documents intended to be offered into evidence at the hearing; 

· The date for submission of procedural and substantive motions; 

· The date, time, and place of the pre-hearing conference; and 

· Any other matter pertaining to pre-hearing or hearing procedures. 

For example, other matters to be discussed at the pre-hearing 

conference, such as compliance with subpoenas. 

2. TRIAL ATTORNEY PREPARES PROPOSED PRE-HEARING ORDER, AS IS 

NECESSARY:

The Trial Attorney prepares a motion pursuant to § 2423.21 only if 

required by the circumstances of the case. For example, an answer may 

raise an issue which prompts a need for a pre-hearing order or when the 
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disclosure, or failure to disclose, a pre-hearing document raises such an 

issue. This gives the Trial Attorney an opportunity to shape the course of 

the litigation. 

 The Trial Attorney attempts to agree with Respondent’s 

representative on the method for disclosure of pre-hearing 

documents. Therefore, there is no need to file a motion for a prehearing order concerning the method for disclosure unless the 

Respondent’s representative is uncooperative.

See ATTACHMENT 1P for an example of a Motion for Pre-hearing Order.

 Part 1, Chapter N concerning Pre-hearing Disclosure; and 

Part 1, Chapter Q concerning Pre-hearing Conference. 
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Pre-hearing Conference

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Q. PRE-HEARING CONFERENCE

OVERVIEW:

Pursuant to § 2423.24(d), unless otherwise determined by the ALJ, 

pre-hearing conferences will be held at least seven days before the 

hearing at which time the parties will discuss, narrow, and resolve 

issues set forth in the complaint and answer, as well as any prehearing disclosure matters or disputes.

OBJECTIVE:

To provide guidance to Trial Attorneys concerning the matters to be 

discussed at a pre-hearing conference. 

1. WHEN IS A PRE-HEARING CONFERENCE REQUESTED?

It is OGC policy to ask for a pre-hearing conference in every case that 

is going to hearing. The Trial Attorney files with the OALJ a Motion for a 

Pre-hearing Conference simultaneously with the Complaint. The Trial 

Attorney has the option of using either a separate service sheet for the 

Complaint and the Motion for Pre-hearing Conference or one service 

sheet covering both documents as long as the service sheet clearly 

identifies the documents served. 

See ATTACHMENT 1Q for an example of a Motion for a Pre-hearing 

Conference. 

2. WHEN IS IT CONDUCTED?

Section 2423.24(d) states that a pre-hearing conference shall be 

conducted by telephone or in person at least seven days before the 

hearing date unless: 

· the ALJ determines that a pre-hearing conference is 

unnecessary and 

· No party has moved for a pre-hearing conference. 
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3. MANDATORY PARTICIPATION:

Pursuant to § 2423.24(d), all parties are required to participate in the prehearing conference. 

For whatever reason, should a Charging Party indicate a reluctance or 

desire not to participate, the Trial Attorney reminds the Charging Party of 

the requirement. If the Charging Party nevertheless chooses not to 

participate (and the ALJ does not mandate such participation) it will not be 

represented at the pre-hearing conference and the Trial Attorney should 

state so at the pre-hearing conference. As the Public Prosecutor, the GC 

represents the public’s interest, not the Charging Party’s. If settlement is 

discussed at the pre-hearing conference and the Charging Party is not 

represented, the Region follows the procedures and principles in the OGC 

Settlement Policy in determining whether a bilateral or a unilateral

settlement is appropriate. 

4. CHECKLIST OF MATTERS TO BE DISCUSSED AT PRE-HEARING 

CONFERENCE:

The Trial Attorney seeks to ensure that the matters to be discussed at the 

pre-hearing conference are listed in the pre-hearing order issued by the 

ALJ. These matters include, but are not limited to: 

· Discussion of settlement efforts; 

· Pre-hearing disclosure of witness list, including a brief 

synopsis of the expected testimony of each witness;

copies of documents with an index; and a statement of 

theory of the case including relief requested, and any 

and all defenses upon which Respondent intends to rely 

on at the hearing; 

 The Trial Attorney must be familiar with the documents that 

comprise Respondent’s pre-hearing disclosure and be prepared 

to discuss any insufficiency in that which has been provided. 

The Trial Attorney ensures that s/he has been provided with 

complete lists of witnesses, documents, and that the Respondent 

does not intend to rely upon any other defenses not stated in the 
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Pre-hearing Conference

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pre-hearing disclosure document. The Trial Attorney may seek 

to amend the pre-hearing disclosure document based upon 

Respondent’s pre-hearing disclosure document. For instance, 

the Trial Attorney may conclude that an additional witness is 

necessary to provide testimony concerning an affirmative 

defense raised by the Respondent. The Trial Attorney has acted 

in good faith in meeting the disclosure requirements and the ALJ 

should allow the witness list to be amended at hearing. See

62 Fed. Reg. 40911, 40913 (July 31, 1997) (parties expected to 

act in good faith in meeting their pre-hearing disclosure 

obligations). 

· Admissions of fact, disclosure of contents and 

authenticity of documents;

· Obtaining ALJ’s ruling on outstanding pre-hearing 

motions, e.g., motion for sequestration, motion to 

amend complaint; 

· Discussion of compliance with subpoenas and possible 

sanctions and/or seeking enforcement due to noncompliance (if enforcement is contemplated, the Trial 

Attorney asks for postponement of the hearing), and

petitions to revoke, if applicable; 

· Stipulations of fact; 

· Appropriateness of case for disposition by bench 

decision; and 

· ALJ’s preparation of summary of pre-hearing 

conference. 

 At the close of a pre-hearing conference, the Trial Attorney 

requests that the ALJ prepare a summary of the matters 

discussed, i.e., agreements between the parties, and actions 

taken by the ALJ. Under § 2423.24(d), it is within the ALJ’s 

discretion whether to prepare a summary of the pre-hearing 

conference. In the event that the ALJ declines to do so, the Trial 

Attorney first asks the ALJ if s/he will be presiding at the hearing. 

 If the ALJ answers no, remind the ALJ that a summary is needed 
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Pre-hearing Conference

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Litigation Manual 1−3

for the presiding ALJ as well as for the parties. If the ALJ still 

refuses to prepare a summary, ask the other parties’ counsel if 

s/he is willing to stipulate to the matters discussed and decided at 

the pre-hearing conference. In the event that the parties are 

unwilling to stipulate, the Trial Attorney memorializes the 

agreements among the parties and the ALJ’s rulings in a prehearing order, covered by a motion, prepared for the ALJ’s 

signature. If the ALJ prepares a summary, make sure that it 

comports with your understanding of the actions taken, and the 

discussion that occurred at the pre-hearing conference. 

 Part 1, Chapter N concerning Pre-hearing Disclosure; and 

Part 1, Chapter P concerning Pre-hearing Order. 
Office of the General Counsel 

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PART 2 

 

 HEARING

 

(OPENING OF THE HEARING

TO

CLOSE OF THE RECORD)

Preliminary Matters 

Order of Hearing

Office of the General Counsel 

Litigation Manual 2−0

A. ORDER OF HEARING

OVERVIEW:

The hearing begins with the ALJ’s opening of the record, continues 

with the parties’ presentation of their cases, and ends with the 

ALJ’s closing of the record. 

OBJECTIVE:

To provide a concise list of the different stages of a hearing.

STAGES OF A HEARING:

a. ALJ opens the record and makes opening 

remarks. 

b. Appearances by the parties on the record. 

c. Preliminary matters considered if not ruled upon

at pre-hearing conference: 

 · Motion for sequestration of witnesses; 

 

 · Motion to introduce or admit formal 

documents; 

 

 · Motion to amend complaint; 

 

 · Motion to amend answer; 
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· Motions for sanctions or continuance 

when Respondent has not complied with 

subpoena; 

 If a subpoena has been complied with, the Trial Attorney may 

want to note that on the record.

 · Motion for admission of stipulations, joint exhibits or GC 

exhibits to which there will be no objection; and 

· Discussion of appropriateness of bench decision. 

 

d. Opening statements by the parties. 

e. GC’s case-in-chief consists of:

· Direct examination of GC’s witnesses; 

· Introduction of GC’s exhibits; 

· Cross-examination of GC’s witnesses 

(Furnishing of witness’ statements to 

Respondent’s counsel, if requested); and 

· Re-direct of GC witnesses. 

f. Respondent’s case-in-chief consists of:

· Direct examination of Respondent’s 

witnesses; 
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· Introduction of Respondent’s exhibits; 

· Cross-examination of Respondent’s 

witnesses 

 (Furnishing of witness’ statements by 

Respondent’s counsel to the Trial 

Attorney, if requested); and 

· Redirect examination of Respondent’s 

witnesses. 

g. Rebuttal Evidence. 

h. Closing Argument (optional). 

i. Closing of Record by ALJ which includes: 

· Setting time for the filing of briefs; 

· Remarks by ALJ regarding matters to be 

addressed in briefs; and 

· Format of briefs. 
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 RESERVED 
Preliminary Matters 

Postponement or Continuance of Hearing 

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Litigation Manual 2−0

B. POSTPONEMENT OR CONTINUANCE OF HEARING

OVERVIEW:

Upon a party’s motion pursuant to § 2423.21, an ALJ may continue 

a hearing either from day-to-day or adjourn it to a later date or to a 

different place. After issuance of complaint, motions to change the 

date of the hearing, i.e., postponement must be made immediately 

upon discovery of the circumstance which, in the judgment of the 

moving party, warrants a change in the date of hearing.

OBJECTIVE:

To provide guidance concerning circumstances when it is 

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Postponement or Continuance of Hearing 

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Litigation Manual 2−1

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Preliminary Matters 

Postponement or Continuance of Hearing 

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Postponement or Continuance of Hearing 

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Litigation Manual 2−3

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1. PRACTICE:

a. When is a request to postpone the hearing or a 

request to continue the hearing made and to 

whom? 

i. Postponements--Before the hearing to the 

Chief ALJ. 

ii. Continuance--At the hearing to the 

presiding ALJ. 

b. For what reason? 

i. When important witness(es) are 

unavailable for the scheduled hearing 

date; and 

ii. When counsel is unavailable. 

c. The grant of a continuance is within the 

discretion of the ALJ: 
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Postponement or Continuance of Hearing 

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ALJ’s decision is subject to challenge only if it can be 

shown that there has been an abuse of discretion in

denying a continuance. 

See National Labor Relations Board, 46 FLRA No. 14, 

46 FLRA 107, 108 n.2 (1992) (NLRB) (ALJ did not 

abuse discretion in denying GC’s request for a 

continuance to recall, for the purpose of rebuttal 

testimony, a particular witness who testified during the 

GC’s case-in-chief); 

See also Department of the Navy, Navy Resale 

System, Field Support Office, Commissary Store 

Group, Norfolk, Virginia, 16 FLRA No. 37, 16 FLRA 

257, 257 n.2 (1984) (no prejudicial error where ALJ

denied request for continuance but granted 

Respondent’s alternative request that the record remain 

open in order that a deposition be taken of the 

unavailable witness); and Professional Air Traffic 

Controllers Organization, MEBA, AFL-CIO, 7 FLRA No. 

10, 7 FLRA 34, 42-43 (1981) (no prejudicial error where 

ALJ denied Respondent’s request for continuance and

Respondent failed to indicate an intention to present 

evidence on particular issues, or to make an offer of 

proof). 

2. PROCESS OF REQUESTING A CONTINUANCE:

a. Specify on the record all the reasons why the 

continuance is needed;
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b. Specify the prejudice which may result if the 

continuance is not granted; and 

 

c. Make an offer of proof if the ALJ denies the 

continuance at hearing.

For example: “Your Honor, if a continuance were 

granted, the GC could produce Witness X who would 

testify as follows . . . regarding Issue X 

. . . .” 

3. OPPOSITION TO A REQUEST FOR A CONTINUANCE, CONSIDER:

a. Whether the grounds stated for such a 

continuance are valid given the considerations of 

additional government cost. 

b. Whether the continuance could have been 

sought at an earlier point in time. 
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Postponement or Continuance of Hearing 

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 RESERVED 
Preliminary Matters 

Trial Attorney’s Decorum 

Office of the General Counsel 

Litigation Manual 2−1

C. TRIAL ATTORNEY’S DECORUM

OVERVIEW:

Section 2423.31(a), which concerns the conduct of a hearing, 

states, among other things, that an ALJ “shall conduct the hearing 

in a fair, impartial, and judicial manner, taking action as needed to 

. . . maintain order during the proceedings.” Further, the ALJ “may 

take any action necessary to . . . conduct, . . . and regulate the 

hearing . . . .” Although there are no specific statutory or regulatory 

references to decorum, this section of the Regulations authorizes 

an ALJ to exercise discretion in regulating the parties’ conduct at a 

hearing. Because this is a formal administrative procedure 

concerning a serious matter, the parties’ conduct is professional at 

all times. 

OBJECTIVE: 

To provide guidance for Trial Attorneys in their conduct and 

responsibilities with respect to ULP hearings. 

1. COURTESY IS PRACTICED AT ALL TIMES AT THE HEARING:

a. To whom is courtesy directed? 

The ALJ, the parties’ representatives, witnesses 

and any other person involved in the proceeding. 

b. How are individuals addressed?

· Use appropriate language; 

· Do not use familiar names; 
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· The ALJ is normally addressed as “Your 

Honor"; 

· Adhere to ALJ requirements regarding 

whether to stand when addressing the 

ALJ or witnesses; and 

· Use best judgment, considering the court 

room setting, the formality of the 

proceedings, and the particular 

circumstances of the matter. 

c. How to handle difficult situations: 

· Remain calm; 

· A request for a short break or recess may 

be appropriate in certain situations; and 

· Request a few minutes to confer with cocounsel, if available. 

 Assertive advocacy in presenting the GC’s case is not 

disrespectful conduct. Rather, it is appropriate and professional 

behavior that is necessary for the complete presentation of the 

case. 

d. The ALJ is responsible for controlling the hearing. 

e. Approaching the bench: 
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i. Each ALJ may have differing 

requirements with regard to how to 

approach the bench or how to approach 

witnesses. 

ii. Always request permission to approach 

the bench at the beginning of the hearing; 

the ALJ will give any further instructions in 

this area. 

2. HEARING ROOMS:

a. The OALJ is responsible for obtaining hearing 

rooms for the trial and the Trial Attorney assists 

in ensuring that the rooms are used properly. 

Adhere to rules of usage of Federal court houses 

and/or Federal office buildings at all times. 

b. Use of the hearing room if a court room facility is

not available:

· Arrange furniture in a suitable 

configuration; 

· Leave the hearing room in the same 

condition (or better), including replacing 

furniture and general clean up; 
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Litigation Manual 2−4

· Comply with no-smoking policies; 

Most government buildings have no-smoking 

policies for working areas, which would include 

hearing rooms. Even if there is no specific 

smoking policy, smoking is not be permitted in 

the hearing room at any time; and 

· Comply with other rules, including rules 

regarding eating and drinking. 

Eating and drinking are not normally allowed in 

hearing rooms, and particularly should not be 

allowed during the hearing. This is not 

professional behavior and detracts from the 

seriousness of the proceedings. 

3. DRESS:

The Trial Attorney wears appropriate courtroom attire at all times. The 

Trial Attorney explains to the witness the importance of dressing 

appropriately for all courtroom appearances. 

4. MEDIA COVERAGE:

Subject to the ALJ’s discretion, administrative hearings are not subject to 

filming by individuals, activities, unions or news organizations. 

Photographs are usually not allowed, but, subject to the ALJ’s discretion, 

may be permitted if all the parties agree, and such conduct is discreet and 

does not disrupt the proceedings. Because administrative hearings are 

open to the public, unless otherwise ordered by the ALJ, see

§ 2423.30(a), reporters are allowed to observe, as other members of the 

public, as long as they are not disruptive. 
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Trial Attorney’s Decorum 

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Litigation Manual 2−5

 If an issue arises regarding conduct at the hearing and/or use of 

hearing rooms, it is always appropriate to request a recess and 

call the RA or RD for guidance. 

 Part 2, Chapter D concerning the ALJ’s Involvement and Decorum at 

the Hearing. 
Preliminary Matters 

ALJ Involvement and Decorum at the Hearing 

Office of the General Counsel 

Litigation Manual 2−0

D. ALJ INVOLVEMENT AND DECORUM AT THE HEARING

OVERVIEW:

Section 556(c)(5) of the APA (5 U.S.C. § 556(c)(5)) and 

§ 2423.31(a) of the Regulations empower an ALJ to “regulate the 

course of a hearing.” ALJs have broad latitude to “receive evidence 

and inquire fully into the relevant and material facts concerning the 

matters that are the subject of the hearing.” § 2423.31(b). 

However, in determining the course of conduct of a hearing, an ALJ 

must be fair and impartial. § 2423.31(a).

OBJECTIVE:

To provide guidance to Trial Attorneys concerning an ALJ’s role in 

inquiring fully into the facts of a case and what the Trial Attorney 

does when matters concerning an ALJ’s alleged conduct of a 

hearing in an impartial or unevenhanded manner arise.

1. AN ALJ’S INQUIRY INTO THE FACTS:

a. An ALJ’s questioning of witnesses: 

· Is permissible under § 2423.31(b); 

· May occur during direct or cross-examination; 

· May raise a matter which you did not wish to pursue; 

· Is subject to the same requirements as are the parties’ 

questions under § 2423.31(b) (materiality, relevance, 

undue repetition or privilege); 

· Is subject to objections to specific questions or lines of 

questioning; and 

 
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· Is subject to objections made to cross-examination 

questions of your witness on the same grounds as 

objections to Respondent’s questions (badgering, asked 

and answered, etc.). 

 In light of an ALJ’s broad latitude to inquire fully into the facts, 

care is taken before making any objection to an ALJ’s 

questioning. All such objections are made respectfully. 

b. An ALJ’s offering of documentary evidence into 

the record: 

· Occurs infrequently; 

· Is subject to the same requirements as 

other documentary evidence: authenticity, 

relevance, materiality, etc.; and 

· Is subject to objections. 

 

c. Include on the record: 

· Any questioning of witnesses by the ALJ 

or discussion concerning witnesses’ 

testimony or the ALJ’s offer of a 

documentary evidence; or 

· A summary/synopsis of the ALJ’s 

questions or comments which occurred off 

the record, if the questions or comments 

or the offered documentary evidence may 
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have material effect on the outcome of the 

case. (See discussion below on improper 

ALJ decorum). 

d. An ALJ’s comments, questions or conversations 

during the hearing: 

· Are a common occurrence. 

Conversations often occur during opening 

statements or closing remarks; and 

· Be prepared to respond to any questions 

concerning relevant case law posed by 

the ALJ. 

2. ALJ DECORUM AT HEARING:

a. Standard of ALJ conduct of hearing: 

· ALJs must conduct the hearing in an evenhanded 

manner that is free of bias. 

For example, the ALJ may not make “disparaging remarks” nor 

attempt to “bully Counsel for the General Counsel into agreeing 

with his position.” 

U.S. Department of Veterans Affairs, Medical Center, Jamaica 

Plain, Massachusetts, 51 FLRA No. 73, 51 FLRA 871, 875, 877 

(1996) (ALJ acted inappropriately and failed to conform to 

minimal standards of judicial behavior and case assigned to a 

different ALJ on remand); Compare U.S. Department of Justice, 

Immigration and Naturalization Service, Washington, D.C., 

55 FLRA No. 20, 55 FLRA 93, 98 n.9 (1999) (Authority remanded 
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Litigation Manual 2−3

case to Chief ALJ for assignment to different ALJ due to 

intemperate nature of ALJ’s comments at trial which raise 

significant questions whether the ALJ has predetermined the 

issue) with National Treasury Employees Union, 53 FLRA No. 

138, 53 FLRA 1541, 1556 (1998) (“It is evident that the Judge 

became frustrated with and upbraided the Charging Party and his 

counsel in this case. Although the Judge may have uttered some 

intemperate remarks to the Charging Party and characterized the 

Charging Party’s arguments and activities in a deprecating 

manner, the Judge’s recommended decision does not appear to 

be tainted by any bias against the Charging Party); see also

District No. 1, Pacific Coast District Engineers Beneficial 

Association, 274 NLRB 1481, 1485-86 (1985) (Member Hunter 

concurring) (ALJ disqualified on bias grounds based on record 

which established pattern of injudicious statements including 

sarcastic repartee). 

b. Procedure when ALJ’s conduct of a hearing is 

improper: 

· Object, on the record, to the questionable 

conduct to ensure that the transcript 

reflects such objection and the basis for 

such objection. The objection may 

provide the basis for filing an exception to 

the ALJ’s decision; 

 Pursuant to § 2423.30(d), objections not raised to an 

ALJ are deemed waived.

· Review the transcript upon its receipt to ensure that the 

court reporter has accurately transcribed the objection. 

If not, file a motion to correct the transcript; 
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Litigation Manual 2−4

 Pursuant to § 2423.21(b)(4), motions to correct the 

transcript must be filed within 10 days after receipt of the 

transcript. 

· Prepare a memorandum to the RA describing the 

circumstance at the hearing that gave rise to the 

objection; 

· Expect the RA to forward the memorandum along with 

the pertinent pages from the transcript to the Deputy GC 

who will discuss the matter with the GC; and 

· Discuss, upon receipt of a decision, with the RA whether 

to file an exception based upon the ALJ’s conduct of the 

hearing. 

 

 Part 1, Chapter H concerning an ALJ’s Involvement in Settlements;

Part 1, Chapter L concerning Motions; 

Part 2, Chapter C concerning Trial Attorney’s Decorum; 

Part 2, Chapter DD concerning GC’s Rebuttal; 

Part 2, Chapter K concerning Evidence, in General; and 

Part 3, Chapter F concerning Exceptions.
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RESERVED
Preliminary Matters 

The Role of the Charging Party Representative at the Hearing 

Office of the General Counsel 

Litigation Manual 2−0

E. THE ROLE OF THE CHARGING PARTY REPRESENTATIVE 

 AT THE HEARING 

OVERVIEW:

Pursuant to § 2423.30(c), concerning the rights of parties, the 

Charging Party, and all other parties to the proceeding, have the 

right to appear at any hearing in person, by counsel, or by other 

representative in order to: examine and cross-examine witnesses; 

introduce into the record documentary or other relevant evidence; 

and submit rebuttal evidence, except that the ALJ prescribes the 

extent of a party’s participation. 

OBJECTIVE:

To provide guidance concerning a Trial Attorney’s responsibilities at 

the hearing with regard to continuing the relationship with the 

Charging Party’s representative that was established at the prehearing stage of the litigation. See Part 1, Chapter I.

1. BEFORE THE HEARING:

Discuss with Charging Party’s representative the degree to which s/he will 

participate in the hearing. Ascertain to what extent the Charging Party’s 

interests are the same or different. 

 Usually, the Charging Party’s representative will not actively 

participate in the hearing by examining or cross-examining 

witnesses or presenting oral argument. The Charging Party’s 

representative may identify himself/herself on the record but only 

participate as a technical advisor to the Trial Attorney. The Trial 

Attorney will be a more effective advocate for the GC if the 

Charging Party representative’s role is determined before the 

hearing begins.
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2. CHARGING PARTY’S PARTICIPATION AT THE HEARING:

a. The Charging Party has a right to fully participate 

in the hearing by: 

· Calling witnesses; 

· Presenting evidence; 

· Presenting oral argument; 

· Receiving documentary evidence 

presented by Respondent; 

· Making objections to testimony and 

documents offered into evidence; and 

· Submitting a post-hearing brief. 

A Charging Party’s right to participate at the hearing 

shall be subject to the ALJ’s discretion. SBA, 54 FLRA 

No. 83, 54 FLRA 837, 847 (1998). In addition, the GC 

has the lead role in prosecuting the case. Id. 

b. The Charging Party has no right to: 

Expand upon the issues presented in the complaint 

during the hearing. 

3. TRIAL ATTORNEY’S OBJECTIONS:
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The Trial Attorney objects to the Charging Party representative’s oral or 

documentary evidence, motions, and argument, to the same extent as 

deemed appropriate during the Respondent’s examination or crossexamination of witnesses. See Part 2, Chapter Z concerning Objections. 

 Part 1, Chapter I concerning Relationship with Charging Party 

Representative; and

Part 2, Chapter Z concerning Objections.
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 RESERVED 
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Ethics 

Office of the General Counsel 

Litigation Manual 2−0

F. ETHICS

OVERVIEW:

According to the ABA Standards of Professional Conduct “[a] 

prosecutor has the responsibility of a minister of justice and not 

simply that of an advocate.” In representing the GC in ULP 

proceedings, the Trial Attorney is always mindful of his/her role as 

the “public prosecutor.” 

In addition, § 554(d) of the APA, 5 U.S.C. § 554(d), contains the 

general prohibition regarding ex parte communications: “Except to 

the extent required for the disposition of ex parte matters as 

authorized by law, [the ALJ] may not--(1) consult a person or party 

on a fact in issue, unless on notice and opportunity for all parties to

participate. . . .” Part 2414 of the Authority’s Regulations governs 

ex parte communications. In addition, Executive Order No. 12674, 

and the Authority’s Regulations at Part 2415, govern matters 

relating to the ethical conduct of Authority employees.

OBJECTIVE:

To provide guidance concerning the Trial Attorney’s role as the 

“public prosecutor” and other ethical matters that may arise during 

the course of litigation. 

1. THE TRIAL ATTORNEY’S ROLE AS PUBLIC PROSECUTOR:

a. General Prosecutorial Obligations--The Trial 

Attorney considers the following: 

· Are the charges in complaint supported by 

probable cause? 
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· Is there evidence sufficient to establish a 

prima facie case? 

· Is there a good faith argument for 

application, extension, or modification of 

existing law in support of the Trial 

Attorney’s theory of the case? 

· Is the remedy sought appropriate for the 

violation? 

· Do the prosecution and remedy effectuate 

the purposes of the Statute? 

b. Relationship with Charging Party: 

· Avoid actions that create the appearance 

of partiality. 

c. Relationship with Respondent: 

· Avoid actions that create the appearance 

of partiality; 

· Know how to communicate with 

Respondent concerning evidence, 

witnesses, and law that contravene your 

position and/or support Respondent’s 

position; and 
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Ethics 

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Litigation Manual 2−2

· Make the proper disclosures before 

communicating with Respondent’s 

witnesses. 

d. Relationship with the ALJ and the Authority: 

· Be mindful of the general requirement of 

candor; 

· Know how to communicate when 

evidence, witnesses and law that 

contravenes your position and/or supports 

Respondent’s position arises; and 

· Fulfill responsibility to file exceptions, 

cross-exceptions, and corresponding 

supporting briefs. 

2. EX PARTE COMMUNICATION:

Part 2414 of the Authority’s Regulations governs matters relating to ex 

parte communications.

a. What is an ex parte communication? 

An ex parte communication is “an oral or written 

communication not on the public record with respect to 

which reasonable prior notice to all parties is not given.” 

 5 C.F.R. § 2414.3(b).

b. Refrain from ex parte communications: 
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When prosecuting a ULP case the Trial Attorney 

refrains from partaking in communications prohibited 

under § 2414.5: 

· Communications, when written, if copies 

are not contemporaneously served by the 

attorney on all parties to the proceeding 

as required; and 

 

· Communications, when oral, unless 

advance notice is given by the attorney to 

all parties to the proceeding and adequate 

opportunity to be present is afforded. 

See, e.g., Department of Veterans Affairs, Finance 

Center, Austin, Texas, 48 FLRA No. 21, 48 FLRA 247, 

251-52 (1993) (ALJ’s discussion with one party’s 

counsel during an in camera examination of a 

requested report that related to the merits of the case 

was a prohibited ex parte communication under Part 

2414 of the Regulations). 

c. Report prohibited ex parte communication:

A Trial Attorney who is involved in an ex parte

communication reports such prohibited communication

as required by § 2414.8. The Authority may invoke a 

penalty if a Trial Attorney has knowingly or willfully 
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violated the prohibition against ex parte

communications. § 2414.9(c). 

d. Under § 2414.6, the following oral or written 

communications are not ex parte:

· Matters which relate solely to what the 

ALJ or Authority is authorized by law to 

entertain or dispose of on an ex parte

basis; 

· Requests for information solely 

concerning the status of a case; 

· Matters which all parties agree, or which 

the ALJ or Authority rules, may be made 

on an ex parte basis; 

· Matters that concern proposing settlement 

or an agreement for disposition of any or 

all issues in the proceeding; and 

· Matters of general significance to the field 

of labor-management relations, i.e., not 

related to any specific proceeding. 

3. OTHER EMPLOYEE RESPONSIBILITIES AND CONDUCT:

All OGC employees are required to follow the requirements for employee 

responsibilities and conduct set forth at: 
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Ethics 

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· Part 2415 of the Authority’s Regulations; 

· Exec. Order No. 12674, 54 Fed. Reg. 15159 (1989), as amended

Exec. Order No. 12731, 55 Fed. Reg. 42547 (1990), 5 U.S.C. 

§ 7301 note, which governs the ethical conduct of government 

officers and employees. 

See Part 2, Chapter O to learn how to handle purloined documents and 

other "Improperly" obtained evidence. 
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Ethics 

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 Part 1, Chapter I concerning Relationship with Charging Party 

Representative; and 

Part 2, Chapter O concerning Purloined Documents and Other 

"Improperly" Obtained Evidence.
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Ethics 

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 RESERVED 

Preliminary Matters 

Settlements at Hearing 

Office of the General Counsel 

Litigation Manual 2−1

G. SETTLEMENTS AT HEARING

OVERVIEW:

 

Section 2423.31(e) specifically sets forth authorization for informal 

and formal settlements after the hearing is opened.

OBJECTIVE: 

To provide Trial Attorneys with guidance as to how to process 

settlement agreements reached at hearings.

1. POLICY:

a. Preference for settlement in lieu of litigation. 

See Part 1, Chapter H concerning post complaint/prehearing settlements. 

b. Policy considerations surrounding the form and 

content of such agreements are identical to 

those applied in post-complaint/pre-hearing 

settlements. 

See Part 1, Chapter H. 

2. PROCEDURE:

a. Informal settlement agreement after opening of 

hearing: 
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i. First, request a brief recess to contact the 

RD for approval. Upon such approval, 

ii. Move for permission to withdraw the 

complaint on behalf of the RD, and, 

having been granted such permission by 

the ALJ, 

iii. The RD approves the informal settlement 

agreement. 

See § 2423.31(e)(1). 

 This procedure applies whether the informal settlement is 

bilateral or unilateral. However, prior to submitting a unilateral 

settlement to the RD for approval, the Trial Attorney obtains the 

Charging Party’s objections and reasons, so that they may be 

considered by the RD and covered in the dismissal letter. 

b. PSIWOC during a hearing: 

i. Same procedure applies as stated above 

in subsection “a” except that the RD 

ultimately approves a withdrawal request 

rather than the settlement agreement 

itself. 

ii. This procedure also applies if a partial 

settlement is reached with the added 

requirement that the Trial Attorney moves 
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to sever those settled portions of the 

complaint. 

 In neither case is the ALJ required to approve the terms of the 

settlement agreement or transmit such agreement to the FLRA 

for approval. 

c. Formal settlement during the hearing: 

i. If the parties reach a formal settlement 

during the hearing, after obtaining the 

approval of the RD, the Trial Attorney 

requests, on behalf of the RD, that the 

ALJ approve the formal settlement itself, 

and upon such approval, to transmit the 

agreement to the Authority for approval. 

See § 2423.31(e)(2). 

ii. If the formal settlement is unilateral, the 

Trial Attorney does not request the ALJ to 

approve the agreement until after the 

Charging Party is given the opportunity to 

state on the record or in writing its reasons 

for opposing the agreement. 

See § 2423.31(e)(2). 

 Part 1, Chapter H concerning Post Complaint/Pre-Hearing 

Settlements.
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Settlements at Hearing 

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 RESERVED 
Trial Motions 

Motions, in General

Office of the General Counsel 

Litigation Manual 2−1

 H. MOTIONS, in General

OVERVIEW:

At the opening of the hearing, to the extent that certain matters 

were not covered during the pre-hearing conference, the Trial 

Attorney addresses certain preliminary matters before calling any 

witnesses during the GC’s case-in-chief. Such matters include 

various types of motions, the disposition of which facilitates the 

orderly presentation of evidence at trial. 

OBJECTIVE:

To provide guidance concerning the various types of motions filed 

before the start of the hearing: motions for the sequestration of 

witnesses; motions to amend the complaint; and motions to 

introduce formal documents, joint exhibits, and stipulations. 

1. MOTION FOR SEQUESTRATION:

a. Regulatory authority:

Under § 2423.31(a), concerning the conduct of the 

hearing, an ALJ has broad discretion to rule on motions 

which includes a motion to sequester witnesses. 

See, e.g., SBA, 54 FLRA No. 83, 54 FLRA 837, 847 

(1998); United States Marine Corps, Marine Corps 

Logistics Base, Barstow, California, 5 FLRA No. 97, 5 

FLRA 725, 736-41 (1981) (MCLB, Barstow) (ALJD) 

(discussion and application of NLRB rule on 

sequestration). 
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b. Rule 615 of the Federal Rules of Evidence 

provides: 

“At the request of a party the court shall order witnesses 

excluded so that they cannot hear the testimony of 

other witnesses, and it may make the order of its own 

motion. This rule does not authorize exclusion of:

i. a party who is a natural person; or 

ii. an officer or employee of a party which is 

not a natural person designated as its 

representative by its attorney; or 

iii. a person whose presence is shown by a 

party to be essential to the presentation of 

his cause.” 

c. Purpose of Motion:

To prevent the shaping of testimony by witnesses to

match that given by other witnesses, i.e., to prevent 

witnesses from modifying their testimony based on the 

testimony of others. 

d. Timing of Motion: 
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Motion is either made pre-hearing and discussed at the 

pre-hearing conference or at the outset of the hearing. 

 See Part 1, Chapter Q on Pre-hearing Conference. 

Whenever the motion is made, the intent is to minimize 

the witnesses’ opportunity to overhear on-the-record 

discussion of the case, even with respect to discussion 

of other preliminary matters. 

e. Content of Motion: 

Request that ALJ issue an order preventing the 

witnesses not only from hearing the testimony of other 

witnesses, but also from discussing their testimony with 

each other. Even though such a prohibition is not within 

the explicit wording of Rule 615, it is necessary to 

prevent circumvention of the Rule. 

f. General Criteria: Motion to sequester witness is 

made when:

· The credibility of witnesses is expected to 

be an issue and witness may need to 

testify on rebuttal; 

· Where GC witnesses are subject to 

intimidation or other influence by the 

presence of supervisors, management 

officials, or union officials; and 
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· Where witness is the Charging Party (ask 

Charging Party to designate a 

representative in this instance). 

 As much as possible, seek to establish an environment in which 

witnesses are free of any possible influence by the prior 

testimony of other witnesses or by the presence of such persons 

during their testimony. To this end, always consider obtaining 

the testimony of a witness before other testimony is presented. 

However, this may present a problem if this witness testifies on 

rebuttal. 

g. Witnesses subject to sequestration order: 

i. The discriminatee:

In MCLB, Barstow, 5 FLRA at 736-37, after the discriminatee had 

completed his testimony, the Trial Attorney requested that the 

discriminatee be permitted to remain in the courtroom, and 

Respondent’s counsel objected unless the GC waived its right to 

recall the discriminatee as a rebuttal witness. The Judge refused 

to allow the discriminatee to remain in the courtroom based on 

his determination that the case would “hinge upon close 

credibility resolutions,” noting that the GC would still be permitted 

to call the discriminatee as a rebuttal witness. (The Authority did 

not rule on this sequestration order). 

NLRB allows limited sequestration to the extent that alleged 

discriminatees should be excluded from overhearing the 

testimony of other witnesses but only with respect to events 

about which the discriminatee testifies or is expected to testify. 

See Medite of New Mexico, Inc., 314 NLRB 1145, 1148-49 

(1994) (discussing rule developed in Unga Painting Corporation, 

237 NLRB 1306 (1978)). Rule is tempered by ALJ’s ultimate 

discretion to modify its application in specific cases. 

 As a practical matter, even if the Trial Attorney believes the 

alleged discriminatee’s unrestricted presence at the hearing 
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would be helpful to prosecute of the case, the Trial Attorney 

weighs the possible disadvantage should credibility be crucial to 

successful litigation of the case. It is possible that the 

discriminatee’s presence during critical testimony may 

unfavorably “color” the ALJ’s assessment of the discriminatee’s 

credibility.

ii. The Technical Advisor: 

ALJs often exempt technical advisors from sequestration orders. 

See, e.g., Veterans Administration and Veterans Administration 

Medical Center, Lyons, New Jersey, 24 FLRA No. 31, 24 FLRA 

255, 256 (1986) (Authority rejected the Charging Party’s claim 

that ALJ erred in permitting Respondent’s technical advisor to 

testify without having been sequestered); compare F.E. Warren 

Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17, 52 FLRA 

149, 154-55 (1996) (Noting that content of excluded testimony 

was not critical to the case, Authority upheld ALJ’s ruling that 

prevented technical advisor from testifying where Respondent 

made no effort to exempt its technical advisor from general 

sequestration order). 

iii. Respondent’s counsel:

If the Trial Attorney has reason to believe that Respondent’s 

counsel plans to testify at hearing, the Trial Attorney advises 

opposing counsel by letter that s/he will move to preclude 

opposing counsel from serving as both a witness and

Respondent’s representative at the hearing. 

Cf. United States Department of the Treasury, Internal Revenue 

Service and United States Department of the Treasury, Internal 

Revenue Service, Austin Service Center, Austin, Texas, 25 FLRA 

No. 4, 25 FLRA 71, 78 (1987) (ALJD) (After describing the ethical 

problems raised by union attorney’s testimony, ALJ denied 

Respondent’s motion to strike all documents filed by union 

attorney, who the GC called as a witness, finding that there was 

no issue because the attorney took no part in the examination of 

witnesses, made no objections, presented no oral argument, and 

because the attorney’s testimony was wholly uncontroverted). 
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 If the GC needs the attorney who acts as counsel for 

party to testify as a witness for the GC, request the party 

to secure an alternate representation to avoid 

compromising the credibility of the witness.

iv. Summary and Expert Witnesses:

(a) Summary witnesses: 

Present testimony based on other 

testimony rather than on own information, 

and are generally exempt from 

sequestration. Use of a summary witness 

is rare in ULP litigation. 

(b) Expert witnesses: 

Are also rarely used, but when called to 

testify at a ULP hearing, sequestration 

may be desirable if credibility is an issue. 

Where an expert witness does not testify 

regarding facts, but rather gives an 

opinion based on the testimony of others, 

there is little purpose served by 

sequestration. It may even assist such an 

expert witness to hear the testimony of 

others because the expert’s testimony will 

then be based on a more accurate 

understanding of the others’ testimony. 

United States v. Bertoli, 854 F. Supp. 975, 

1037-38 (D.N.J. 1994), aff’d in part, 
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vacated in part, 40 F.3d 1384 (3d Cir. 

1994). 

EXAMPLE OF MOTION FOR SEQUESTRATION

Trial Attorney: Your Honor, Counsel for the General 

Counsel moves for the sequestration of all 

witnesses to this proceeding, including any 

technical advisors, based on our expectation that 

credibility of witnesses will be an issue. To this

end, the General Counsel requests the ALJ to 

issue an order to prevent the witnesses from 

hearing the testimony of other witnesses and 

also to prevent the witnesses from discussing 

their testimony with other witnesses until the 

hearing has been closed. 

The sequestration order is ordinarily stated by the ALJ to 

witnesses present in the courtroom, but the ALJ will generally 

request that the Trial Attorney and opposing counsel “police” 

the order by instructing witnesses not to discuss their 

testimony until the hearing is closed. 

2. MOTION TO AMEND COMPLAINT:

See Part 1, Chapter L subsection 2.d. concerning Pre-Hearing Motions.

3. MOTION TO INTRODUCE FORMAL DOCUMENTS:

See Part 1, Chapter N. 
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 The formal documents will be received by the ALJ as a matter of 

course.

4. MOTION TO INTRODUCE JOINT EXHIBITS:

a. Documents which are authentic, relevant and 

material. 

For example, the parties may stipulate to the 

introduction of the applicable collective bargaining 

agreement. 

b. Early introduction of undisputed documents 

expedites the hearing. 

c. Trial Attorney describes joint exhibits briefly on 

the record.

d. Two copies are submitted to the ALJ and copies 

given to each of the parties. 

5. MOTION TO RECEIVE STIPULATION(S):

a. Regulatory authority: 

Section 2423.26(b) permits the ALJ to receive into 

evidence stipulations of fact with respect to any issue. 

b. When to file a motion? 
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Whenever possible, agreed-upon relevant facts are 

introduced into the record in the form of stipulations to 

streamline presentation. 

c. How presented? 

The motion is presented in either written or oral form. A 

written stipulation may be introduced as a joint exhibit 

or may be read into the record. A stipulation which has 

not been reduced to writing may be orally stated on the 

record. In either case, each party must signify 

agreement to the accuracy of the contents and 

admissibility of the stipulation. 

6. MOTION FOR SUMMARY JUDGMENT:

See Part 1, Chapter F. 

7. MOTION FOR COMPLIANCE WITH SUBPOENAS:

See Part 2, Chapter J. 

 Part 1, Chapter F concerning Motion for Summary Judgment; 

Part 1, Chapter L concerning Pre-Hearing Motions; 

Part 1, Chapter N concerning Formal Documents; 

Part 1, Chapter Q concerning Pre-hearing Conference; and 

Part 2, Chapter J concerning Enforcement of Subpoenas.

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Interlocutory Appeals 

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I. INTERLOCUTORY APPEALS

OVERVIEW:

An interlocutory appeal is “[a]n appeal of a matter which is not 

determinable of the controversy, but which is necessary for a 

suitable adjudication of the merits.” Black’s Law Dictionary 815 (6th 

ed. 1990). Section 2423.31(c) governs motions for an interlocutory 

appeal. 

OBJECTIVE:

To provide guidance concerning what circumstances warrant 

seeking permission to file an interlocutory appeal.

1. PRACTICE AND PROCEDURE: 

a. Criteria for requesting permission to file: 

A request for special permission to appeal an ALJ’s

ruling is grounded upon some showing that the moving 

party would be prejudiced by the attendant delays in 

awaiting the ALJ’s decision and then seeking review. 

Typical circumstances giving rise to such “extraordinary 

circumstances” might include an ALJ’s ruling to exclude 

certain evidence or witnesses. When this occurs, it is 

imperative to articulate the manner in which the 

evidence will be corrupted and/or the witness’s memory 

would likely fail if normal administrative delays accrue. 
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b. Procedure to follow when contemplating the filing 

of an interlocutory appeal:

· Coordinate with the RA/RD; and

· Always request a stay of proceedings or 

that the record remain open pending the 

outcome of the interlocutory appeal. 

c. The ALJ grants the motion and certifies the 

contested ruling to the Authority if: 

· The ruling involves an important question 

of law or policy about which there is 

substantial ground for a difference of 

opinion; and 

· Immediate review will materially advance 

completion of the proceeding, or denial of 

review will cause undue harm to a party. 

d. The ALJ denies the motion to file an interlocutory 

appeal: 

After issuance of a decision and recommended order,

the Trial Attorney may file exceptions to the contested 

ruling pursuant to § 2423.40. § 2423.31(c)(2). 

2. CASE LAW:
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Interlocutory appeals are granted only when extraordinary circumstances 

are present. See U.S. Department of Justice and Immigration and 

Naturalization Service, 46 FLRA No. 44, 46 FLRA 492 (1992) 

(extraordinary circumstances not present where ALJ rejected 

Respondent’s motions and granted partial summary judgment). 

See also Veterans Administration, VA Medical Center, San Francisco, 

California, 33 FLRA No. 27, 33 FLRA 242 (1988) (no extraordinary 

circumstances despite Respondent’s assertion that production of a tape 

recording for inspection and copying prior to hearing is essential to ensure 

“judicial fairness and administrative due process”); and 

Department of Transportation and Federal Aviation Administration, 

32 FLRA No. 23, 32 FLRA 158 (1988) (no extraordinary circumstances 

despite Respondent’s claim that the ALJ lacked subject matter jurisdiction 

over the compelling need issues in light of Supreme Court’s decision in 

FLRA v. Aberdeen Proving Ground, 485 U.S. 409 (1988)). 
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 RESERVED 

Trial Motions 

Enforcement of Subpoenas and Sanctions 

Office of the General Counsel 

Litigation Manual 2−0

J. ENFORCEMENT OF SUBPOENAS AND 

 SANCTIONS

OVERVIEW:

Pursuant to § 2423.28(f) the GC may request that the Authority’s 

Solicitor seek enforcement of a subpoena if a party

fails to comply with that subpoena. In addition, a

party that fails to comply with a subpoena, or any 

other regulatory requirement governing pre-hearing 

and hearing matters, is subject to sanctions 

pursuant to § 2423.24(e). 

OBJECTIVE:

To provide guidance concerning the process of enforcement of a 

subpoena, a request for sanctions for non-compliance with a 

subpoena, or a request for sanctions for non-compliance with any 

other regulatory requirement.

1. ENFORCEMENT OF SUBPOENA:

a. Action by Authority’s Solicitor: 

In the event of non-compliance with a subpoena, upon request of 

the party on whose behalf the subpoena was issued, the Solicitor 

shall, on behalf of that party, institute proceedings in the 

appropriate district court for the enforcement of the subpoena, 

unless to do so would be inconsistent with law and the policies of 

the Statute. § 2423.28(f). 

b. Jurisdiction: 
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U.S. District Court for the judicial district in which 

the person to whom the subpoena is addressed 

resides or is served. § 7132(b) of the Statute. 

c. Motion to Continue: 

Where circumstances indicate the advisability of 

seeking enforcement of a subpoena, move to 

continue the hearing to provide the necessary 

time to take such action. 

d. NLRB case law: 

Duly issued subpoenas are enforced if the 

agency is seeking information "not plainly 

incompetent or irrelevant to any lawful purpose." 

 NLRB v. Williams, 396 F.2d 247, 249 (7th Cir. 

1968) (quoting Endicott Johnson Corp. v. 

Perkins, 317 U.S. 501, 509 (1943)). 

2. SANCTIONS FOR NON-COMPLIANCE WITH SUBPOENA:

a. When to move for sanctions at hearing: 

Move for sanctions at hearing when situations arise

where such action is indicated. 

For example, you might request the ALJ to exclude 

testimony and evidence going to the matters raised in 

the documents which Respondent has failed to produce 
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in response to the subpoena. In addition, brief the 

issue to the ALJ. 

b. An ALJ has the discretion to issue protective 

orders and to order sanctions, including drawing 

inferences adverse to the position of the party 

refusing to produce documents. 

Department of Justice, United States Immigration and 

Naturalization Service, United States Border Patrol, El 

Paso, Texas, 40 FLRA No. 64, 40 FLRA 792, 803 

(1991). For a discussion of adverse inferences, see 

Part 2, Chapter L. 

c. Case law: Sanctions and Subpoenaed 

Documents:

Authority case law concerning requests for sanctions, 

in-camera examination of subpoenaed documents by 

the ALJ: 

Department of Commerce, National Oceanic and 

Atmospheric Administration, National Weather Service, 

Silver Spring, Maryland, 30 FLRA No. 19, 30 FLRA 127, 

138-40 (1987) (NWS) (ALJ did not err in not imposing 

sanctions for Respondent’s non-compliance with 

subpoena and agreeing only to an in-camera review of 

the documents by the ALJ because, despite reluctance 

of courts to permit in-camera review of documents, ALJ 

minimized the effect of the in-camera review by 

adequately and accurately describing and clarifying the 
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content so as to provide meaningful, although limited, 

direct and cross-examination and argument to the ALJ). 

NLRB, 38 FLRA No. 48, 38 FLRA 506, 514-16 (1990), 

remanded on other grounds sub nom. NLRB v. FLRA, 

952 F.2d 523 (D.C. Cir. 1992) (relying on NWS, ALJ 

did not abuse discretion in denying sanction and 

adverse inference requests when Respondent refused 

to comply with a protective order because 

memorandum was provided for ALJ’s in-camera review 

and ALJ adequately and accurately described the 

content of the memorandum so as to provide for 

meaningful, direct and cross-examination). 

See also National Park Service, National Capital 

Region, United States Park Service, 38 FLRA No. 86, 

38 FLRA 1027, 1034-35 (1990) (to the same effect), 

remanded on other grounds sub nom. NLRB v. FLRA, 

952 F.2d 523 (D.C. Cir. 1992); and 

Department of Veterans Affairs, Finance Center, Austin, 

Texas, 48 FLRA No. 21, 48 FLRA 247 (1993) (ALJ did 

not abuse discretion by not requiring Respondent to

disclose documents under a protective order, but 

instead examining the documents in-camera and 

adequately and accurately describing them so as to 

provide for meaningful, direct and cross-examination 

and arguments for counsel for the General Counsel and 

the Union). 
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3. SANCTIONS FOR NON-COMPLIANCE WITH REGULATORY REQUIREMENTS 

GOVERNING PRE-HEARING AND HEARING MATTERS:

a. When to move for sanctions at hearing:

Move for sanctions at hearing when situations arise where such action is 

indicated.

b. Situations when Trial Attorney may move for sanctions:

i. When Respondent’s case deviates from 

what was disclosed in the pre-hearing 

disclosure document: 

· Respondent seeks to introduce 

evidence that was not listed on the 

index of documents provided as 

part of the pre-hearing disclosure 

document; 

· Respondent seeks the testimony of 

a witness who was not on the list of 

witnesses provided by Respondent 

as part of the pre-hearing 

disclosure document; and 

· Respondent seeks to rely upon an 

affirmative defense that was not 

disclosed to the Trial Attorney 

before the hearing, or in sufficient 

time to fully and fairly litigate the 

issue raised by the defense. 
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ii. When Respondent fails to meet the 

regulatory time frames for pre-hearing 

disclosure or fails to meet the time frames 

for such disclosure set forth in the ALJ’s 

pre-hearing order (and good cause for 

such late disclosure has not been shown). 

 See Puerto Rico Air National Guard, 

156th Airlift Wing (AMC), Carolina, Puerto 

Rico, 56 FLRA No. 21, 56 FLRA 174, 177 

(2000), petition for review filed sub nom.

American Federation of Government Employees, Local 

3936, AFL-CIO v. FLRA, 00-1417 (1st Cir. filed Mar. 24, 

2000). As a result of the Respondent’s failure to 

participate in pre-hearing disclosure, Authority upheld 

ALJ’s sanctions prohibiting Respondent from introducing 

evidence to the extent that the Respondent challenged 

any of the ALJ’s evidentiary or factual findings). 

iii. When Respondent fails to comply with an 

ALJ’s pre-hearing order. 

iv. When Respondent fails to participate in 

the pre-hearing conference. 

 In each case in which the Respondent has failed to comply with a 

requirement, the Trial Attorney proposes a sanction that directly 

mitigates the harm caused by insufficient notice, e.g., seek to 

preclude witness from testifying who was not on pre-hearing 

witness list; seek to preclude introduction of evidence to prove 

defense not disclosed pre-hearing. 

EXAMPLE OF MOVING FOR SANCTION

Failure to Disclose Affirmative Defense 

 “covered by”
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Trial Attorney: Respondent has failed to disclose the “covered by” 

affirmative defense upon which it relies in defending 

against the § 7116(a)(1) and (5) allegation in the 

complaint. Respondent failed to comply with 

§ 2423.23(c) in not disclosing this defense as required 

in the pre-hearing document dated and served by fax on 

November 11, 1997, nor mentioning this defense during 

the pre-hearing conference that occurred on November 

13, 1997 (see pre-hearing conference summary). 

In promulgating new ULP regulations, the 

Authority stated in the comments that were 

provided as supporting supplementary material 

regarding the pre-hearing disclosure regulation: 

 “early prehearing disclosure will enable the 

parties to knowledgeably and more effectively 

prepare their cases without having to guess 

what evidence or theories others in the 

litigation will offer.” (62 Fed. Reg. 40911, 

40919 (July 31, 1997)). 

Counsel for the General Counsel has been 

prejudiced by Respondent’s failure to timely 

raise this affirmative defense. Because 

Counsel for the General Counsel has not had 

the required time to knowledgeably and 

effectively prepare a case to rebut this defense, 

we request that the Judge sanction the 

Respondent and prohibit the raising of the 

“covered by” affirmative defense at the hearing. 

 Imposition of a sanction is necessary to 

ensure that Respondent’s failure to comply with 

the regulatory requirements is not condoned. 

In all situations where the Respondent has failed to comply with the prehearing requirement to disclose defenses, e.g., Respondent fails to 

disclose “legitimate justification” for taking action in an (a)(2) 

discrimination case, the Trial Attorney would make the same argument. 
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 If the ALJ declines to sanction Respondent, the Trial Attorney 

preserves this issue for appeal to the Authority on exceptions by 

objecting on the record to the ALJ’s decision. 

If the Trial Attorney is caught by surprise, ask the ALJ for a brief 

recess so that the RA or RD can be contacted to provide 

guidance.

 The Authority’s statutory jurisdiction may be raised at any time, 

but the facts upon which the Authority determines it has 

jurisdiction may be challenged only upon timely exception. See

NLRB v. Konig, 79 F.3d 354, 360 (3d Cir. 1996) (Court rejected 

consideration of jurisdictional defense that LPN’s were 

supervisors because that “factual” determination was within 

Board’s purview and was not raised before the Board) (citations 

omitted). 

It is the GC’s position that the failure to raise an affirmative 

defense by a responsive pleading and, as required, the 

Respondent has not raised the defense in a pre-hearing 

disclosure document, results in waiver of that defense. Note, 

however, in civil practice that it has been held that there is no 

waiver if the failure to raise an affirmative defense does not 

cause prejudice, i.e., the defense is raised in reasonable time. 

Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th 

Cir. 1993) (citation omitted) (the purpose of a rule requiring 

Respondent to disclose affirmative defenses is to give the 

opposing party notice of the defense and a chance to rebut it). 

In addition, the Trial Attorney should be aware that unlike the 

Authority’s regulations, no pre-hearing disclosure requirement 

exists under the NLRB’s regulations. Miami Rivet of Puerto Rico, 

Inc., Miami Rivet Co. and Raytech Corp., 318 NLRB 769, 776 

(1995) (cannot force pre-hearing disclosure of defenses). If 

necessary, the Trial Attorney is prepared to point to this 

difference between the Board’s and the Authority’s regulations to 

show prejudice in raising a defense that was not disclosed prehearing. 
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 Part 1, Chapter N concerning Pre-hearing Disclosure; 

Part 1, Chapter P concerning Pre-hearing Order; 

Part 1, Chapter Q concerning Pre-hearing Conference; 

Part 1, Chapter K concerning Petitions to Revoke Subpoena; and 

Part 2, Chapter L concerning Adverse Inference. 
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RESERVED
Trial Evidentiary Matters 

Evidence, in General 

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Litigation Manual 2−0

K. EVIDENCE, in General

OVERVIEW:

Pursuant to § 7118(a)(6) of the Statute, parties in a ULP hearing are not 

bound by rules of evidence whether statutory, common law, or adopted by 

a court.

· Section 2423.31(b) provides that parties are not bound by rules 

of evidence whether statutory, common law or adopted by a 

court. An ALJ may receive any evidence, except that which may 

be excluded on the grounds that it is immaterial, irrelevant, 

unduly repetitious, or customarily privileged. 

· Even though the Federal Rules of Evidence are not binding, they 

offer instructive guidance when dealing with evidentiary disputes. 

A solid understanding of the Rules is indispensable for the 

successful litigator. Any reference to the Federal Rules can be 

persuasive when dealing with objections. 

See 24th Combat Support Group, Howard Air Force Base, Republic of 

Panama, 55 FLRA No. 45, 55 FLRA 273, 283 (1999); (United States 

Customs Service, South Central Region, New Orleans District, New 

Orleans, Louisiana, 53 FLRA No. 67, 53 FLRA 789, 794 (1997) (the 

determination of the matters to be admitted into evidence is within the 

broad discretion of an ALJ and the parties are not bound by the rules of 

evidence); Indian Health Service, Winslow Service Unit, Winslow, Arizona, 

54 FLRA No. 17, 54 FLRA 126, 127 (1998) (ALJ did not abuse discretion 

by denying GC’s Trial Attorney an opportunity to recall a prior witness to 

provide rebuttal testimony); Compare Air Force Flight Test Center, 

Edwards Air Force Base, California, 55 FLRA No. 21, 55 FLRA 116, 120-

21 (1999) (ALJ did not abuse discretion in excluding disputed evidence 

which came into existence after the alleged unilateral changes); with U.S. 

Department of Justice, Immigration and Naturalization Service, 

Washington, D.C., 55 FLRA No. 20, 55 FLRA 93, 97-98 (1999) (Authority 

remanded case to because ALJ abused discretion in refusing to admit 

relevant evidence). 

 Part 2, Chapter D concerning ALJ Involvement and Decorum at 

Hearing; and 
Trial Evidentiary Matters 

Evidence, in General

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Part 2, Chapters S and BB concerning Direct Examination, and 

Cross-Examination where various Fed. R. Evid. are discussed. 
Trial Evidentiary Matters 

Adverse Inference 

Office of the General Counsel 

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2−0

L. ADVERSE INFERENCE

OVERVIEW:

Under certain circumstances, the Trial Attorney requests that an 

ALJ draw an adverse inference.

OBJECTIVE:

To provide guidance concerning when a Trial Attorney requests an 

ALJ to draw an adverse inference.

1. WHEN TO REQUEST AN ADVERSE INFERENCE BE DRAWN:

When Respondent’s counsel fails to call an available witness who is likely 

to have knowledge of a particular matter and who is likely to be favorably 

disposed to the Respondent’s case, or fails to produce documents, 

whether or not subpoenaed by the GC, the Trial Attorney requests that an 

inference be drawn that such testimony would have been adverse to the 

Respondent’s case and consistent with the GC’s case. The request that 

an ALJ draw an adverse inference is made whenever the Trial Attorney 

has the opportunity to do so--at the trial, in the closing argument, and in 

the Argument section of the post-hearing brief but.

2. DRAWING OF ADVERSE INFERENCE IS NOT MANDATORY: 

An abuse of discretion standard applies to reviewing an ALJ’s decision not 

to draw an adverse inference. 

NLRB, 38 FLRA No. 48, 38 FLRA 506, 515 (1990), remanded on other 

grounds sub nom. NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (decision 

whether to draw an adverse inference is discretionary matter for ALJ). 

3. PARTICULAR CIRCUMSTANCES:
Trial Evidentiary Matters 

Adverse Inference 

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2−1

a. Failure to call as a witness:

Internal Revenue Service, Philadelphia Service Center, 54 FLRA No. 72, 

54 FLRA 674, 682 (1998) (Respondent’s failure to call missing 

management witness who was the selecting official to explain the basis for 

nonselection warrants concluding that there was no legitimate justification 

for failure to select); U.S. Department of Commerce, National Oceanic and 

Atmospheric Administration, National Oceans Service, Coast Guard and 

Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 

54 FLRA No. 92, 54 FLRA 987, 1017-18 (1998) (Commerce) (ALJ 

reasonably drew adverse inference from the Respondent’s failure to call 

employee’s second-level supervisor to testify because such testimony 

would not have been merely cumulative, it could have explained what 

his specific role was in the discipline). 

U.S. Department of Justice, Immigration and Naturalization Service, 

51 FLRA No. 75, 51 FLRA 914, 925 (1996) (ALJD) (ALJ drew adverse 

inference from Respondent’s failure to call the deciding official to testify 

concerning alleged discriminatory denial of a performance award); 

Federal Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, 

Pennsylvania, 51 FLRA No. 58, 51 FLRA 650, 671 (1995) (ALJD) (ALJ 

drew adverse inference from Respondent’s failure to call selecting official 

to testify concerning alleged discriminatory denial of promotion); and 

Bureau of Engraving and Printing, 28 FLRA No. 105, 28 FLRA 796, 802 

(1987) (ALJ drew adverse inference from Respondent’s failure to call its 

Labor Relations Specialist to corroborate manager’s denial of (a)(1) 

statements attributed to manager). 

 An adverse inference many not be drawn when a witness’s 

disposition towards one party or the other cannot be reasonably 

assessed. Commerce, 54 FLRA at 1018.

b. Failure of witness to testify regarding a particular matter:

An ALJ may rely on a witness’s failure to testify regarding a particular 

matter to draw an adverse inference regarding that witness. 
Trial Evidentiary Matters 

Adverse Inference 

Office of the General Counsel 

Litigation Manual 

2−2

See U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA No. 127, 55 FLRA 

704, 707-08 (1999) (Authority upheld drawing of adverse inference 

concerning a statement allegedly made by the warden at a meeting when 

the record contained mutually corroborative testimony of two individuals 

who were at the meeting) 

 

c. Failure to produce documents or other evidence:

Department of Commerce, National Oceanic and Atmospheric 

Administration, National Weather Service, Silver Spring, Maryland,

30 FLRA No. 19, 30 FLRA 127, 138-40 (1987) (ALJ may draw adverse 

inference based on Respondent’s refusal to produce subpoenaed 

documents); American Federation of Government Employees, Local 3475, 

45 FLRA No. 47, 45 FLRA 537 n.4 (1992) (to the same effect); Air Force 

Flight Test Center, Edwards Air Force Base, California, 55 FLRA No. 21, 

55 FLRA 116, 121 (1999) (ALJ did not abuse discretion in declining to 

draw any inference from the GC’s failure to produce a tape of a meeting 

allegedly in the GC’s possession where Respondent neither proved the 

existence of the tape nor moved for the ALJ to compel the GC to offer it 

into evidence); Department of Defense, Army and Air Force Exchange 

Service, Fort Eustis, Virginia, 20 FLRA No. 32, 20 FLRA 248, 260 (1985) 

(although noting that an adverse inference “should be drawn from 

Respondent’s failure to present its supervisor,” ALJ declined to do so 

because he questioned the credibility of the GC’s witness and also 

credited a corroborating management witness’s denial that the statement 

was made). 
Trial Evidentiary Matters 

Adverse Inference 

Office of the General Counsel 

Litigation Manual 

2−3

 RESERVED 
Trial Evidentiary Matters 

Official Notice 

Office of the General Counsel 

Litigation Manual 2−0 

M. OFFICIAL NOTICE

OVERVIEW:

Section 2423.31 permits an ALJ to take “official notice of material 

facts when appropriate.” 

OBJECTIVE:

To provide guidance on what the legal concept of “official notice” 

means and when it is used.

1. DEFINITION OF “OFFICIAL NOTICE”:

Official notice is a “broader concept than judicial notice.” U.S. Department 

of the Treasury, Customs Service, Washington, D.C., 38 FLRA No. 74, 

38 FLRA 875, 878 (1990) (Customs Service) (citing Macleod v. 

Immigration and Naturalization Service, 802 F.2d 89, 93 n.4 (3d Cir. 1986) 

and Dayco Corp. v. Federal Trade Commission, 362 F.2d 180, 186 (6th 

Cir. 1966)). Significantly, official notice includes “the acceptance of 

commonly known facts as well as matters within the specialized 

knowledge or expertise of the administrative agency.” Customs Service, 

38 FLRA at 878 (citing 4 Stein, Administrative Law § 25.01 (1986)). 

2. PRACTICE AND PROCEDURE:

a. When is request to take official notice 

requested?

Before and during the hearing. 

b. Who is request made to? 

The presiding ALJ. 
Trial Evidentiary Matters 

Official Notice 

Office of the General Counsel 

Litigation Manual 2−1

c. Why make a request to take official notice? 

The grant of such request for official notice obviates the 

need to introduce evidence as to those facts. 

 Typically, the issue of official notice arises subsequent to the 

hearing where one party requests either the ALJ or the Authority 

to take official notice of certain facts. In making a request for 

such official notice it is important to note the following: 

· Both due process and the APA (§ 556(e)) require that a 

party be provided the opportunity to offer rebuttal

evidence to the noticed fact; and 

· Be wary of opposing counsel’s attempts to use official 

notice as a means to add to the record, e.g., 

attachments to briefs, where such matters were not 

previously presented in a prior proceeding. See

§ 2429.5; but see Customs Service, above. In such a 

situation, file a Motion to Strike. See Part 3, Chapter D, 

which addresses Motions to Strike. 

3. CASE LAW: 

The Authority has endorsed official notice in a variety of circumstances: 

See U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, 

Dallas, Texas, 51 FLRA No. 77, 51 FLRA 945, 953 (1996) (proper to take 

official notice that performance appraisals and administrative 

investigations of patient abuse are contained in a system of records); 

Social Security Administration, San Francisco Bay Area, 51 FLRA No. 7, 

51 FLRA 58, 63 (1995) (proper to take official notice that employee 

awards data is maintained in a system of records); 
Trial Evidentiary Matters 

Official Notice 

Office of the General Counsel 

Litigation Manual 2−2

Social Security Administration, 47 FLRA No. 32, 47 FLRA 410, 411 (1993) 

(proper to take official notice of ALJ decisions, including record and 

transcript in prior case involving same Respondent); 

Social Security Administration, 45 FLRA No. 27, 45 FLRA 303, 307-08 

(1992) (proper to take official notice of D.C. Circuit decision where 

decision arises from same facts); 

Social Security Administration, Baltimore, Maryland, 22 FLRA No. 41, 

22 FLRA 420, 421 n.* (1986) (Authority agreed that ALJ erred in failing to 

take “administrative notice” of another ALJ’s factual findings establishing 

union animus in a related case); Cf. National Park Service, National 

Capital Region, United States Park Police, 48 FLRA No. 127, 48 FLRA 

1151, 1163 n.10 (1993) (rejecting official notice for agency regulations 

which Respondent failed to cite or address in any previous proceedings); 

SBA, 54 FLRA No. 83, 54 FLRA 837, 849-50 (1998) (1- ALJ reasonably 

took official notice of MSPB decision which issued after close of ULP 

hearing where those proceedings had been the subject of substantial 

testimony at the hearing and decision was in “the public domain; and 2- 

Denial of request to take official notice of evidence presented in a different 

case after the close of the ULP hearing); compare Department of Justice, 

U.S. Marshals Service and U.S. Marshals Service, District of New Jersey, 

26 FLRA No. 104, 26 FLRA 890, 897 (1987) (ALJD) (ALJ rejected official 

notice of MSPB and arbitration decision offered by Respondent for 

purposes of witness’s credibility); 

Association of Civilian Technicians, Inc. Rhode Island Chapter and U.S. 

Department of Defense, Rhode Island National Guard, Providence, Rhode 

Island, 55 FLRA No. 70, 55 FLRA 420 (1999) (Authority took official notice 

of technical legislative amendments) 

 Part 3, Chapter D concerning Motions to Strike. 
Trial Evidentiary Matters 

Official Notice 

Office of the General Counsel 

Litigation Manual 2−3

 RESERVED 

Trial Evidentiary Matters 

Offer of Proof 

Office of the General Counsel 

Litigation Manual 2−1

N. OFFER OF PROOF

OVERVIEW:

During the course of the hearing the ALJ makes rulings on 

evidentiary matters. Such rulings 

may be erroneous because 

evidence which should have been 

admitted was excluded. Fed. R. 

Evid. 103 addresses this matter. 

 

OBJECTIVE:

To provide guidance concerning how to preserve the record in the 

event that an ALJ makes an erroneous evidentiary ruling in 

excluding evidence.

1. FED R. EVID. 103:

Rulings on Evidence

(a) Effect of erroneous ruling. Error may not be 

predicated upon a ruling which admits or excludes 

evidence unless a substantial right of the party is

affected, and 

(1) Objection. In case the ruling is one admitting 

evidence, a timely objection or motion to strike 

appears of record, stating the specific ground 

of objection, if the specific ground was not 

apparent from the context; or 

(2) Offer of proof. In case the ruling is one 

excluding evidence, the substance of the 

evidence was made known to the court by offer 

or was apparent from the context within which 

questions were asked. 
Trial Evidentiary Matters 

Offer of Proof 

Office of the General Counsel 

Litigation Manual 2−2

(b) Record of offer and ruling. The court may add any 

other or further statement which shows the character of 

the evidence, the form in which it was offered, the

objection made, and the ruling thereon. It may direct the 

making of an offer in question and answer form. 

2. PRACTICE AND PROCEDURE:

a. When to make an offer of proof: 

When the ALJ sustains an objection to a question or

line of questioning and the witness is prevented from 

answering the question and from testifying on that 

particular matter. 

b. How to preserve issue for appeal--making an 

offer of proof: 

· The customary way of making an offer of 

proof is for the Trial Attorney to state on 

the record what the witness would say if 

the ALJ permitted the witness to answer 

the question and what the Trial Attorney 

expects to prove by the answer to the 

question, and 

· An offer of proof must be specific and 

contain the particulars of the witness’ 

testimony. An offer of proof based on 

conclusions, as opposed to facts, is 

objectionable. 
Trial Evidentiary Matters 

Offer of Proof 

Office of the General Counsel 

Litigation Manual 2−3

EXAMPLE

Setting: The ALJ sustains an objection and 

excludes evidence that GC believes is relevant 

and material. The evidence concerns a 

conversation. 

Trial Attorney: Your Honor, the General Counsel makes 

the following offer of proof: 

"If allowed to testify, GC witness Smith 

would testify that on March 1, 1995, she 

had a conversation with supervisor Jones 

in Jones’ office. During the conversation 

Jones told Smith, ‘you better watch out 

. . . .’" 

 Part 2, Chapter Z concerning Objections.
Trial Evidentiary Matters 

Offer of Proof 

Office of the General Counsel 

Litigation Manual 2−4

 RESERVED 
Trial Evidentiary Matters 

Purloined Documents and Other “Improperly” Obtained Evidence 

Office of the General Counsel 

Litigation Manual 2−1

O. PURLOINED DOCUMENTS 

AND OTHER “IMPROPERLY” OBTAINED EVIDENCE

OVERVIEW:

Part 3, Chapter M of the ULPCHM provides guidance to 

investigating Agents on whether to accept and use evidence that 

may have been improperly obtained or purloined by a party. Such 

matters could include documents obtained by a party or individual 

under “questionable circumstances” and provided to the Region 

during the investigation or other evidence such as a tape recording 

or videotape that may have been surreptitiously recorded without 

the consent of one or both parties. This Chapter reiterates the 

principles contained in the ULPCHM. 

OBJECTIVE:

To provide information about the use of evidence supplied by a 

party which may have been obtained improperly by that party. 

1. CRITERIA FOR DETERMINING WHETHER TO USE SUCH EVIDENCE:

Consider the following in determining whether to introduce documents that 

have been obtained under “questionable circumstances”: 

· An agent of the FLRA never engages in complicity in improperly 

obtaining evidence. If there is evidence of such complicity, the 

RA is immediately notified (or as appropriate the RD). If the 

Region has participated in the process of obtaining such 

information, the Region does not use this material at hearing; 

· Consider whether liability (criminal or civil) will attach to the 

individual who provided the evidence to the Region should the 

evidence be introduced (or an attempt made) at hearing. The 

Region attempts not to embroil itself in a situation in which its 

agents may be called upon to testify in an arbitration, 

administrative, civil or criminal proceedings related to evidence it 

introduced, or attempted to introduce, at hearing; and 
Trial Evidentiary Matters 

Purloined Documents and Other “Improperly” Obtained Evidence 

Office of the General Counsel 

Litigation Manual 2−2

· Whether the cost of introducing (or attempting to introduce) the 

evidence, i.e., negative impact upon the ULP proceeding, is 

outweighed by any benefit to the ultimate aim of the hearing 

process--to determine whether a violation has occurred. 

2. AUTHORITY PRECEDENT: THE AUTHORITY HAS NOT ADDRESSED THIS 

MATTER IN ANY DECISIONS BUT THE FOLLOWING 2 ALJ DECISIONS ARE 

INSTRUCTIVE:

National Labor Relations Board, Region 24, 2-CO-50, ALJD Rpt. No. 5 

(1981) (In a ULP proceeding against the union for surreptitiously taping a 

bargaining session, the ALJ in dicta found that, in deciding that the union 

had violated the Statute, “the National Labor Relations Board has refused 

to admit the tape as evidence in a refusal to bargain proceeding, on the 

ground that such a recording would inhibit severely the willingness of 

parties to express themselves freely, and seriously impair the collective 

bargaining process”). 

U.S. Department of Justice, Immigration and Naturalization Service, 

Border Patrol, Case No. 6-CA-90255, ALJD Rpt. No. 94 (1991) (ALJ

stated in response to the GC’s argument that Respondent’s evidence 

should be given no weight since it was not provided to the Region during 

the investigation: “An Administrative Law Judge is not charged with the 

responsibility of policing investigations and overseeing the collection of 

evidence necessary to prove or disprove the allegations of a charge. 

Absent a showing that evidence was somehow obtained illegally, the 

Administrative Law Judge’s sole function with respect to documentary 

evidence proffered at a hearing is to determine its relevance and legal 

sufficiency”). 

3. NLRB/COURT PRECEDENT:

a. Initial strict exclusionary rule:

Hoosier Cardinal Corp., 67 NLRB 49 (1946) (Board 

agent obtained records from an officer of a cited union 

organization who was secretly a member of a rival 

union and Board indicated it would not consider 
Trial Evidentiary Matters 

Purloined Documents and Other “Improperly” Obtained Evidence 

Office of the General Counsel 

Litigation Manual 2−3

evidence in order “to refrain from any appearance of 

surreptitious dealing with one of the parties”). 

b. Loosening of strict rule: Evidence allowed as 

long as Board Agent not involved in improper 

activity:

Air Line Pilots Association, 97 NLRB 929 (1951) and 

General Engineering, 123 NLRB 586 (1959) (Board 

held that it would allow the introduction of allegedly 

illegally obtained evidence as long as government 

agents were not involved in the taking of the 

documents). 

Cory Coffee Services, Div. of Cory Food Services, Inc., 

242 NLRB 601 (1979) (where Board attorney asserted 

that the purloined document came to Board agents 

during its investigation and that no Board agent 

“obtained it from Respondent’s office”, the ALJ stated 

that he could not find that the Board’s attorney or its 

agents knew these documents had been stolen or that

the Board had any involvement in the taking of the 

documents, and therefore was “unable to conclude that 

the proceedings should be dismissed outright on the

basis that Respondent has been denied due process of 

law or that its rights have been seriously prejudiced by 

the Region’s clandestine use of this ‘purloined 

evidence’”). 
Trial Evidentiary Matters 

Purloined Documents and Other “Improperly” Obtained Evidence 

Office of the General Counsel 

Litigation Manual 2−4

NLRB v. South Bay Daily Breeze, 415 F.2d 360, 365 

(9th Cir.1969) (in upholding Board’s decision court

stated that “where the Board merely accepts and makes 

use of evidence illegally obtained by private individuals, 

exclusion of such evidence is not required by the Act”). 

 ULPCHM, Part 3, Chapter M concerning Improperly Obtained or 

Purloined Information/Evidence
Trial Evidentiary Matters 

Purloined Documents and Other “Improperly” Obtained Evidence 

Office of the General Counsel 

Litigation Manual 2−5

 RESERVED 

General Counsel’s Case 

Burden of Proof 

Office of the General Counsel 

Litigation Manual 2−1

P. BURDEN OF PROOF

OVERVIEW:

Section 2423.32 provides that the GC has the burden of presenting 

the evidence in support of the complaint and also the burden of 

proving the allegations of the complaint by a preponderance of the 

evidence.

OBJECTIVE:

To gain an understanding of the GC’s burden of proof and 

Respondent’s burden of proving any affirmative defenses.

1. GC’S BURDEN:

The burden of proof always rests on the GC to present the evidence in 

support of the complaint, i.e., proving the allegations of the complaint, by a 

preponderance of the evidence. The burden includes the production of 

evidence as well as persuading the trier of fact. This burden never shifts 

to the Respondent. 

See Letterkenney Army Depot, 35 FLRA No. 18, 35 FLRA 113 (1990). 

 Where the complaint, the Respondent’s answer and pre-hearing 

documents, and the parties’ post-hearing briefs establish that the 

Respondent never disputed an allegation in the complaint, the 

GC does not have the burden to prove the allegation. An ALJ 

may not ignore a party’s admission of a material fact just as s/he 

may not resolve issues not encompassed in a complaint. See

U.S. Department of the Air Force, Air Force Materiel Command, 

Wright-Patterson Air Force Base, Ohio, 55 FLRA No. 159, 

55 FLRA 968, 970-71 (1999). 

2. DEFINITION OF PREPONDERANCE OF THE EVIDENCE:
General Counsel’s Case 

Burden of Proof 

Office of the General Counsel 

Litigation Manual 2−2

“Evidence which is of greater weight or more convincing than the evidence 

which is offered in opposition to it; that is, evidence which as a whole 

shows that the fact sought to be proved is more probable than not.” 

Black’s Law Dictionary 1182 (6th ed. 1990). 

3. RESPONDENT’S BURDEN OF PROVING ANY AFFIRMATIVE DEFENSES:

a. The burden of persuasion shifts to the 

Respondent when Respondent raises an 

affirmative defense. 

See, e.g., Federal Emergency Management Agency, 52 

FLRA No. 47, 52 FLRA 486, 490-91 n.2 (1996). 

b. An affirmative defense is a “matter asserted by [a 

Respondent] which, assuming the complaint to 

be true, constitutes a defense to it.” 

Black’s Law Dictionary 60 (6th ed. 1990). 

An example of an affirmative defense raised in a § 

7116(a)(2) discrimination case, concerns a Respondent 

that showed that there was a legitimate justification

for its action and that the same action would have been 

taken even in the absence of protected activity. See

Department of the Air Force, Warner Robins Air 

Logistics Center, Warner Robins Air Force Base, 

Georgia, 52 FLRA No. 58, 52 FLRA 602, 605-06 

(1996). Another example of an affirmative defense is 

the statute of limitations contained in § 7118(a)(4) of the 

Statute. See U.S. Army Armament Research 
General Counsel’s Case 

Burden of Proof 

Office of the General Counsel 

Litigation Manual 2−3

Development and Engineering Center, Picatinny 

Arsenal, New Jersey, 52 FLRA No. 50, 52 FLRA 527, 

532 (1996). 

 

c. Affirmative defenses are waived unless raised in

the pleadings or in a required pre-trial disclosure

document or at trial (only with proper notice--full

and fair opportunity to litigate). 

d. If affirmative defense is raised, the Trial Attorney 

considers: 

i. Whether defense was raised in answer or 

in document provided to satisfy prehearing disclosure requirements; 

ii. If so, the Trial Attorney had sufficient 

notice of Respondent’s defense. Where 

possible, Trial Attorney rebuts 

Respondent’s evidence by contradictory 

or explanatory evidence. 

iii. If not, the Trial Attorney seeks to preclude 

Respondent from relying upon the 

defense. 

See Part 2, Chapter J concerning 

Sanctions for additional discussion. 

 Part 2, Chapter J concerning Sanctions.
General Counsel’s Case 

Burden of Proof 

Office of the General Counsel 

Litigation Manual 2−4

 RESERVED 
General Counsel’s Case 

Opening Statements 

Office of the General Counsel 

Litigation Manual 2−1

Q. OPENING STATEMENTS

OVERVIEW:

Before the trial begins, the parties have the opportunity to make 

opening statements. The Trial Attorney always makes an opening 

statement. 

 

OBJECTIVE:

To provide guidance concerning making an effective opening 

statement.

1. PURPOSE OF OPENING STATEMENT:

To acquaint ALJ and Respondent with nature of GC’s case, GC’s theory of 

violation and what GC’s proof will be. 

2. CHECKLIST FOR AN EFFECTIVE OPENING STATEMENT:

· Be concise, clear and direct; 

· Explain key facts and issues; 

· Discuss remedy being sought; 

· Mention known defenses and how GC will deal with them (e.g., 

credibility, “covered by”); 

· Reveal problems that you know will come up; 

· Do not overstate case; and 

· Do not argue case--opening statement is a short narrative to give 

ALJ an overview of GC’s case. 

3. AS THE PUBLIC PROSECUTOR, TRIAL ATTORNEY ALWAYS MAKES 

OPENING STATEMENT.
General Counsel’s Case 

Opening Statements 

Office of the General Counsel 

Litigation Manual 2−2

 Be ready to answer ALJ’s questions regarding legal theory and 

cases that support or do not support GC’s theory. Always 

respond to questions posed by the ALJ.

EXAMPLE OF OPENING STATEMENT

Your Honor, the General Counsel is alleging that the Respondent violated 

§ 7116(a)(1) and (5) of the Statute by repudiating a negotiated grievance 

settlement agreement. The evidence will show: 

On August 17, 1995, the Union filed a grievance under the negotiated 

grievance procedure for bargaining unit employee Bill Smith, contending that Mr. 

Smith, a GS-14 officer, was due a temporary promotion to a GS-15 for time 

Respondent detailed him to serve as Acting Associate Chief of Respondent’s RO. 

This is a common grievance situation and the parties call grievances of this nature: 

higher-graded duty grievances. 

On August 9, 1996, after investigating the grievance, after several 

discussions with the Union, and after receiving guidance from Respondent’s 

National Office, John Sloan, the Chief, and Tom Jackson, the Associate Chief, of 

the Respondent’s RO, signed a written settlement agreement with the Union in full 

resolution of Mr. Smith’s grievance. 

The negotiated settlement agreement provided that Mr. Smith would 

receive a retroactive temporary promotion to the GS-15 level for the period June 2, 

1991 to July 25, 1992, the time when he served on detail as the Acting Associate 

Chief. 

It took the Respondent one year to decide to settle Mr. Smith’s grievance. 

 We are not here to revisit that decision. We are not here to argue the merits of the 

Smith grievance. 

In October 1996, Respondent notified the Union that it was rejecting the 

Smith settlement agreement. Since then, Respondent has failed and refused to 

comply with the terms of the settlement agreement. The Respondent claims as an 

affirmative defense that the agreement is illegal and has alluded to the Back Pay 

Act. While the Authority has held that an agreement that is violative of law is 

unenforceable (GSA, 50 FLRA No. 28, 50 FLRA 136), there is nothing in the Smith 
General Counsel’s Case 

Opening Statements 

Office of the General Counsel 

Litigation Manual 2−3

settlement agreement that is contrary to law including the Back Pay Act. Parties 

have tried this type of defense before without success. The Authority has rejected 

an after the fact claim that a grievance settlement providing back pay for the 

performance of higher-graded duties is void as contrary to the Back Pay Act. (DLA 

New Cumberland PA, 50 FLRA No. 49, 50 FLRA 282). In that case, the third-step 

deciding official granted a grievance, claiming backpay for higher-graded duties. 

After that, higher-level management repudiated the resolution claiming it did not 

comply with the Back Pay Act as the resolution did not contain a finding that the 

grievants had suffered an “unjustified or unwarranted personnel action . . . 

[resulting] in the withdrawal or reduction of all or part of the pay” (quoting the Back 

Pay Act). On review, the Authority and ALJ rejected this defense finding that the 

grievance settlement was consistent with the Back Pay Act as the third-step 

official’s decision to grant the grievance and awarding backpay constituted the 

required “unjustified action resulting in loss of pay” finding for entitlement to 

backpay under the Back Pay Act. The same applies to the Smith settlement 

agreement. Respondent’s officials, by signing the Smith agreement, determined 

that Smith suffered an unjustified personnel action resulting in a loss of pay (i.e., 

while on detail he performed higher-graded duties without proper compensation). 

Accordingly, as in the DLA New Cumberland case, Respondent’s affirmative 

defense will fail. 

Counsel for the General Counsel respectfully requests that your Honor 

find that the Respondent violated § 7116(a)(1) and (5) of the Statute by repudiating 

the August 9 Smith settlement agreement and order Respondent to carry out and 

abide by the terms of the agreement. Specifically, General Counsel requests the 

award of backpay and interest to Mr. Smith for the period in which he was 

temporarily promoted, as set out in the settlement agreement. In addition, the 

General Counsel requests that Respondent be ordered to post an appropriate 

Notice to All Employees, signed by Robert King, Respondent’s Director, throughout 

Respondent’s ROs. 
General Counsel’s Case 

Opening Statements 

Office of the General Counsel 

Litigation Manual 2−4

 RESERVED 
General Counsel’s Case 

Documents 

Office of the General Counsel 

Litigation Manual 2−1

R. DOCUMENTS

OVERVIEW:

If the parties have not agreed to stipulate all, or a portion, of the 

exhibits for the trial, the Trial Attorney is responsible for ensuring 

that all GC exhibits are properly introduced and received into the 

record. (See Fed. R. Evid. 1002-1004).

OBJECTIVE:

To provide guidance to the Trial Attorney concerning the procedural 

steps involved in introducing a document into evidence and in the 

voir dire of a witness.

1. STEPS INVOLVED IN INTRODUCING A DOCUMENT:

· Generally, before the hearing, the Trial Attorney marks the 

documents for identification with the GC Exhibit Number located 

in the bottom right hand corner of all documents. This is normally 

done in conjunction with the creation of an exhibit list. 

Documents can, of course, be marked at the hearing and the 

court reporter can be requested to mark the exhibits. The Trial 

Attorney needs to be flexible; 

· Copies go to: 

· The ALJ (to go to the court reporter at end of hearing); 

· The court reporter; 

· Respondent’s counsel; and 

· Other parties. 

· Authentication of a document by the testimony of the witness; 

· Offering of document into evidence; 
General Counsel’s Case 

Documents 

Office of the General Counsel 

Litigation Manual 2−2

· Respondent’s counsel is permitted to examine document and to 

make any objections to the document. ALJ may allow voir dire

of the witness at this time; 

· Trial Attorney’s response to any objection to the introduction of 

the document into the record. See Part 2, Chapter Z concerning 

Objections; 

· ALJ rules on admissibility of document; 

· If admitted into evidence, continue questioning witness on direct 

examination. See Part 2, Chapters S and BB concerning Direct 

and Cross-Examination; and 

· If document is rejected, request that it be placed in the rejected 

exhibit file. 

2. AUTHENTICATION:

Before any writing (document) may be received in evidence, it must be 

“authenticated”--a foundation sufficient to support a finding that the 

document is genuine and what it purports to be must first be laid. Fed. R. 

Evid. 901. 

3. CONTROL OF DOCUMENTS- -THE TRIAL ATTORNEY:

a. Maintains control of documents at all times 

during the hearing. 

b. Routinely follows a method with regard to the 

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General Counsel’s Case 

Documents 

Office of the General Counsel 

Litigation Manual 2−3

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General Counsel’s Case 

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Office of the General Counsel 

Litigation Manual 2−

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Office of the General Counsel 

Litigation Manual 2−

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Office of the General Counsel 

Litigation Manual 2−8

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4. REJECTED EXHIBITS:

a. Are placed in a rejected exhibit file. 
General Counsel’s Case 

Documents 

Office of the General Counsel 

Litigation Manual 2−9

b. Two copies of such documents are also given to 

the court reporter, who sends the rejected exhibit 

file with the documents received into evidence 

and the transcript to the Region. 

 In order to persuade the ALJ to reverse his/her decision and to 

allow a document into evidence, or to argue before the Authority 

that the document should have been entered into the record, the 

document itself is necessary. Do not withdraw the request to 

enter the document; rather, it should always be placed in the 

rejected exhibit file. If the ALJ does not do this automatically, the 

Trial Attorney requests that the document be placed in the 

rejected exhibit file. 

5. USE OF DOCUMENTS OR TESTIMONY AND BEST EVIDENCE RULE:

If available, it is generally better to use the document itself rather than 

testimony about the document. Once the document is received into the 

record, the witness is not asked to read the document. ALJs will routinely 

sustain objections to these types of questions because the document is 

already in the record and speaks for itself. This does not mean, of course, 

that a witness cannot be questioned about the document, such as 

purposes of the document, its relationship to other correspondence and 

the sequence of events at issue. 

6. Example of Introduction of Document:

Trial Attorney: Let me show you what has been marked for 

identification as GC Exhibit 10. Do you recognize this 

document? 

Witness: Yes. 

Trial Attorney: Please state the circumstances when you first saw GC 

Exhibit 10. 
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Witness: It came in the regular mail delivery at the union office. 

We date stamp everything that is delivered to the union 

office; this is our date stamp and it says January 2, 

1997. 

Trial Attorney: Do you know who sent it to you? 

Witness: Yes. This is from the Commander; this is his signature. 

 I get documents from him all the time. Also, we had 

discussed this issue over the holidays and he told me 

he was sending a letter. 

Trial Attorney: I would like to enter this document into the record as GC 

Exhibit 10. 

 To avoid confusion in the record, remember to refer to Exhibits 

by their correct identification, such as GC Exhibit 10; Joint Exhibit 

2; or Respondent’s Exhibit 4 during any examination of a witness 

with regard to the document. 

7. VOIR DIRE:

Is often used with expert testimony as a tool to cast doubt on the witness’ 

opinion testimony. Parties most often use voir dire in administrative 

hearings with regard to the introduction of documents where there is doubt 

as to the existence of facts supporting the foundation for admission of 

evidence. 

If a Respondent has not laid a proper foundation, the Trial Attorney has 

two alternative approaches: 

· Object to the admission of any document on the basis that a 

proper foundation has not been laid, or 

· Request ALJ’s permission to voir dire the witness. With an 

objection, Respondent’s counsel and the witness may be able to 

rephrase their questions and responses to develop the specific 

information needed to meet the objections and allow the 

document into evidence. Responses under voir dire may elicit 
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more specific information for the basis of any objection. Even if 

the document is admitted into evidence, the response to voir 

dire may present adequate information to argue on brief the 

credibility and usefulness of such evidence. 

Another use of voir dire is when, after a break in Respondent’s 

direct examination, the Trial Attorney voir dires the witness 

concerning a possible breach of a sequestration order (see 

section 9 below for an example). 

8. EXAMPLE OF VOIR DIRE:

Trial Attorney: Your Honor, I request permission to voir dire the 

witness. 

ALJ: Granted. 

 Respondent’s counsel may object; be prepared to state basis of 

your request for voir dire, such as to examine this witness 

regarding his specific knowledge of how the document was 

created.

Trial Attorney: Let me show you what has been marked for 

identification as Respondent’s Exhibit 5. Did you 

prepare this document? 

Witness: No, but I told the Agency at the Headquarters level that 

we would need a document to show the bargaining 

history. I know that they assigned John Lewis to look 

through the copies of the handwritten notes that the 

former Labor Relations Director took during the 1982 

negotiations. 

Trial Attorney: Do you know how this document was created? 

Witness: I know I told them to look through the Director’s notes 

and to compile this data based on that. 

Trial Attorney: Did you look at the notes yourself? 
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Witness: Yes, but I couldn’t read the Director’s handwriting. Mr. 

Lewis has had much more experience than me with 

reading bad handwriting and I know that he didn’t have 

any trouble. 

Trial Attorney: So, you didn’t look at the documents that were the basis 

of this exhibit? 

Witness: No. 

Trial Attorney: And were you present at the 1982 negotiations? 

Witness: No. 

Trial Attorney: Did you talk to the Director about these 1992 

negotiations or his handwritten notes? 

Witness: No. He has been dead for 6 years and we didn’t talk 

that much before he died. 

Trial Attorney: Do you know what this exhibit actually says? 

Witness: All I know is that I needed something that would help me 

and I got it. 

Trial Attorney: Your Honor, I object to the introduction of this document. 

 The Respondent has failed to adequately authenticate 

this document. This witness has no personal knowledge 

of the creation of this document and cannot vouch for its 

accuracy. 

ALJ: Objection sustained. Exhibit rejected. 

9. EXAMPLE OF VOIR DIRE TO EXAMINE A WITNESS AFTER A BREAK IN 

RESPONDENT’S DIRECT EXAMINATION, CONCERNING A POSSIBLE 

BREACH OF THE SEQUESTRATION ORDER:
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Trial Attorney: Your Honor, without attempting to impugn the integrity of 

Respondent’s counsel, a question has arisen 

concerning a breach of the sequestration order during 

the break. Therefore, I request that I be allowed to 

examine this witness under voir dire with regard to 

actions that occurred during the break. 

ALJ: Granted. 

Trial Attorney: Were you present in the sequestration room during this 

last break? 

Witness: Yes. 

Trial Attorney: Were witnesses for both the Activity and the Union

present in the break room? 

Witness: Yes, at first--but then our lawyer asked all the Union 

witnesses to leave. And they did. 

Trial Attorney: Was Mr. Smooth, the Activity’s representative, also 

present in the sequestration room? 

Witness: Yes. 

Trial Attorney: Did he give a rendition of the individual testimony that 

had been presented by witnesses in this proceeding?

Witness: Yes. 

Trial Attorney: Did he ask you specific questions relating to the earlier 

testimony? 

Witness: Yes. 

Trial Attorney: Did you answer his questions? 

Witness: Yes. 
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Trial Attorney: Did other witnesses also answer his questions? 

Witness: Yes. 

Trial Attorney: So all five witnesses for the Activity were present in this 

room and all five heard the Activity’s lawyer discuss 

previous testimony and participated in the discussion. 

Witness: Yes. 

Trial Attorney: Your Honor, based on this information, it appears that 

the Respondent has violated the sequestration rule. 

Therefore, I request that this be considered in 

determining the credibility of the testimony presented by 

Respondent. 

 Part 2, Chapter H concerning Motions and Sequestration of 

Witnesses; and 

Part 2, Chapter Z concerning Objections. 
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Direct Examination

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Litigation Manual 2−1

S. DIRECT EXAMINATION

OVERVIEW:

Direct examination is the most important part of the trial. It is during 

this phase of the trial where the Trial Attorney establishes the GC’s 

case-in-chief.

OBJECTIVE:

To provide guidance on the organization of direct examination 

which includes the objectives of direct examination, structuring the 

questions, what to avoid, and techniques to use to elicit testimony.

1. ORGANIZING THE DIRECT EXAMINATION:

· Introduce the witness; 

· Establish witness credibility; 

· Elicit information from witness needed to prove or corroborate the 

elements of GC’s case; 

· Elicit information from witness to refute proof or credibility of 

Respondent’s case; 

· Elicit facts that support accuracy and credibility of witness; and 

· Elicit evidence that is not helpful to case, in least harmful 

manner, to blunt Respondent’s cross-examination. 

2. STRUCTURING THE QUESTIONS:

a. Testimony must show that evidence is: 

· Relevant--probative of a fact in issue; 

 
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· Competent--sufficient foundation to be 

admissible; and 

· Material--immediate to the facts in issue. 

b. Sample Direct:

i. Introduction--questions to introduce and 

calm the witness: 

· What is your name? 

· Where do you work? 

· How long have you worked there? 

· What is your position? 

 

ii. Background--questions to establish 

witness is familiar with subject matter. 

iii. Body of Direct--the substantive part of the 

examination where the witness in his or 

her own words tells what s/he knows 

about the case. 

iv. Format of questioning--Question and 

Answer Technique (i.e., who, what, 

where, and how): 

· Who was present at the meeting? 
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· Where was the meeting held? 

· What was said at the meeting? 

· Then what happened? 

· Are you familiar with the leave 

system at your facility? 

· Describe how the leave system 

works. 

 The benefit of the Q & A format is that short, simple, and 

direct questions are easy to answer to structure the 

testimony so that key points are covered. 

v. Format of questioning--Narrative 

“Tell the Judge in your own words what 

happened . . . and then what happened.” 

 Some attorneys favor the narrative approach because it 

permits the witness to tell his/her story in a natural and 

convincing manner. To be used successfully, however, 

the witness must be confident and articulate, and s/he 

must cover key points without prodding. Be aware that 

opposing counsel may justifiably object on the basis that 

narrative testimony does not allow opportunity to 

preclude, by objection, inadmissible testimony. 

If narrative questioning is used, the Trial Attorney 

carefully listens to the testimony and interjects a
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Litigation Manual 2−4

clarifying question if the witness does not respond

properly to the question. Further, the attorney checks 

notes to ensure that the witness covers all points. If not, 

the Trial Attorney elicits the testimony with appropriate 

questions.

vi. Leading Questions: 

· Suggest the answer counsel 

desires, e.g., “Isn’t it true ...?” 

“Were you ...?” “Did you ...?” 

· Generally are not permitted on 

direct examination. 

· Generally are not helpful or 

advisable during direct because 

testimony is perceived as coming 

from the attorney instead of the 

witness--may also confuse witness; 

· Are permissible: 

· To cover background 

introductory matters; 

· To cover uncontested 

matters; 

· To establish a place in time; 
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Litigation Manual 2−5

· To examine a hostile or 

adverse witness; 

· To examine a confused 

witness; and 

· To establish necessary 

evidentiary foundations, e.g., 

was exhibit created in 

ordinary course of business? 

3. WHAT TO AVOID ON DIRECT:

· Compound questions--two questions hooked together--are too 

confusing to answer; 

· Questions that call for speculation--e.g., “What would have 

happened if. . . ?” are objectionable; and 

· Verbal Static--echoing the witness’ answer--e.g., “Ok”; “all right,” 

“thank you,” “uh-huh,” “I see.” These are distracting and add 

nothing to your presentation. 

4. TECHNIQUES TO ELICIT TESTIMONY WHEN WITNESS CANNOT RECALL 

INFORMATION SOUGHT:

a. Refreshing recollection--Fed. R. Evid. 612, as it 

relates to FLRA proceedings, provides in 

relevant part:

 Writing used to refresh memory 

Except as otherwise provided in criminal proceedings 

by § 3500 of title 18, United States Code, if a witness 
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Direct Examination

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Litigation Manual 2−6

uses a writing to refresh memory for the purpose of

testifying, either - 

i. while testifying, or 

ii. before testifying, if the court in its 

discretion determines it is necessary in the 

interests of justice, 

an adverse party is entitled to have the writing produced 

at the hearing, to inspect it, to cross-examine the

witness thereon, and to introduce in evidence those

portions which relate to the testimony of the witness. If 

it is claimed that the writing contains matters not related 

to the subject matter of the testimony the ALJ shall 

examine the writing in camera, excise any portions not 

so related, and order delivery of the remainder to the 

party entitled thereto. Any portion withheld over 

objections shall be preserved and made available to the 

FLRA in the event of an appeal. If a writing is not 

produced or delivered pursuant to order under this rule, 

the ALJ shall make any order justice requires. 

 Questions to refresh a recollection:

· Determine that the witness cannot 

recall the information sought; 

· Ask the witness whether there is a 

writing or object that would refresh 

his/her memory; 
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· Tender the writing or object to the 

witness; 

· Determine whether the witness’ 

review of the writing or object 

refreshes his/her memory; 

· Determine that the recollection is 

independent of the writing or 

object; and 

· Once the recollection is refreshed, 

take writing or object back from the 

witness and continue with the 

examination. 

 Any object or writing can be used to refresh a witness’s 

recollection and the document does not have to be admissible. 

The Trial Attorney does not introduce the writing or object into 

evidence because the witness’s testimony, not the item used to 

refresh the witness’s recollection, is the evidence to be 

considered by the fact-finder. 

The adverse party has the right to examine the writing or object 

for cross-examination and to introduce the writing or object into 

evidence. 

EXAMPLE OF REFRESHED RECOLLECTION
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Direct Examination

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Litigation Manual 2−8

Setting: Witness, after prodding with the leading questions, cannot recall 

the details of a material conversation with management 

representative Jones. 

Q: Can you recall what was said during this conversation? 

A: No. 

Q: Is there anything that would refresh your recollection of this 

conversation? 

A: Yes, the affidavit I gave the Authority. 

Q: Your Honor, may I hand the witness his affidavit? 

ALJ: Proceed. 

After witness finishes reviewing the affidavit-- 

Q: Did your review of your affidavit refresh your recollection of this 

conversation? 

A: Yes. 

Q: Can you now tell us what was said during this conversation? 

A: Yes. 

Trial Attorney: Let the record reflect that the witness has returned his 

affidavit to the GCQ: What was said during this conversation? 

A: Jones said. . .. 

b. Past recollection recorded--Fed. R. Evid. 803(5)

Hearsay Exception: 

Recorded recollection. A memorandum or 

record concerning a matter about which a 
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witness once had knowledge but now has 

insufficient recollection to enable the witness to 

testify fully and accurately, shown to have been 

made or adopted by the witness when the matter 

was fresh in the witness’ memory and to reflect 

that knowledge correctly. If admitted, the 

memorandum or record may be read into 

evidence but may not itself be received as an 

exhibit unless offered by an adverse party. 

Questions to introduce evidence of past 

recollection recorded: 

· Determine that the witness cannot 

recall the information sought, even 

with the assistance of written 

records or documents; 

· Determine that the witness once 

had knowledge of the event 

referred to in the writing; 

· Determine that the writing was 

prepared by or adopted by the 

witness when the information was 

known to him/her and that it 

accurately reflects his/her 

knowledge; 

· The writing may then be read into 

the record; but 
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· Only the adverse party may 

introduce the writing into evidence 

as an exhibit. 

EXAMPLE OF PAST RECOLLECTION RECORDED

Setting: Same as above, but the witness after 

reviewing his affidavit cannot recall what was 

said during his conversation with Jones. 

Q: After reviewing your affidavit, can you now recall 

what was said during this conversation? 

A: No. 

Q: Did you once have knowledge of this 

conversation? 

A: Yes. 

Q: When was that? 

A: When I gave my affidavit. 

Q: On what date was your affidavit prepared? 

A: May 15, 1995. 
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Q: When was the conversation with Jones? 

A: March 1, 1995. 

Q: When you gave your affidavit was your 

conversation with Jones fresh in your mind? 

A: Yes. 

Q: Did you review your affidavit before you signed 

it? 

A: Yes. 

Q: To ensure it was accurate and complete? 

A: Yes. 

Q: Does your affidavit accurately reflect your 

knowledge of what was said during your 

conversation with Jones? 

A: Yes it does. 

Trial Attorney: Your Honor, I request that the 

witness be allowed to read into the record 

that part of his affidavit concerning his 

conversation with Jones. 

ALJ: Proceed. 
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Witness: “Jones told me . . . .” 
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 RESERVED 

General Counsel’s Case 

Jencks Act 

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T. “JENCKS’ ACT” 

 (PRODUCTION OF WITNESSES’ STATEMENT AT HEARING)

OVERVIEW:

For purposes of cross-examining the GC’s witnesses, upon 

Respondent’s request, the Trial Attorney turns over written 

statements obtained from that employee-witness.

OBJECTIVE:

To provide general information concerning the evolution of the 

Jencks’ rule in criminal law and how it has been adapted in 

administrative law; what documents are governed by this rule and 

the corresponding practice and procedure; and application of the 

rule to Respondent’s witness statements (reverse Jencks Rule).

1. BACKGROUND (CRIMINAL LAW):

a. Jencks v. United States, 353 U.S. 657 (1957) 

(Jencks): 

A criminal trial in which two government witnesses 

testified about written reports they had made to the FBI 

concerning the defendant’s illegal conduct. The 

witness’s statements related to Jencks’ alleged false 

swearing in an affidavit given to the NLRB concerning 

his affiliation with the Communist Party. 

Jencks’ defense counsel asked for the statements and 

was refused; on appeal the Supreme Court reversed 

the Jencks conviction saying that the defense had a

right to such documents if the following two criteria were 

met: 
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· There was a demand by the defense for 

production of specific statements possessed by 

the Government in order to see them and 

determine what may be made of them, and 

· The demand was for the statements of actual 

witnesses as opposed to non-witness informants. 

b. The Jencks Act (18 U.S.C. § 3500) (1994):

i. Applies to all criminal proceedings (Fed. 

R. Crim. P. 26.2) and has been held to 

apply to administrative proceedings (See

Section 2 below). 

ii. States that no statements of witnesses in 

possession of the Government are 

available until after witness has testified 

on direct examination. The Trial Attorney 

need not provide statement if the witness 

is not going to testify. 

iii. Allows the defendant to move for 

production of statements (after direct 

examination by the Government) which 

relate to the subject matter of the 

proceedings and for the presiding judge to 

determine what shall be released to the 

defendant. 
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iv. Allows for sanctions if statement not 

produced. 

v. Defines the term “statement” to mean: 

(a) A written statement made by the 

witness and signed or otherwise 

adopted or approved by him/her; 

(b) A stenographic, mechanical, 

electrical, or other type of 

recording, or a transcription thereof, 

which is a substantially verbatim 

recital of an oral statement made 

by said witness, and recorded 

contemporaneously with the 

making of such oral statement; or 

(c) A statement, however taken or 

recorded, or a transcription thereof, 

if any, made by said witness to a 

grand jury. 

2. ADMINISTRATIVE PROCEEDINGS--CASE LAW:

a. Harvey Aluminum v. NLRB, 335 F.2d 749 (9th 

Cir. 1964):
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Applied “rule” of Jencks Act to NLRB proceedings 

because “the law under which these agencies operate

prescribe[s] the fundamentals of fair play . . .,” citing 

Jencks, above. 

b. NLRB v. Clement Bros., 407 F.2d 1027 (5th Cir. 

1969):

Applied Jencks’ Rule only to statements of witnesses 

not of every individual who gave statement to the 

NLRB. 

c. Stride Rite Corp., 228 NLRB 224 (1977):

Jencks’ Rule does not apply to GC’s notes and memos

of conversations with witnesses absent a showing that 

the witnesses adopted or approved the notes. 

d. Caterpillar Inc., 313 NLRB 626 (1994): 

ALJ must excise portions of the affidavit that do not 

relate to the matters to which the witness testified on or 

to matters raised by the pleadings. 

e. NLRB v. Champion Labs. Inc., 99 F.3d 223 (7th 

Cir. 1996):

Under the Jencks’ Rule, a Charged Party has access to 

pre-trial statements of a government witness only after 

witness has testified. If employer obtained affidavit 
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before trial, it could effectively discourage employees 

from testifying and thereby frustrate the NLRA. 

f. North American Rockwell Corp. v. NLRB, 389 

F.2d 866 (10th Cir. 1968):

Jencks’ Rule does not require the prosecutor to turn 

over any exculpatory evidence uncovered during the 

investigation. It is limited to the disclosure of pre-trial 

statements, after witness has testified, for crossexamination. 

3. FLRA CASE LAW:

In Department of the Treasury, Internal Revenue Service, Memphis 

Service Center, 16 FLRA No. 100, 16 FLRA 687, 687 n.1 (1984) 

(Treasury), the Authority stated: 

The Charging Party excepted to the Judge’s 

ruling permitting disclosure by the General 

Counsel to the Respondent, for purposes of 

cross-examination, of written statements 

previously obtained from employees to support 

issuance of the complaint, after such witnesses 

had testified at the hearing. The Judge relied 

on the “Jencks Rule” as set forth by the U.S. 

Supreme Court in Jencks v. United States, 

353 U.S. 657 (1957). The Authority specifically 

adopts the Judge’s ruling, for the reasons she 

stated, noting that the “Jencks Rule” has been 

held applicable to administrative hearings. See

Communist Party of the United States v. 

Subversive Activities Control Board, 254 F.2d 
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314 (D.C. Cir. 1958); NLRB v. Adhesive Prods. 

Corp., 258 F.2d 403 (2d Cir. 1958). 

SBA, 54 FLRA No. 83, 54 FLRA 837, 848-49 (1998) (citation omitted) (ALJ 

properly denied post-hearing motion for documents under Jencks because 

documents could only be under during cross-examination and ALJ denied 

request to reopen record). 

See also 62 Fed. Reg. 40911, 40913 (July 31, 1997) (maintenance of 

Jencks rule endorsed in Treasury). 

4. PRACTICE AND PROCEDURE:

a. Respondent’s rights and responsibilities: 

· GC has no obligation to advise 

Respondent of its Jencks rights; 

· Respondent does not have an automatic 

right to have GC witness affidavits or 

statements produced; 

· Respondent must request the statement 

after each witness testifies for the GC and 

before Respondent begins crossexamination of the witness. Respondent 

waives right to GC statements if it makes 

request after the witness has been crossexamined and excused, Army Aviation 

Center, 216 NLRB 435 (1975), or after 

Respondent is well into its crossexamination of the witness. I-O Services, 

218 NLRB 566 (1975); and 
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· Only provide that which was requested. 

For example, usually the Respondent 

asks only for affidavits--provide only the 

affidavits, if any. Do not provide other 

documents, such as confirming letters 

unless specifically asked for. 

 

b. In addition to GC affidavits the Jencks’ Rule 

applies to: 

· Any statement provided the GC by a 

witness provided the witness signed or 

adopted or approved the statement; and 

· A document that has been incorporated 

into a witness statement (e.g., instead of 

going into background facts in the 

statement the witness directs the FLRA to 

review his statement in a prior case or, 

instead of detailing the remarks made in a 

letter, the witness specifically incorporates 

the letter into the statement). 

 If one statement is taken for multiple cases, but only one of the 

cases is the subject of the complaint, the Trial Attorney prepares 

a sanitized version for Respondent’s counsel (i.e., obliterating the 

facts or contentions in the other cases, if possible) and maintains 

a “clean” copy for the ALJ’s review, in camera, in case the 

Respondent challenges the sanitization. 
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c. When turning over that which is requested, state

on the record that GC is giving a copy of 

statement to Respondent’s counsel. 

d. Request that statement be returned after 

Respondent’s counsel has finished crossexamination and indicate on the record that you 

have received it back. Respondent does not 

keep GC statements or make a copy of them. 

 However, the Jencks’ Act contains no provision regarding the 

return of a witness’s 

statements must be 

returned to the 

Government. 

United States v. 

Harloff, 826 F. 

Supp. 675, 676 

(W.D.N.Y. 1993). 

Compare United 

States v. 

Badalamenti, 626 F. 

Supp. 655 (S.D.N.Y. 

1985) (denial of 

return of Jencks 

materials directly 

following crossexamination of 

witness to whom 

materials related) 

with United States v. 

Fried, 1989 WL 

88495 (6th Cir. 

1989) (court granted 

similar request for 

the return of Jencks 

materials following 

their use at trial). 
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Thus, it is within the 

ALJ’s discretion to 

determine when 

Jencks materials 

must be returned to 

the Trial Attorney.

 

5. “REVERSE” JENCKS--APPLICATION TO RESPONDENT’S WITNESS 

STATEMENTS:

If you are aware that Respondent, during its “investigation” of the ULP 

charge, obtained pre-trial statements from its witnesses, ask for this 

statement(s) before you cross-examine Respondent’s witness. If 

Respondent’s counsel confirms that its witness gave a statement, ask that 

it be produced for your use in cross-examining the witness. In response to 

Respondent’s objection, point out that Fed. R. Crim. P. 26.2, which 

implemented the Jencks’ requirements, requires that statements of 

defense witnesses be turned over to the Government. Moreover, Jencks 

itself covers statements in the hands of the “Government” and 

Respondent is the “Government.”
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Adverse or Hostile Witnesses, Rule 611(c)

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U. ADVERSE OR HOSTILE WITNESSES, RULE 611(c) 

OVERVIEW:

Fed. R. Evid. 611(c) of the Federal Rules of Evidence, permits a 

party to call an “adverse or hostile” witness during that party’s own 

case and to examine such witness as if on cross-examination. 

Included under this rule are all persons who are identified with an 

adverse party.

OBJECTIVE:

To provide guidance concerning the criteria the Trial Attorney 

considers in determining whether to invoke Rule 611(c) in the 

questioning of a witness. 

1. RULE 611(c): WHAT IT PROVIDES:

Leading questions should not be used on the direct examination 

of a witness except as may be necessary to develop the witness’ 

testimony. Ordinarily leading questions are permitted on crossexamination. When a party calls a hostile witness, an adverse 

party, or a witness identified with an adverse party, interrogation 

may be by leading questions. 

2. CRITERIA FOR USE OF RULE 611(C):

· The 611(c) witness is most often used to set out definitively the 

Respondent’s defenses, particularly defenses to a discrimination 

allegation. The Trial Attorney uses this method to commit or “pin 

down” the witness in areas which are vulnerable to attack. 

For example, once a selecting official who is called as a 611(c)

witness has testified that an alleged discriminatee was not 

selected for promotion solely because of poor work attendance, 

the Trial Attorney can present evidence to counter this assertion, 

and the selecting official will not be able to later testify credibly 

that the nonselection was also based on poor work performance. 
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· A 611(c) witness is sometimes called early in the case to secure 

admissions. This can occur when, before other witnesses and 

evidence are presented, the 611(c) witness is unaware of the 

significance of a particular fact or point of his/her testimony to the 

GC’s theory of the case. 

· Use of a 611(c) witness may be necessary if the information is 

peculiarly within the Respondent’s knowledge, or to identify 

exhibits such as letters or documents which can be identified only 

by the Respondent. 

 Caution is exercised in the use of 611(c) witnesses. Where GC 

witnesses can establish particular facts, 611(c) witnesses are not 

normally used. Unnecessary use of a 611(c) witness can impair 

the advantage of discrediting a witness upon cross-examination 

or by rebuttal. 

3. THE OUTLINE FOR QUESTIONING A 611(C) WITNESS:

· Is prepared in detail; 

· Reflects a definite objective in calling the witness and shows how 

to obtain what testimony is desired of that witness; and 

· Contains questions that are very explicit. 

 For example, when asking for the reason for the discipline in a 

discrimination case, the Trial Attorney emphasizes that s/he is 

asking for all reasons for the discipline. Any attempts at evasive 

testimony are met directly by motions to strike and a repetition of 

the questions to get direct answers. The Trial Attorney does not 

ask about 7116(a)(1) matters unless there are definite reasons 

for believing the witness will admit the actions which are alleged 

as 7116(a)(1) violations. The Trial Attorney remembers that the 

611(c) witness is called for a limited purpose and quits when that 

purpose has been met.

4. HOW TO PUT A HOSTILE WITNESS ON THE STAND:

After calling the witness, there are two options: 
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Adverse or Hostile Witnesses, Rule 611(c)

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Litigation Manual 2−2

· The Trial Attorney can declare the witness hostile under Rule 

611(c) and request permission from the ALJ to cross-examine 

the witness. 

· The Trial Attorney can begin interrogation of the witness using 

direct examination techniques, and then gradually change to 

cross-examination of the witness. 

In either case, whether or not the Trial Attorney can cross-examine a 

witness under 611(c) is solely up to the discretion of the ALJ. The ALJ 

may not allow the Trial Attorney to declare the witness hostile or adverse 

at the beginning of the witness’ testimony, and may require the Trial 

Attorney to demonstrate that the witness is hostile or adverse to the GC’s 

case. In this situation, the Trial Attorney asks the witness questions in 

order to establish that the witness is an agent of an adverse party, or 

identified with an adverse party, or so unresponsive to the Trial Attorney’s 

questions as to demonstrate hostility. 

5. THE UNWILLING OR BIASED WITNESS:

After establishing that the witness is not responsive to your questions, 

request the ALJ to allow you to ask leading questions as if the witness 

were adverse or hostile. 

This may occur, for example, when a person who is now a supervisor but 

was a unit employee when the alleged ULP occurred. 

 Part 2, Chapter CC concerning Impeachment of Respondent’s 

Witnesses.
General Counsel’s Case 

Adverse or Hostile Witnesses, Rule 611(c)

Office of the General Counsel 

Litigation Manual 2−3

RESERVED
General Counsel’s Case 

Expert Testimony

Office of the General Counsel 

Litigation Manual 2−0

V. EXPERT TESTIMONY

OVERVIEW:

Fed. R. Evid. 701-706 allow for the admission of testimony of expert 

witnesses, i.e., witnesses with scientific, technical or other 

specialized knowledge. The Trial Attorney may have the need to 

call an expert to prove the allegations in the complaint.

OBJECTIVE:

To remind the Trial Attorney of the potential for the use of expert 

witnesses and to provide resources for further study if the attorney 

must deal with an expert witness. 

1. WHEN TO CALL AN EXPERT WITNESS:

Although use of an expert witness is rare, there are specific circumstances 

under which the calling of an expert may be appropriate. Generally, there 

are 3 reasons for having an expert witness testify: 

· As a fact witness; 

· As a witness to explain principles in order that the trier of fact can 

apply those principles to the facts (e.g., a personnel expert); 

and/or 

· As a witness to evaluate the facts. 

2. PROCEDURE FOR ARRANGING FOR EXPERT WITNESS:

a. RA approval:

If the Trial Attorney decides that expert testimony is 

necessary, that decision must be reviewed and 

approved by the RA. 
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Expert Testimony

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Litigation Manual 2−1

b. Qualifying the witness as an expert witness: 

If the Trial Attorney calls an expert witness, s/he is 

prepared to qualify the witness as an expert before the 

witness can begin to provide “expert” testimony. In 

addition, if the witness is being called to state an expert 

opinion, the Trial Attorney is careful to lay the proper 

foundation prior to the witness’ testimony as to the 

expert opinion. 

c. Suggested outline for structuring an expert 

witness’ testimony:

i. Objectives: 

· Qualify the witness as an expert, 

and 

· Introduce witness’ opinion into 

evidence in an understandable, 

compelling manner. 

ii. Method: Lay foundation that permits you 

to accomplish both objectives; use 

chronological/logical approach in eliciting 

the following testimony: 

· Establish that the witness is an 

expert in his/her field; 

--full name 
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Expert Testimony

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Litigation Manual 2−2

--education 

--professional education 

--license/board certification 

--curriculum vitae (have expert 

discuss) 

--occupation/area of specialization 

· Tender the expert; 

· Stating the expert’s opinion; 

· The bases for the opinion; 

· The factual bases for the expert’s 

conclusion; 

· Confront weaknesses; and 

· Redirect, if necessary. 

EXAMPLE

Establish that witness is an expert in his/her field

Trial Attorney: Please state your name and where you reside. 

Mr. Donovan: Thomas J. Donovan, I reside in New York City, New 

York. 

Trial Attorney: What is your occupation and where are you employed? 

 Mr. Donovan: I am a Document Analyst and Director of the U.S. Postal 

Inspection Service Crime Laboratory, located in New

York City, New York. 

Trial Attorney: State your experience as a Document Analyst. 
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Expert Testimony

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Litigation Manual 2−3

Mr. Donovan: I was with the New York City Police Department for 171⁄2 

years, the last 15 of which I was assigned to their Crime 

Laboratory as an Examiner of Questioned Documents. I 

have been employed by the U.S. Postal Service as a 

Document Analyst since January 1, 1972. 

Trial Attorney: Please explain the nature of your work as a Document 

Analyst. 

Mr. Donovan: My position entails the examination, comparison and 

identification of questioned handwriting, hand printing 

and typewriting in cases coming under the investigative 

jurisdiction of the U.S. Postal Service. 

Trial Attorney: In your official capacity, how much of your time is 

devoted to this profession? 

Mr. Donovan: My full working time. 

Trial Attorney: Briefly state your qualifications in this field. 

Mr. Donovan: I have an Associate and Applied Science degree from 

Brooklyn College, majoring in Police Science, I have a 

Bachelor of Science degree from John Jay College of

Criminal Justice, majoring in Criminology. I trained 

under retired Captain Joseph P. McNally, New York City 

Police Department and retired Detective Hugh L. Sang, 

New York City Police Department, both qualified 

Document Analysts. I have examined thousands of 

handwriting, hand printing and typewriting problems; 

prepared reports and exhibits, qualified in court on 

handwriting, hand printing and typewriting problems. I 

have been certified by the U.S. Civil Service 

Commission as a Document Analyst. 

Trial Attorney: Are you a member of any scientific or professional

organizations? 

Mr. Donovan: Yes, I am a member of the American Board of Forensic 

Document Examiners and the American Society of 

Crime Laboratory Directors. 
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Litigation Manual 2−4

Trial Attorney: What courts have you qualified and testified in 

previously? 

Mr. Donovan: State Supreme Courts, Criminal and Civil Parts, in the 

five counties of New York City, also Criminal Parts of 

Supreme Courts in Nassau County, Suffolk County and

Westchester County in New York and Dauphin County, 

Pennsylvania and Federal courts in Southern and 

Eastern District New York, Pennsylvania, Rhode Island, 

Massachusetts, Maine, Florida and North Carolina. 

Trial Attorney: Please name some of the technical books you have 

studied. 

Mr. Donovan: “Questioned Document Problems” by Albert S. Osborn, 

“Ames on Forger” by Daniel T. Ames, “Twentieth 

Century Handwriting Systems” by Albert W. 

Sommerford, “Scientific Examination of Documents” by 

Ordway Hilton and “Suspect Document” by Wilson R. 

Harrison. 

Tender the Expert

Trial Attorney: “Your honor, I move that the witness be accepted as a 

qualified expert in the field of Questioned Documents.” 

Stating the Expert’s Opinion

Trial Attorney: I hand you FLRA Exhibit 1 and ask you whether you 

have previously examined this document? 

Mr. Donovan: Yes, I received this exhibit from Postal Inspector Smith. 

Trial Attorney: I hand you FLRA Exhibit 2 (known handwriting 

specimens) and ask you whether you have previously 

examined them? 
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Expert Testimony

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Litigation Manual 2−5

Mr. Donovan: Yes I have. This Exhibit (Specimen Handwriting) was 

submitted to the Crime Laboratory by Postal Inspector 

Smith. 

Trial Attorney: Did you make a comparison between the questioned 

writing on FLRA Exhibit 1 and the specimen writing,

FLRA Exhibit 2? 

Mr. Donovan: Yes. 

Trial Attorney: Did you form any conclusions with respect to the 

questioned and known writings? 

Mr. Donovan: Yes. 

Trial Attorney: Will you state your findings? 

Mr. Donovan: The questioned writings were authored by the same 

person who authored the known writings. 

 The Bases for the Opinion

Trial Attorney: Did you prepare or cause to be prepared any 

photographic enlargements of the writings contained in 

FLRA Exhibits 1 and 2? 

Mr. Donovan: Yes. 

Trial Attorney: For what purpose? 

Mr. Donovan: To demonstrate the basis for my findings. 

Factual Bases for the Expert’s Conclusion

Trial Attorney: Did you compare them with the originals? 

Mr. Donovan: Yes, and I find them to be true copies. 
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Trial Attorney: Do you have the photographic enlargements with you? 

Mr. Donovan: Yes. 

Trial Attorney: Will you produce it please. (Photographic copy is

offered for identification and so marked as FLRA Exhibit 

4). 

Trial Attorney: Will you, with the aid of this chart, FLRA Exhibit 3, 

explain to the Administrative Law Judge the basis for the 

laboratory findings previously expressed? 

Mr. Donovan: (Expert witness explains). 

Confront Weaknesses

Trial Attorney: “Mr. Donovan, in reaching your conclusion as to the 

author of the questioned documents, did you take into 

consideration the fact that FLRA Exhibit 1 was written 

with a magic marker and FLRA Exhibit 2 was written 

with a ballpoint pen?” 

Mr. Donovan: Yes. 

Trial Attorney: “What effect did that information have upon your 

conclusion and why?” 

Mr. Donovan: No effect, the handwriting pattern of an individual is 

constant regardless of the type or writing instrument 

utilized. 

 If Respondent’s counsel cross-examines the expert, the Trial 

Attorney is prepared to examine the witness on redirect, if 

necessary. See Part 2, Chapter W concerning Redirect 

Examination.

 Part 2, Chapter W concerning Redirect Examination.
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Expert Testimony

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Litigation Manual 2−7

RESERVED
General Counsel’s Case 

Redirect Examination 

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W. REDIRECT EXAMINATION

OVERVIEW:

After a GC witness has been cross-examined, the GC may conduct 

a redirect examination to rebut, explain or further develop matters 

raised on cross-examination. In addition, the ALJ has discretion to 

vary the normal order of proof and allow a party to bring out on 

redirect examination a matter which is relevant to the case but due 

to an oversight was not elicited on direct. The decision to conduct a 

redirect requires careful analysis of whether this is necessary to 

strengthen the GC’s case-in-chief. If redirect will not strengthen 

GC’s case, it is not done.

OBJECTIVE:

To provide guidelines for determining whether to call a witness on 

redirect examination.

WHEN TO CONDUCT REDIRECT EXAMINATION?

· To correct mistakes or lapses in memory made by a witness 

during cross-examination; 

· To allow the witness the opportunity, if necessary and important, 

to explain answers made during cross-examination; 

 This is risky as further testimony by a witness may harm 

the GC’s case.

· To examine the witness on matters newly raised on crossexamination; 

 Redirect is not to rehash testimony given on direct. 

· To remedy key oversights on direct; and 
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Redirect Examination 

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Litigation Manual 2−1

 If a key point was omitted on direct, attempt to cover it 

on redirect. If the Charged Party justifiably objects on 

the ground that redirect exceeds the scope of crossexamination seek permission to expand scope of 

redirect to cover a key point inadvertently not addressed 

on direct. Argue no harm to Charged Party since it can 

address new area. Also argue that it is more efficient 

since you would have to recall the witness later to

address this matter. 

 Avoid the instinct to have the last word--a solid direct is 

rarely damaged by cross-examination.

· To rehabilitate a witness.

After a witness has been impeached on cross-examination by a 

prior inconsistent statement the witness can be “rehabilitated” on 

redirect by explaining how or why the inconsistency occurred. 

This presumes, of course, that there is a reasonable and logical 

explanation for the inconsistency. The witness can also be 

rehabilitated by use of a prior consistent statement. Fed. R. Evid. 

801(d)(1)(B). 
General Counsel’s Case 

Violations not Plead in Complaint 

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Litigation Manual 2−0

X. VIOLATIONS NOT PLEAD IN COMPLAINT

OVERVIEW:

Although the complaint should include all violations which the GC 

intends to litigate at hearing, and, if possible, all amendments 

should be made prior to hearing, on occasion, developments occur 

during the hearing which warrant amending the complaint at 

hearing to include an additional violation. With the advent of the 

pre-hearing disclosure requirements, amending the complaint at the 

hearing should be a rare occurrence. 

OBJECTIVE:

To provide guidance concerning what a Trial Attorney does when a 

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1. FULL AND FAIR LITIGATION SATISFIES DUE PROCESS:

Even though a complaint is silent or ambiguous about specific issues later 

raised at the hearing, a violation may be found if the issues were fully and 

fairly litigated.

 

The test is one of “fairness under the circumstances of each case--

whether the employer knew what conduct was in issue and had a fair 

opportunity to present a defense.” Department of Labor, Washington, 

D.C., 51 FLRA No. 41, 51 FLRA 462, 467 (1995) (quoting Soule Glass 

and Glazing Co. v. NLRB, 652 F.2d 1055, 1074 (1st Cir. 1981)). 

See also Department of Veterans Affairs, Veterans Affairs Medical Center, 

Washington, D.C., 51 FLRA No. 74, 51 FLRA 896, 900 (1996) (where 

complaint alleged that employee did not receive incentive award promised 

by supervisor, but did not allege that supervisor failed to recommend 

employee for award, Authority found that Respondent had notice and fully 

litigated the issue where: (1) GC’s Trial Attorney’s opening statement 

included the latter allegation; (2) Respondent addressed it in its opening 

statement; and (3) Respondent presented evidence to rebut the 

allegation); Air Force Materiel Command, Warner Robins Air Logistics 

Center, Robins Air Force Base, Georgia, 54 FLRA No. 134, 54 FLRA 

1529, 1531 n.2 (1998) (“Although complaint was limited to the September 

4 e-mail, the parties fully disclosed both that message and the September 

27 e-mail before the Judge and in their briefs” thereby fully and fairly 

litigating the issue whether the September 27 e-mail changed conditions 

of employment in violation of § 7116(a)(1) and (5)); OLAM Southwest Air 

Defense Sector (TAC), Point Arena Air Force Station, Point Arena, 
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California, 51 FLRA No. 69, 51 FLRA 797, 807-08 (1996) (although 

complaint erroneously referred to affected technicians as WG-8 

employees record established that the activity was fully aware that the 

case involved WG-11 technicians); Department of Defense, U.S. Army 

Reserve Personnel Command, St. Louis, Missouri, 55 FLRA No. 211, 

55 FLRA 1309, 1314-15 (2000) (even though the complaint’s reference to 

the removal of “two notices” was ambiguous, the Authority concluded that 

the record (testimony and post-hearing briefs) established that the alleged 

removal of a certain posting was litigated). 

Compare Bureau of Prisons, Office of Internal Affairs and FCI El Reno, 

52 FLRA No. 43, 52 FLRA 421, 428, 431-32 (1996) (Authority adopted, 

over Member Wasserman’s dissent, ALJ’s conclusion that the complaint 

allegation that “the Respondents denied active representation by the union 

representative, including the right to confer privately, during the 

examination” did not encompass allegation that “the Union representative 

was prevented from [asking] clarifying questions” even though GC’s Trial 

Attorney referred to the “allegation” in the opening statement. Key point: 

Authority concluded that there was no evidence adduced specifically 

addressing the issue and no basis to conclude that Respondent 

acknowledged or defended against the “allegation”), with United States 

Customs Service, South Central Region, New Orleans, Louisiana, 

53 FLRA No. 67, 53 FLRA 789, 795-96 (1997) (violation of due process 

where complaint alleges that Respondent refused to furnish information 

for a four-year period but ALJ found violation based on refusal to furnish 

information for a one-year period and union testimony shows that it was 

unwilling to narrow or modify its request) with Department of Veterans 

Affairs, Medical Center, Muskogee, Oklahoma, 53 FLRA No. 103, 

53 FLRA 1228, 1229 (1998) (Respondent not deprived of fair opportunity 

to defend itself where record reflects that it knew what issue was being 

litigated). 

2. WHAT THE TRIAL ATTORNEY DOES IF VIOLATION IS NOT DISCLOSED PREHEARING YET IS FULLY LITIGATED AT HEARING:

a. Before close of hearing: 

If a violation was fully litigated, the Trial Attorney makes 

a motion to amend the complaint to include any 

violation that was not plead in the complaint. See Part 
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Violations not Plead in Complaint 

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Litigation Manual 2−3

1, Chapters C and L concerning Analysis of Case File 

and Motions, respectively. 

b. After close of hearing:

The Trial Attorney considers making a motion to reopen 

the record in order to amend the complaint. The Trial 

Attorney files this post-hearing motion within 10 days 

after the date the hearing closed pursuant to 

§ 2423.21(b)(3). See Part 1, Chapters C and L

concerning Analysis of Case File and Motions, 

respectively. 

 Given the pre-hearing disclosure requirement in § 2423.23, and 

the subsequent pre-hearing conference as required by 

§ 2423.24(d), it will be very difficult to amend a complaint at the 

hearing or post-hearing but it is not too late to move to amend a 

complaint at the pre-hearing conference. See Department of 

Transportation, Federal Aviation Administration, Fort Worth 

Texas, 55 FLRA No. 157, 55 FLRA 951, 954-55 (1999) 

(allegation in the amended complaint bore a relationship to the 

charge and the original complaint which put Respondent on 

notice that the GC alleged a continuing violation of the MOU). 

 Part 1, Chapter C concerning Analysis of Case File; 

Part 1, Chapter L concerning Motions; 

Part 1, Chapter N concerning Pre-hearing Disclosure; and 

Part 1, Chapter Q concerning Pre-hearing Conference. 
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Violations not Plead in Complaint 

Office of the General Counsel 

Litigation Manual 2−4

 RESERVED 

General Counsel’s Case 

Difficult Representatives 

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Litigation Manual 2−0

Y. DIFFICULT REPRESENTATIVES

OVERVIEW:

Establishing a good working relationship with the Charging Party’s 

representative and a cordial relationship with the Respondent’s 

representative helps the Trial Attorney to effectively present the 

GC’s case.

OBJECTIVE:

To provide guidance to the Trial Attorney in dealing with a difficult 

Charging Party representative and/or a difficult Respondent 

representative.

1. DIFFICULT RESPONDENT REPRESENTATIVE: 

a. Minor attacks on Trial Attorney: 

On occasion, opposing counsel attempts to harass the 

Trial Attorney by making inappropriate personal 

comments, criticizing the Trial Attorney’s motives, or 

generally impugning the integrity of OGC employees 

and, in particular, the RO. The best defense the Trial 

Attorney has is to keep a sense of humor and to stay 

calm. Such attacks are usually tactics and the Trial 

Attorney should recognize them as such. Minor attacks 

can usually be brushed aside. 

b. Serious attacks on Trial Attorney:

If a serious attack is made, the Trial Attorney upholds 

his/her integrity and that of the FLRA, and makes a

short reply statement. Such a statement should not be 
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Difficult Representatives 

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Litigation Manual 2−1

taken personally and should not lead to argument on

the points of the attack. The remarks are directed

through the ALJ, not directly to the opposing party, with 

the Trial Attorney asking the ALJ to instruct opposing 

counsel to refrain from such statements. Indulging in 

petty bickering damages the Trial Attorney’s own 

credibility, impugns the integrity of the OGC, obfuscates 

the issues, and directs the Trial Attorney’s attention 

away from the essential elements of the case. 

2. DIFFICULT CHARGING PARTY REPRESENTATIVE:

a. At pre-trial:

The best way to avoid problems with a difficult Charging 

Party representative during the course of a trial is 

through careful pre-trial preparation. If the Trial 

Attorney includes the Charging Party representative in 

pre-trial preparation of witnesses, the representative will 

understand how each witness contributes to the GC’s

theory of the case. Where the Charging Party’s theory 

differs from that of the GC, the Trial Attorney discusses 

these differences with the representative and, if 

necessary, explains the limits of the role of the 

Charging Party representative. Where it is not possible 

or desirable for the Charging Party representative to be 

present during the preparation of witnesses, it is 

essential that the Trial Attorney have a pre-trial 

discussion with the Charging Party representative 

concerning the GC’s theory of the case and planned 

method of trial presentation. The Trial Attorney can 
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Difficult Representatives 

Office of the General Counsel 

Litigation Manual 2−2

explain to the representative that disputes during the 

trial between the Trial Attorney and the Charging Party 

are likely to benefit only the Respondent. 

b. At trial:

If despite pre-trial discussion, the Trial Attorney

encounters a difficult Charging Party representative at 

trial, the Trial Attorney maintains a professional 

demeanor and continues with the planned presentation 

of the GC’s case. The Trial Attorney ensures that the 

ALJ understands the GC’s theory of the case, and any 

significant differences between the GC’s position and 

the position presented by the Charging Party 

representative. 

 The Trial Attorney can object to the Charging Party’s witnesses, 

exhibits, and line of questioning of a witness.

 Part 1, Chapter I concerning Relationship with Charging Party 

Representative.

General Counsel’s Case 

Objections

Office of the General Counsel 

Litigation Manual 2−0

Z. OBJECTIONS

OVERVIEW: 

Unlike the parties to proceedings before the NLRB, under 

§ 7118(a)(6) of the Statute and § 2423.31(b) of the Regulations, the 

parties to FLRA hearings are not bound by the Federal Rules of 

Evidence. See, e.g., Department of Veterans Affairs, Medical 

Center, Denver Colorado and Veterans Canteen Service, Denver, 

Colorado, 52 FLRA No. 2, 52 FLRA 16, 22 (1996) (VAMC, Canteen 

Service). However, reliance on rules of evidence in trial preparation 

and presentation as the basis for an objection is a way to ensure 

the orderly introduction of evidence.

OBJECTIVE:

To provide guidance concerning the specific grounds for objecting 

to evidence; when and how to make objections; and when and how 

to respond to opposing counsel’s objections.

1. CRITERIA FOR ADMISSION OF EVIDENCE: 

a. Pursuant to § 2423.31(b), the rules of evidence 

are not strictly followed. 

b. The ALJ may exclude any evidence which is 

immaterial, irrelevant, unduly repetitious or 

customarily privileged. 

2. RULES GOVERNING OBJECTIONS: 

a. § 2423.30(d): 
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Objections

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Litigation Manual 2−1

· Objections are oral or written complaints 

concerning the conduct of a hearing; and 

· Any objection not raised to an ALJ is 

deemed waived. 

b. ALJ’s ruling on objections: 

· An ALJ has broad discretion to rule on 

objections; 

See VAMC, Canteen Service, 52 FLRA at 22 

(ALJ has broad discretion to rule on evidence or 

testimony offered).

· Appeals of adverse rulings are not made 

until exceptions to the ALJ’s decision are 

filed with the Authority. See § 2423.40, 

which covers exceptions to the decision of 

the ALJ. 

See Part 2, Chapter I concerning 

interlocutory appeals. 

3. WHEN TO OBJECT:

Objections are appropriate when: 

· There is a legal basis for one; and 

· When, by objecting, the Trial Attorney can prevent harm to 

his/her case.
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Objections

Office of the General Counsel 

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 It is not necessary nor wise to object every time there is a basis 

to object. The strategic use of objections is a useful tool. Judges 

do not appreciate “technical” objections particularly when the 

objection is to otherwise admissible evidence. It is generally not 

good form to object merely to interrupt the flow of testimony of a 

witness; such an interruption usually only results in the repetition 

of the troubling testimony or argument. 

4. HOW TO OBJECT: 

Objections are addressed to the court only. The Trial Attorney briefly 

explains his/her position regarding the objection (or his/her response to an 

objection). Generally, an objection is made in the following manner: 

“Objection, Your Honor, on the basis (or grounds) of . . ." 

[followed by the specific reasons for the objection]. 

5. FORMS OF OBJECTIONS:

a. General objections:

Are usually worded: “We object,” or “Objection,” or 

“Objection, irrelevant.” General objections can be made 

first and then followed by a more specific objection if 

the judge so requests. 

b. Specific objections: 

Are made with specific bases stated. Every basis for 

such an objection should be stated. For example: 

“Objection, Your Honor, the question is leading, 

there is no foundation established for it, and 

concerns evidence not in the record.” 
General Counsel’s Case 

Objections

Office of the General Counsel 

Litigation Manual 2−3

c. Continuing objections:

May be made to an entire line of questioning. For 

example: 

“Your Honor, I object to this entire line of 

questioning [describe the issue or subject under 

inquiry]. [Explain the bases]. I ask the court to 

please note this continuing objection.” 

The Trial Attorney may renew the continuing 

objection at the end of the testimony and then 

make a motion to strike based on the original 

objection to the line of questioning. 

6. SPECIFIC OBJECTIONS TO QUESTIONS:

a. Irrelevant:

The question calls for an answer which will not tend to 

make any consequential fact more or less probable. 

b. Immaterial:

The question calls for evidence which is not relevant 

and which does not go to substantial matters in the 

dispute. Material evidence goes to an issue which has 

bearing on the ultimate decision. 

c. Incompetent witness:
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Objections

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Litigation Manual 2−4

The witness lacks the qualification of oath or mental 

capacity. Fed. R. Evid. 601--605: 

· 601 General Rule of Competency 

· 602 Lack of Personal Knowledge 

· 603 Oath or Affirmation 

· 604 Interpreters 

· 605 Competency of Judge as witness 

d. Best evidence rule: 

A question that calls for the witness to testify as to the 

content of a document is objectionable. The Trial 

Attorney argues that the document or an authenticated 

copy must be entered into evidence or its absence 

explained and that the document “speaks for itself.” 

Fed. R. Evid. 1002.

e. Privileged communication:

The question calls for testimony which would violate a 

recognized privilege such as attorney-client privilege, 

attorney work product, and union representativeemployee. See § 2423.31(b). 
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Litigation Manual 2−5

See Long Beach Naval Shipyard, Long Beach, 

California, 44 FLRA No. 83, 44 FLRA 1021, 1038-39 

(1992); U.S. Department of the Treasury, Customs 

Service, Washington, D.C., 38 FLRA No. 103, 38 FLRA 

1300, 1308-09 (1991) (recognition of union 

representative/unit employee privilege). 

f. Calls for conclusion:

The question calls for the witness to make a conclusion 

rather than to testify as to the facts. A non-expert 

witness cannot make an inference or conclusion about 

a matter unless it is “rationally based on the perception 

of the witness” or “is helpful to the clear understanding 

of his testimony or the determination of the fact in 

issue.” Fed. R. Evid. 701. 

Exception: An expert witness may make 

conclusions based on evidence in the record or 

based upon a hypothetical within his/her 

expertise. Fed. R. Evid. 602. 

g. Calls for opinion (by an incompetent witness): 

Witness asked to give a lay opinion about a matter 

which is not within the witness’ expertise. Fed. R. Evid. 

701 . 

i. Trial court has broad discretion to 

determine whether a lay witness is 

qualified to testify on a matter of opinion. 
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Litigation Manual 2−6

U.S. v. Borrelli, 621 F.2d 1092 (10th Cir. 

1980). 

ii. Areas where lay opinion is allowed: 

· Handwriting (where one is familiar 

with it); 

· Physical condition (when based on 

facts--person was drunk because 

s/he appeared disheveled, 

stumbled and smelled of alcohol); 

and 

· Another person’s knowledge or 

intent (co-worker testifies that 

another co-worker knew and 

understood the regulations). 

iii. Areas where lay opinion is not admissible: 

· Truth of a matter; 

· Meaning of someone else’s words; 

and 

· Legal conclusions. 

h. Narrative answer: 

i. The question is so broad that it allows the 

witness to ramble and possibly present 
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Litigation Manual 2−7

hearsay or other incompetent evidence. 

Fed. R. Evid. 611(a). 

ii. The ALJ has broad discretion to allow 

narrative testimony. ALJ may allow 

narrative testimony when it would save 

time and make the testimony clearer. 

This is balanced against opposing 

counsel’s right to object to inadmissible 

testimony before it is uttered. 

i. Hearsay: 

i. Definition: 

The question calls for the witness to make “a 

statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter 

asserted.” Fed. R. Evid. 801(c) . 

ii. Hearsay is admissible in FLRA hearings: 

However, the reliability and probative weight of 

the statement is weighed by the ALJ. U.S. 

Department of the Navy, Portsmouth Naval 

Shipyard, Portsmouth, New Hampshire, 1-CA00279, ALJD Rpt. No. 96 at p. 12 n.12 (1991); 

Veterans Administration Medical Center, John 

Cochran Division, St. Louis, Missouri, 7-CA-726, 

ALJD Rpt. No. 14 at p. 7 (1982). 
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Litigation Manual 2−8

iii. Statements which are not hearsay--Fed. 

R. Evid. 801(d):

(a) Prior statement by a witness which: 

· Is either inconsistent with 

his/her hearing testimony; or 

· Is consistent with hearing 

testimony and is offered to 

rebut a charge of recent 

fabrication; or 

· Identifies a person made 

after perceiving him, or 

(b) Admission by party-opponent and 

which is: 

· His/her own statement in 

either his/her own or 

representative capacity; or 

· A statement of which s/he 

has shown manifested an 

adoption or belief in its truth; 

or 

· A statement made by a 

person authorized to do so; 

or 
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Objections

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Litigation Manual 2−9

· A statement made by an 

agent (or servant) in the 

scope of his agency, made 

during the existence of the 

relationship. 

iv. Exceptions to the hearsay rule--Fed. R. 

Evid. 803:

Although hearsay, these statements or 

documents are reliable and admissible and apply 

whether or not the declarant is available to testify 

if they fit into one of the following categories: 

· Present sense impression;

Statement describes or explains a 

condition or event and is made 

while the declarant was perceiving 

the event or condition. 

· Excited utterance; 

Statement related to a startling 

event or condition while the 

declarant is experiencing it. 

· Then existing mental, emotional, or 

physical condition; 
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Objections

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Litigation Manual 2−10

Statement of the declarant’s state 

of mind, emotion, sensation or 

physical condition. (Example: “She 

said she was sick and was going 

home”). 

· Medical diagnosis or treatment; 

Statements about a medical 

diagnosis or treatment; describing 

medical history, such as mental or 

conditions (pain, temperature, 

lucidity). 

· Recorded recollection; 

A memorandum or record 

concerning a matter about which 

the witness once had recollection, 

but no longer does. If efforts to 

refresh the witness’ recollection fail, 

the document may be entered into 

evidence as proof of a fact. 

· Records of regularly-scheduled 

activity; 

A memorandum, report, or other 

document, in any form, kept in the 

regular course of business in a 
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Objections

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Litigation Manual 2−11

routine manner, if identified by the 

custodian of the record. 

· Public records and reports; 

Records, reports, statements or 

data compilations, in any form, of 

public offices or agencies which set 

forth-- 

· The activities of the office or 

agency, or 

· Matters observed pursuant 

to the required activities or 

duties where the record was 

required by law. 

· Learned treatises; 

May be used to cross-examine 

expert witnesses. If admitted in 

testimony, the treatise is not 

received into evidence. 

· Reputation--character; and 

Among the person’s associates or 

in the community. 

· Other exceptions--the “catch-all”
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Litigation Manual 2−12

Allows the introduction of evidence 

which is-- 

· Evidence of a material fact; 

· More probative on the point 

than any other evidence 

which can be reasonably 

obtained; and 

· Serves the purposes of the 

Fed. R. of Evid. and justice. 

v. Exceptions where declarant is 

unavailable--Rule 804: 

(a) Unavailability means any of the 

following: 

· Exempted by court ruling or 

privilege; 

· Persists in refusing to testify 

despite court order; 

· Testifies that s/he does not 

recall; 
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Objections

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Litigation Manual 2−13

· Unable to be present due to 

physical or mental illness or 

death; and 

· Absent from hearing and 

proponent of his statement 

could not secure the witness’ 

presence by process or 

otherwise reasonable 

means. For example, 

witness is in Europe and will 

not return for the hearing. 

(b) Specific Exceptions: 

Former testimony of the unavailable 

witness--transcript of hearing or deposition 

or sworn interrogatories. 

(c) Other exceptions--the “catch all”--

evidence is admissible if: 

· It is offered as evidence of 

material fact; 

· It is more probative than any 

other evidence; and 

· The purposes of rules and 

interests of justice would be 
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Litigation Manual 2−14

served by the admission of 

the evidence. 

Proponent of the statement must give 

advance notice to the adverse party that 

s/he intends to use the statement or 

document, including the name and 

address of the declarant. 

j. Leading question: 

Question invites a particular answer. Fed. R. Evid. 

611(c). Leading questions are generally not allowed 

during direct examination. 

See Part 2, Chapter S concerning Leading Questions 

on Direct Examination. 

 Objections to leading questions are waived if not made. The ALJ 

has no duty to stop leading questions in the absence of an 

objection.

k. Repetitive/asked and answered:

Question calls for an answer which has been previously 

given. 

l. Beyond the scope of direct, cross or re-direct:

Question calls for an answer about facts beyond the

information elicited on direct, cross or re-direct. 
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Litigation Manual 2−15

m. Assumes facts not in evidence: 

Question calls for an answer which depends on facts

not presented. The judge usually will allow the 

questioner to “back up” and establish a foundation by 

putting in the facts “not in evidence.” 

n. Confusing, ambiguous, vague: 

Objection goes to the form of the question, not to the 

evidence it elicits. 

o. Calls for speculation: 

Calls for an answer about which the witness lacks 

knowledge. 

p. Compound/double question: 

Asks more than one question. 

q. Argumentative:

Calls for a particular answer suggested by attorney, 

similar to leading; also, attorney’s questioning is really 

quibbling with the witness. 

r. Misstates facts in evidence: 
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Objections

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Litigation Manual 2−16

Attorney’s question misstates evidence in the record--

similar to a question calling for evidence not in the 

record. The effect is to mislead the witness. 

s. Cumulative:

Question calls for facts or testimony previously 

provided. 

t. Question calls for testimony barred by court 

order:

This could occur where sanctions are granted for failure 

to comply with a subpoena, or where sequestration 

rules have been violated. In these circumstances, the 

ALJ would bar certain evidence or testimony. 

7. OBJECTIONS TO ANSWERS:

Even though a question may be properly stated, the answer given may 

contain impermissible characteristics. Therefore, answers are 

objectionable for many of the same bases as discussed above (e.g., 

Irrelevant; Immaterial; Privileged; Conclusion; Opinion; and Hearsay) and 

on the grounds that: 

· The narrative answer goes on without interruption, making it 

difficult for Trial Attorney to properly object to questions and 

answers; 
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Litigation Manual 2−17

· The answer contains an improper characterization which is an 

opinion for which there is no basis or conclusion, i.e., answer is 

speculative; 

· Rather than testimony about a document, there is the document 

itself which contains the evidence requested, i.e., Best Evidence 

Rule; 

· Witness blurts out remarks which may or may not be responsive 

to something going on in the court room; however, witnesses 

should respond to questions only, i.e., no question pending; and 

· Witness’ answers are uncontrolled, unresponsive, or volunteered. 

8. WHEN TO MAKE OBJECTIONS TO TESTIMONY:

Allow the witness to finish answering the question before objecting to the 

answer. If the objection is sustained, move to have the objectionable 

answer stricken from the record. 

9. OBJECTIONS TO EXHIBITS:

Documents, like questions and testimony, are subject to objections. 

a. Specific objections to exhibits: 

· Irrelevant; 

· Immaterial; 

· No foundation; 

· No authentication; 

The document has not been identified by a 

person competent to do so, i.e., record keeper, 

writer, recipient. 
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Objections

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Litigation Manual 2−18

· Contains hearsay/double hearsay; 

· Violates best evidence rule; 

· Prejudice outweighs probative value; 

· Contains inadmissible matter (matters 

subject to limiting sanctions, unreliable 

hearsay, self-serving statements, 

notations not identified or authenticated); 

· Reading from exhibit not in evidence--not 

allowed unless the document is used to 

refresh recollection. Once refreshed, the 

witness must testify from memory, not the 

document; and 

· Reading from exhibit unfairly or out of 

context--if a portion comes in, the rest 

may come in for clarity and fairness. 

See Fed. R. Evid. 106--“Rule of Completeness.” 

b. When to make: 

After opposing attorney moves to enter the exhibit into 

evidence. Usually, the ALJ will ask if there are any 

objections. 

10. OBJECTIONS TO OPENING STATEMENTS:
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Objections

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Litigation Manual 2−19

Opening statements are not evidence. The purpose of an opening 

statement is to summarize the case the attorney will present through 

witnesses and documents. Therefore, opening arguments are 

objectionable on the following grounds: 

· Arguing law;

· Argumentative; 

· Inadmissible evidence mentioned; 

A very rare instance, since all evidence is admissible, except evidence 

which is immaterial, irrelevant, unduly repetitious or customarily privileged. 

 If sanctions have been imposed, evidence covered by the sanctions may 

not be argued or mentioned. 

· Mentions “unprovable” points; 

· Gives personal opinions; and

· Anticipates Respondent's evidence; 

Unless the answer provides the Respondent’s defense, this is speculation. 

 Often, however, the Trial Attorney knows what defenses will be presented 

and mentioning them is not improper. 

11. OBJECTIONS TO CLOSING ARGUMENTS:

a. May become more important in cases which are 

argued orally without submission of a brief. 

b. Are rarely made since most cases have not been 

orally argued. 

c. The most common type of objections to closing 

statements are:
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Objections

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Litigation Manual 2−20

· Misstates the evidence; 

· Misstates the law; 

· Gives personal opinions; 

· Personal attacks on parties or trial 

attorney; 

· Argues facts not in evidence; and 

· Uses exhibits not in evidence. 

12. RESPONDING TO RESPONDENT’S OBJECTIONS:

a. When: 

The ALJ usually asks the Trial Attorney to respond to 

an objection. If the ALJ does not so request, the Trial 

Attorney asks the judge for an opportunity to do so. 

This request is appropriate after the objection is made 

and before the ALJ rules. 

b. How to respond: 

Trial Attorney addresses the reasons why the testimony 

or document is admissible, based on the specific 

objections made. 

 Acknowledge when the opposing attorney has stated appropriate 

grounds for an objection and the Trial Attorney does not have a 

sufficient explanation. In this instance, withdraw the question, 
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Litigation Manual 2−21

rephrase the question, or do whatever is appropriate under the 

circumstances.

If a Respondent’s objection is sustained without explanation, the 

Trial Attorney may ask the ALJ for an explanation. This is helpful 

if you are not sure why the form of your question was 

objectionable.

 Trial Notebook, ATTACHMENT 1M, Objections Checklist.
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Objections

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Litigation Manual 2−22

 RESERVED 

General Counsel’s Case 

Witness Using Notes 

Office of the General Counsel 

Litigation Manual 2Α−0

AA. WITNESS USING NOTES

 The Trial Attorney always insists on inspecting notes used by a witness for 

the Respondent. The Trial Attorney then questions the witness to 

determine whether the notes are being used to refresh the witness’ 

present recollection, or whether the witness no longer has an independent 

recollection of the matters to which s/he is testifying. If the witness claims 

to have a present recollection, the Trial Attorney can argue that the use of 

notes diminishes the witness’ credibility. If the witness has no 

independent recollection, the Trial Attorney may argue that the testimony 

be excluded as hearsay unless all the requirements of Fed. R. Evid. 

803(5) are met.

 Part 2, Chapter S subsection 4 concerning techniques on direct 

examination to elicit testimony when witness cannot recall 

information sought.
General Counsel’s Case 

Witness Using Notes 

Office of the General Counsel 

Litigation Manual 2Α−1

RESERVED 
General Counsel’s Case 

Cross-Examination

Office of the General Counsel 

Litigation Manual 2Β−0

BB. CROSS-EXAMINATION

OVERVIEW:

Cross-examination is “[t]he examination of a witness . . . by the 

party opposed to the one who produced him, upon his evidence 

given in chief, to test its truth, to further develop it, or for other 

purposes.” Black’s Law Dictionary 376 (6th ed. 1990). 

OBJECTIVE:

To provide guidance on whether to cross-examine a witness; the 

purposes of cross-examination; elements of cross-examination; 

rules for cross-examination; techniques of cross-examination; 

methods to test credibility; and a checklist for cross-examination.

1. WHEN TO CROSS-EXAMINE A WITNESS: 

There is no requirement to cross-examine a witness, and at times, it is 

best not to question a witness at all. Nevertheless, it is relatively rare to 

pass a witness without asking any questions. The key to a successful 

cross-examination is the same as a successful direct examination--proper 

preparation. Listen carefully to the witness’s testimony on direct and pay 

particular attention to those areas that you expect to be in dispute (based 

on pre-trial preparation). After the direct examination is completed ask 

yourself the following questions: 

a. Has the witness hurt your case? 

Not every witness’s testimony has the same impact. 

Some witnesses merely set forth corroborating 

evidence or refer to matters that are not in dispute. If 

this is the case, it may not be necessary to crossexamine the witness. 
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Cross-Examination

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Litigation Manual 2Β−1

b. Is the witness important?

Not all witnesses’s testimony is equally important. If a 

witness is not central to a case, or the testimony of a 

witness is not crucial, it may not be necessary to crossexamine the witness.

c. Was the witness’s testimony credible?

If a witness’s testimony is not credible, it may be better 

to leave well enough alone and not cross-examine. 

You do not want to provide the witness with an 

opportunity to rehabilitate himself/herself.

d. Did the witness give less than expected?

Sometimes a witness leaves something out that is 

important or opposing counsel forgets to ask an 

important question or to clarify a matter. If you crossexamine the witness, you will provide the witness and 

opposing counsel with an opportunity to rectify the

error. It is important to remember that testimony 

unfavorable to your position that is elicited on crossexamination can be particularly damaging. 

e. What are your realistic expectations on cross?
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Litigation Manual 2Β−2

Do you have any valid points that need to be made and, 

more importantly, are you able to make them 

effectively? ULP cases are tried before an ALJ, not a 

jury. Therefore, if the witness was credible and there is 

no way to impeach the witness’s credibility, e.g., prior 

inconsistent statement, it may be better to pass on

cross-examining the witness.

f. What risks do you need to take?

If the trial has progressed as expected, and you are 

satisfied with the presentation of the GC’s case, do not 

take any undue risks. On the other hand, if things have 

not gone well and the case is turning into a probable 

loser, it may be appropriate to conduct a risky crossexamination and hope for a breakthrough.

2. TWO PURPOSES OF CROSS-EXAMINATION:

a. Eliciting favorable testimony (first purpose):

Too often an attorney is overwhelmed by the idea of

destroying a witness’s credibility and overlooks an

opportunity to have the witness agree to facts that

support his/her case or the theory of the case. This can 

usually be done with little risk and can be extremely 

effective or even outcome determinative. 
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Cross-Examination

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Litigation Manual 2Β−3

b. Destructive cross-examination (second purpose): 

The objective of a destructive cross-examination is to 

ask questions that will discredit the witness. 

c. Interplay between the two types of crossexamination: 

Even though a Trial Attorney can elicit favorable 

testimony and conduct a destructive cross-examination 

during the same examination, it is preferable to elicit 

favorable testimony first since a witness’s credibility will 

usually be at its highest level at the conclusion of direct. 

 Also, eliciting favorable facts after a destructive cross 

can prove more difficult because the witness is less 

likely to be in a cooperative frame of mind. In addition, 

you may elicit so much favorable testimony that a 

destructive cross is unnecessary. 

3. ELEMENTS OF CROSS-EXAMINATION:

A successful cross-examination follows a planned structure that gives the 

examination a logical and persuasive order. That structure is based on 

the following considerations:

a. Establish a few basic points:

It is always best to establish a few good points. If you 

try to accomplish too much, you could end up 

accomplishing nothing. 

b. Make strongest points at the start and at the end:
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Cross-Examination

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Litigation Manual 2Β−4

The first and last points made during cross-examination 

are the most important. A point made at the start will 

set the mood and tone for the entire examination and 

the point made at the end can be the most 

remembered.

c. Vary the order of your subject matter:

Varying the order of cross-examination will make it

difficult for the witness to anticipate where you are 

going with a particular line of questioning. It can help 

you make a point before a witness can adjust.

d. Do not repeat direct examination:

Too often, an attorney asks a witness to repeat what 

was already stated on direct. The reality of this 

approach is that it allows the witness a second 

opportunity to tell the same story. Only where the

witness’s testimony appears memorized or where major 

parts of the direct examination support your theory can 

this approach be beneficial.

4. RULES OF CONDUCTING CROSS-EXAMINATION:

There are no “hard and fast” rules for cross-examination. Nevertheless, 

certain rules have withstood the test of time and following them is usually 

the safest course. 

a. Start and end quickly:
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Cross-Examination

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Litigation Manual 2Β−5

Do not beat around the bush. Make a point and move

on. You do not want the witness to be able to relax or 

become complacent. In addition, you want to keep the 

ALJ interested in the case.

b. Know the probable answers to questions:

If you have prepared properly, you will have a good idea 

what the witness will say in response to your questions. 

 You do not want to explore unknown matters. While

you may not know the precise answer to a question, 

you only want to ask a question that will evoke a 

response that is not unexpected. The more you deviate 

from this point, the greater the risk. 

c. Listen to the witness’s answers:

Frequently, the best ideas for an effective crossexamination flow from the witness’s direct exam. Listen 

carefully to everything that is said as well as the way it 

is said. If a witness has trouble responding to a 

particular line of questioning, that may be indicative of 

the fact that the witness has no real memory of what 

happened or that the witness is not telling the truth. 

d. Do not argue with the witness:
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Cross-Examination

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Litigation Manual 2Β−6

Absolutely nothing is gained by arguing with a witness. 

No matter how frustrated you become with a witness, it 

is important to maintain composure at all times. 

e. Do not ask the witness to explain:

Be as specific as possible; questions that ask “what”, 

“where”, or “why” are too general and may elicit 

unwanted testimony. In rare instances, however, a 

witness can be placed in a situation where there is no 

explanation. In that case, it might be worth the risk to 

ask the witness for an explanation. 

f. Restrict the witness’s answers:

The less room provided to a witness during crossexamination, the greater the control. Questions 

designed to evoke simple “yes” or “no” responses work 

well. In addition, use of leading questions keeps the 

witness under control.

g. Do not ask one more question than is necessary:

One question too many may result in a bad response or 

an unexpected response that will hurt your case. 

Always remember, you do not want to give the witness 

or the opposing counsel an opportunity to recover. 

h. Stop when finished:
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Cross-Examination

Office of the General Counsel 

Litigation Manual 2Β−7

One of the toughest calls is to know when to stop. If 

things are going well, you may have a tendency to want 

to keep going. If things are going badly, you may try to 

make something out of nothing. This may confuse the 

record and create undue risks. Once you have covered 

the points you intend to cover, stop. 

5. TECHNIQUES OF CROSS-EXAMINATION:

Cross-examination is different from direct examination. During direct 

examination the focus is on the witness. During cross-examination, 

because of the unrehearsed spontaneity involved, the focus is equally on 

the attorney asking the questions. The following techniques facilitate 

effective cross-examination: 

a. Use leading questions:

A leading question is one that suggests the answer. 

Proper use of leading questions facilitates a Trial

Attorney’s ability to control a witness and the tempo of 

the case. Train yourself to routinely ask leading 

questions on cross-examination so that they flow 

naturally.

b. Make statements of fact and ask for agreement:

It is preferable to make statements and ask the witness 

to agree or disagree. The objective is to prevent the 

witness from having the opportunity to give a long selfserving answer. 

c. Use short, clear questions:
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Litigation Manual 2Β−8

Short, clear questions are the safest and most effective 

to use in cross-examination. If you combine questions, 

you will provide the witness an opportunity to say more 

than what is necessary.

d. Project a confident attitude:

On cross-examination, you are the focal point. Project 

confidence and knowledge of the case. 

e. Be natural:

Utilize a style that you feel is natural. If you try to be 

something you are not, you will create an extra burden. 

 Remember, there is no correct or incorrect style that is 

suitable for everyone. 

6. METHODS TO TEST CREDIBILITY:

a. Memory: 

Exploring aspects of memory may be the basis of an 

effective cross-examination because a witness is 

usually testifying about something that occurred in the 

past. A witness’s testimony can be too good since a 

normal person would not remember certain things with 

precision because of the passage of time. 

b. Perception: 
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Cross-Examination

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Litigation Manual 2Β−9

A witness often testifies about something that was 

seen. What you see, however, can be impacted by a 

number or things that can be explored. Does the 

witness wear glasses? What was the weather if the 

event took place outside? Was it nighttime? How close 

was the witness to the event? Was the witness 

involved or a bystander? 

c. Competency: 

Whenever a witness expresses an opinion, the 

competency of that witness is subject to crossexamination. Does the witness have the proper training 

or background to support the opinion? 

d. Bias: 

A witness may have a stake in the matter. Is the 

witness a personal friend of a stakeholder? a relative? 

a fellow member of management? 

7. CHECKLIST FOR CROSS-EXAMINATION:

a. Do I need to cross-examine the witness?

· Has the witness hurt my case? 

· Is the witness important? 

· What are my reasonable expectations? 

· What, risks, if any, should I take? 
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b. What favorable testimony can I elicit?

· What parts of direct helped me? 

· What parts of my case can be 

corroborated? 

· What must the witness admit? 

· What should the witness admit? 

c. What testimony can I discredit or impeach?

· Can I discredit testimony? (Perception, 

memory, competency, bias) 

· Can I discredit conduct? 

 Part 2, Chapter CC concerning Impeachment of Respondent’s 

Witness. 

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Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−0

CC. IMPEACHMENT

OVERVIEW: 

Impeachment, in the broad sense, encompasses any attack on an 

opposing witness, including attacks upon the witness's present 

interest, bias or prejudice as well as the presentation of evidence of 

prior inconsistent statements or actions. Although impeachment 

normally occurs during cross-examination, it may also take place 

with the introduction of rebuttal witnesses or even in oral or written 

argument. However, for purposes of this discussion the technique 

of impeachment on cross-examination is being considered.

OBJECTIVE:

To provide guidance on the principles for impeaching a witness; 

practical examples; and matters to consider when deciding whether 

to impeach on cross-examination.

1. PRINCIPLES OF IMPEACHMENT:

· Commit the witness to the vulnerable testimony before 

impeaching. This rule is essential for impeachment of the 

testimony of an opposition witness; 

· Do not impeach the insignificant; 

· Use leading questions which clearly set forth weaknesses in the 

testimony; 

· Use leading questions which permit complete control of the 

witness during impeachment; 

· Be precise when quoting the testimony of the opposing witness; 

· Attack, rather than assist, the witness; 
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Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−1

· Know when not to attack on cross-examination; 

See also Part 2, Chapter U concerning Adverse or Hostile Witness, Rule 

611(c) (same techniques are used). 

2. PRACTICAL EXAMPLES:

a. Use of direct questions to commit witness:

Hypothetical - The complaint alleges a violation 

of § 7116(a)(1) and (2) based upon the 

suspension of Mr. Jones, a Union steward, in 

retaliation for his grievance activity. Mr. Smith, a 

secretary, has provided an affidavit that the 

manager who made the decision to suspend 

rides in his car pool. On the way home from 

work one evening, the manager told the 

secretary that she was tired of Mr. Jones filing 

grievances and was going to tell him the 

following day that she planned to suspend him 

for a day to see if Jones would get the message. 

 Upon arriving home that evening, Mr. Smith 

made a written notation of what the manager had 

told him. That notation is dated November 11, 

1996. The manager testified on direct 

examination that it was her decision and hers 

alone to suspend Mr. Jones and that she did not 

discuss that decision with anyone else. 

Moreover, she testified that in accordance with 

her usual practice, she made the decision and 
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Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−2

promptly told Mr. Jones her decision the 

following day. 

Q. You testified on direct examination that 

you decided to suspend Mr. Jones and 

you gave him written notice of that 

proposal the very next day. 

A. That is correct. 

Q. Your proposal to suspend him is dated 

November 12, 1996. 

A. Yes. 

Q. Prior to November 12, 1996, did you tell 

anyone of your decision to suspend Mr. 

Jones? 

A. No one. 

Q. You're sure of that? 

A. Yes. 

Q. No doubt in your mind? 

A. None. 

b. Use of leading questions to commit witness:
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Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−3

· Do not use complex language to phrase 

your questions. 

If a witness testifies to "x" now and testified [or

made statements] to "y" on a prior occasion, 

make the ALJ aware of this by your 

impeachment questions in the most simple and 

straightforward way possible. Use of leading 

questions is virtually mandatory, as it permits you

to fashion your attack in the terms most 

favorable to the GC. 

· Control the opposition witness:

Do not tolerate non-responsive answers. 

Explanations must not be permitted. The use of 

leading questions is required. 

· Confront the witness with the witness's 

exact words:

If your questions do not accurately reflect the 

facts, the witness may be able to correct the 

cross-examiner and thereby diminish, if not 

destroy, the impact of impeachment. 

· Impeachment is an attack upon an 

opposing witness--Conduct it as such: 
General Counsel’s Case 

Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−4

There are times to be friendly to a witness on 

cross-examination, but impeachment is not one 

of them. Do not assist the opposition witness by 

helping the person either to "recall" his/her past 

testimony or statements or to refresh his/her 

recollection. 

For example, do not ask if the witness recalls 

testifying in a proceeding before the MSPB. 

Rather, tell the witness that he testified on such 

and such a date in the matter of Doe v. Agency, 

before an MSPB AJ at the MSPB office at 99 

Summer Street, Suite 1800, Boston, 

Massachusetts. As a general rule, do not hand 

the witness an earlier statement or a transcript of

the witness's earlier testimony to help the 

witness refresh recollection. Exceptions would 

include requests by the Judge, the opposing 

counsel, or the witness to permit the witness's 

examination of the document. 

Hypothetical - The complaint alleges a violation 

of § 7116(a)(1) and (2) when the Respondent 

refused to rehire Mr. Doe, a former Union 

President, because of Doe's representational 

activities on behalf of the Union when he 

previously worked for the Respondent. Doe had 

quit his job as an electrician in the Respondent's 
General Counsel’s Case 

Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−5

Public Works Department to accept employment 

in the private sector. Things did not work out for

him and he applied for a vacancy for the same 

position he had left. His former second-level 

supervisor was the deciding official and he did 

not select Doe. Doe complained to his 

Congressman who submitted an inquiry to the 

Respondent. The response to the Congressman 

was written by the second-level supervisor, but it 

was signed by Major Collins, the Public Works 

Department Director. In that response, the 

Respondent told the Congressman that Doe was 

not rehired because he was a poor employee 

who was not technically skilled in the type of 

electrical work commonly encountered by the 

incumbent of the position for which he had 

applied. In addition, he was not a reliable 

employee. However, the investigation disclosed 

that [1] Doe had received "outstanding" 

performance ratings for each of the five years 

prior to Doe's resignation and the supervisor had 

signed off on those ratings, and [2] for the nine 

months prior to his resignation, the Public Works 

Foreman position was vacant and he was made 

the Acting Foreman. 

Q. You were the selecting official for the 

electrician's job that Mr. Doe applied for? 
General Counsel’s Case 

Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−6

A. Yes. 

Q. You made the decision not to select him? 

A. Yes. 

Q. Sometime after you made that decision, 

the Public Works Department received a 

letter from Congressman Perkins asking 

why Mr. Doe wasn't rehired? 

A. Yes. 

Q. Inquiries from Congress are important to 

the Agency? 

A. Yes. 

Q. It is important to respond truthfully to 

members of Congress?. 

A. It is. 

Q. You wrote the Public Works Department's 

response to Congressman Perkins 

inquiry? 

A. That's right. 
General Counsel’s Case 

Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−7

Q. Major Collins signed that response? 

A. He did. 

Q. You gave the Congressman the reasons 

why you did not rehire Mr. Doe? 

A. I did. 

Q. You told Congressman Perkins that one 

reason why Mr. Doe was not rehired was 

because he was a poor employee who 

was not technically skilled in the type of 

electrical work commonly encountered by 

the incumbent of the position for which he 

had applied? 

A. Yes. 

Q. You also told the Congressman that Mr. 

Doe was not a reliable employee? 

A. I did. 

Q. Those were the only reasons you gave to 

Congressman Perkins for not rehiring Mr. 

Doe? 

A. Yes. 
General Counsel’s Case 

Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−8

Q. Those were all of your reasons for not 

rehiring him; correct? 

A. Yes. 

Q. There were no other reasons for not 

rehiring him? 

A. That's right. 

Q. You're absolutely sure of that? 

A. I am. 

c. Impeachment of witness:

Q. At the time of Mr. Doe's resignation on 

August 3, 1995, you were his second-level 

supervisor? 

A. I was. 

Q. You had been his second-level supervisor 

since 1988? 

A. Yes. 
General Counsel’s Case 

Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−9

Q. The electrician's job Mr. Doe had while 

you were his second-level supervisor was 

the same electrician's job which he 

applied for and for which you did not 

select him; correct? 

A. Yes. 

Q. As his second-level supervisor, you 

approved Mr. Doe's performance ratings 

in that electrician's job, right? 

A. Yes. 

Q. For the performance periods ending in 

1991, 1992, 1993, 1994 and 1995 Mr. 

Doe's performance as an electrician was 

rated "Outstanding?" 

A. Yes. 

Q. And you approved each of those 

performance ratings? 

A. Yes. 

Q. The Foreman of Public Works reports 

directly to you? 
General Counsel’s Case 

Impeachment

Office of the General Counsel 

Litigation Manual 2Χ−10

A. Yes. 

Q. The Foreman's job is an important one in 

the Public Works organization? 

A. Yes it is. 

Q. It is important that the Public Works 

Foreman be a reliable employee? 

A. Yes. 

Q. For the nine months prior to his 

resignation in 1995, Mr. Doe was the 

Acting Foreman for Public Works? 

A. He was. 

3. DECIDING WHETHER TO ATTACK ON CROSS:

There are occasions when the best impeachment on cross-examination is 

no impeachment. An opposition witness may often testify to something 

you decide can be attacked. The Trial Attorney decides whether to 

conduct the attack on cross, in rebuttal or in argument. Attacking on cross 

normally is a contest between examiner and witness. The ALJ sees the 

result of that encounter. Most of the time there will be a winner and a 

loser. If you believe, following careful consideration of all the facts and 

knowing what you have in your briefcase that you will win, you will likely 

impeach by attacking on cross. 

 Part 2, Chapter BB concerning Cross-Examination. 

Respondent’s Case 

GC’s Rebuttal 

Office of the General Counsel 

Litigation Manual 2∆−0

DD. GENERAL COUNSEL’S REBUTTAL

OVERVIEW:

Pursuant to § 2423.30(c), a party who has the right to appear at a 

hearing has the right to submit rebuttal evidence. After Respondent 

rests, the GC has what is usually a last opportunity to present 

evidence that rebuts the Respondent’s case. 

OBJECTIVE:

To provide guidance on what the Trial Attorney considers in 

determining whether to put on rebuttal evidence when the 

Respondent has rested its case.

FACTORS CONSIDERED IN DETERMINING WHETHER TO PRESENT REBUTTAL:

Rebuttal evidence is limited to addressing claims and evidence presented 

by the Respondent during its defense. Rebuttal is not for the purpose of 

addressing matters raised in the GC’s case-in-chief. The decision to offer 

rebuttal evidence requires careful and objective consideration of the state 

of the record. If Respondent has presented a potentially meritorious 

defense and the failure to address this evidence will hurt the GC’s case, 

then rebuttal is appropriate. Note, however, that in Indian Health Service, 

Winslow Service Unit, Winslow, Arizona, 54 FLRA No. 17, 54 FLRA 126, 

127 (1998), the Authority found that the ALJ did not abuse discretion by 

denying GC’s Trial Attorney an opportunity to recall a prior witness to 

provide rebuttal testimony. 
Respondent’s Case 

GC’s Rebuttal 

Office of the General Counsel 

Litigation Manual 2∆−1

 RESERVED 
Prior to the Close of Hearing 

Leaving the Record Open for Additional Evidence 

Office of the General Counsel 

Litigation Manual 2Ε−0

EE. LEAVING THE RECORD OPEN FOR ADDITIONAL 

EVIDENCE

OVERVIEW:

Pursuant to § 2423.31(a), which concerns the conduct of a hearing, 

an ALJ “may take any action necessary to schedule, conduct, 

continue, control, and regulate the hearing, including ruling on 

motions. . . .” This authority includes ruling on motions to leave the 

record open for additional evidence.

OBJECTIVE:

To provide guidance to Trial Attorneys as to the criteria for 

requesting to leave open the record for additional evidence; support 

needed for such motion; and preserving the record to crossexamine witnesses. 

1. CRITERIA FOR REQUESTING TO LEAVE RECORD OPEN:

Under the following circumstances the Trial Attorney may request the ALJ 

to leave the record open until a certain date in order to take a deposition 

from the witness who is unavailable, or request the ALJ to continue the 

hearing at a later date to hear the testimony of the witness: 

· A witness is unavailable to testify at a hearing due to unforeseen 

circumstances; 

· The Trial Attorney was unaware of the existence of the witness 

prior to the hearing; 

· A document is unavailable for introduction into evidence at a 

hearing due to unforeseen circumstances; 

· The Trial Attorney was unaware of the existence of the document 

prior to the hearing; 
Prior to the Close of Hearing 

Leaving the Record Open for Additional Evidence 

Office of the General Counsel 

Litigation Manual 2Ε−1

· Certain reports or documents which are relevant to the 

proceedings have not as yet been issued, but will be issued 

within a definite time frame. Under these circumstances, the 

Trial Attorney may request the ALJ to leave the record open until 

a certain date for the submission of the document; and 

· A document has been introduced into evidence which is not a 

good copy. Under this circumstance the Trial Attorney may 

request the ALJ to leave the record open until a certain date so 

that a good copy of the document can be obtained. 

2. WHAT TRIAL ATTORNEY MUST SHOW IN SUPPORT OF THE MOTION:

a. The Trial Attorney establishes that the witness or 

document for which the record is to be left open 

will offer testimony or present evidence which is 

relevant to the proceedings.

b. That the Trial Attorney was unable to obtain the 

testimony of the witness at the hearing, or was 

unable to obtain the document for introduction 

into evidence at the hearing.

 The Trial Attorney objects to Respondent counsel’s motion to 

leave open the record when Respondent has not met these same 

standards. 

3. PRESERVE RIGHT TO CROSS-EXAMINE WITNESS:

 

The Trial Attorney preserves on the record the right of the GC to crossexamine the witness or to object to the document for which Respondent’s 

counsel is seeking to leave the record open. 
Prior to the Close of Hearing 

Reopening of the GC’s Case 

Office of the General Counsel 

Litigation Manual 2Φ−0

FF. REOPENING OF THE GENERAL COUNSEL’S CASE

OVERVIEW:

After the GC’s case has been presented and Respondent has 

rested its case and the Trial Attorney discovers that either an 

element of proof was not addressed in the presentation of the GC’s 

case-in-chief, or that evidence that supports the GC’s case was not 

presented, the Trial Attorney moves to reopen the GC’s case-inchief. If the record is closed, a motion to reopen the record may be 

filed as long as the ALJD has not been issued.

OBJECTIVE:

To provide guidance concerning when to move to reopen the GC’s 

case and the law applicable.

1. CASE LAW: AFTER THE RECORD HAS BEEN CLOSED: 

a. An ALJ has discretion to determine whether to 

reopen the record for receipt of additional 

evidence. 

SBA, 54 FLRA 837, 848 (1998) (Authority upheld ALJ’s 

exercise of discretion in not reopening record when

request to reopen record was based on individual’s lack 

of active participation in the hearing); Pension Benefit 

Guaranty Corporation, 52 FLRA No. 132, 52 FLRA 

1390, 1398 (1997) (citations omitted) (PBGC), aff'd sub

nom. Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998). 
Prior to the Close of Hearing 

Reopening of the GC’s Case 

Office of the General Counsel 

Litigation Manual 2Φ−1

b. Generally, motions to reopen a record are 

disfavored; they are reserved for extraordinary 

circumstances. 

Id. at 1399 (citations omitted) (“strong public policy in 

bringing litigation to a close as promptly as is consistent 

with the interest in giving the adversaries a fair 

opportunity to develop and present their respective

cases”). 

Cf. International Brotherhood of Electrical Workers, 

Local 648 v. NLRB, 440 F.2d 1184, 1185 (6th Cir. 1971) 

(Local 648) (court approved of trial examiner’s 

reopening of the record, referring to Supreme Court’s 

admonition that courts “should not deprive employees 

of their lawful rights because of neglect on the part of 

the NLRB”). For example, an ALJ may exercise 

discretion to reopen the record if a motion is made

before s/he has issued a decision and within days after 

the close of the hearing. Id.

2. WHEN TO MOVE TO REOPEN RECORD FOR RECEIPT OF ADDITIONAL 

EVIDENCE:

a. Either at the hearing, or after record is closed, if an element of 

proof was not addressed in the presentation of GC’s case.

b. If evidence is discovered after the hearing that was not 

introduced and is critical to the GC’s case. 

Compare PBGC, 52 FLRA at 1399 (evidence not in existence at the time 

of the original hearing weighs against reopening because it would 
Prior to the Close of Hearing 

Reopening of the GC’s Case 

Office of the General Counsel 

Litigation Manual 2Φ−2

“perpetuate continuation of all trials”) (citation omitted) with U.S. 

Department of Treasury, Internal Revenue Service, Washington, D.C., 

40 FLRA No. 31, 40 FLRA 303, 309 (1991) (Authority suggested that 

parties file to reopen the record to introduce exhibits that were not in 

existence prior to the close of the hearing). 

 (1) Always make your best argument in favor of reopening the 

record. As stated above, the decision to reopen the record is 

within the ALJ’s discretionary power.

 (2) The closer to the hearing that a motion is made, the greater 

the likelihood that the motion may be granted. Compare Local 

648 (motion filed within days of the close of the hearing granted) 

with PBGC (motion filed after case remanded by D.C. Circuit to 

FLRA and from FLRA to ALJ denied where evidence did not exist 

at time of original trial). 

 (3) If the motion is granted, the topics covered under the 

headings “General Counsel’s Case” and “Respondent’s Case” 

apply. 
Prior to the Close of Hearing 

Reopening of the GC’s Case 

Office of the General Counsel 

Litigation Manual 2Φ−3

 RESERVED 
Prior to the Close of Hearing 

Closing Argument 

Office of the General Counsel 

Litigation Manual 2Γ−0

GG. CLOSING ARGUMENT

OVERVIEW:

Section 2423.30(e) states that “[a]ny party shall be entitled, upon 

request, to a reasonable period prior to the close of the hearing for 

oral argument, which shall be included in the official transcript of the 

hearing.” Traditionally, the Trial Attorney submits written briefs to 

the ALJ in support of the complaint, although oral arguments are 

also available. Generally, when oral argument is presented at the 

hearing, the Trial Attorney also submits a written brief to the ALJ. 

OBJECTIVE: 

To provide guidance to Trial Attorneys on the benefits derived from 

presenting an oral argument; criteria for presenting oral argument in 

lieu of filing a brief; and an outline of the topics to cover during the 

presentation of an oral argument. 

1. BENEFITS DERIVED FROM PRESENTATION OF CLOSING ARGUMENT:

· Trial Attorney ensures that Respondent has notice of the GC’s 

legal theory of the case; 

· Trial Attorney has the opportunity to amend the complaint, if 

necessary; 

· Trial Attorney explains any previous amendments; 

· Trial Attorney can persuade ALJ on credibility determinations 

while testimony is still fresh; and 

· Trial Attorney sets forth the evidence presented, summarizes the 

important points and how they relate to the legal theories upon 

which the GC bases its case.

2. ORAL ARGUMENT IN LIEU OF FILING A BRIEF:
Prior to the Close of Hearing 

Closing Argument 

Office of the General Counsel 

Litigation Manual 2Γ−1

Generally, the Trial Attorney does not waive the right to file a brief when 

s/he makes a closing argument. However, if all sides agree to waive the 

filing of written briefs, the Trial Attorney, after consulting with the RA, as 

necessary, could also waive that right. 

Criteria:

If oral argument is to be used as a substitute for the written brief, the Trial 

Attorney considers the following criteria: 

· Factual evidence lends itself to oral presentation; 

· GC theory and legal precedent clear; 

· Ability to analyze facts and relate to precedent;

· Ability to appropriately address Respondent’s defenses; 

· Ability to prepare in short period of time; and 

· Requested remedy lends itself to oral presentation, with 

appropriate case cites. 

3. OUTLINE OF ORAL ARGUMENT IN LIEU OF BRIEF:

If the above criteria are met, the Trial Attorney crafts a closing argument 

that succinctly sets forth the evidence at the hearing, as well as responds 

to the defenses raised. The relevant case law is set forth and an analysis 

of the evidence to the case law that clearly presents the GC’s theory is 

presented. Presentation of an oral argument generally follows the 

guidelines for a written brief. See Part 3, Chapter B concerning Brief 

Writing. The presentation follows this outline: 

· Restatement of allegations of complaint, including any 

explanation of amendments; 

· GC evidence, both testimony and documents, in as much detail 

as is necessary to fully argue the matter. Any basis for credibility 

determinations; 
Prior to the Close of Hearing 

Closing Argument 

Office of the General Counsel 

Litigation Manual 2Γ−2

· Any response to the defenses of the Respondent, including any 

arguments regarding credibility. Note any instances where 

Respondent has failed to deny or has admitted conduct; 

· Relevant case law, with appropriate citations. Analysis of 

particular evidence to case law; and 

· Conclusion, including references to requested remedy and basis 

of same. 

4. GREATER CONSIDERATION IS GIVEN TO DOING AN ORAL ARGUMENT IN 

ADDITION TO FILING A BRIEF WHEN IT IS NECESSARY TO:

· Make sure legal theory is understood by ALJ and opposing 

counsel; 

· Emphasize a point; 

· Argue the credibility of witnesses; 

· Ask for adverse inferences; 

· Clarify certain points/matters if either the ALJ or opposing

counsel appears to be confused; and 

· Utilize the particularly adept oral advocacy skills of the Trial 

Attorney.

5. ORAL ARGUMENT IN EACH CASE DECIDED BY BENCH DECISION:

In each case decided by a bench decision, the Trial Attorney presents a 

brief closing argument. It is important to present oral argument because it 

will be included in the official transcript of the hearing and may prove to be 

important should the case be presented to the Authority on exceptions 

filed by a party. See § 2423.30(e). 

 The Trial Attorney is flexible and is prepared to respond to any questions 

and/or comments from the ALJ. If the above criteria are met, the Trial 

Attorney comes to the hearing prepared to orally argue the case. If the 
Prior to the Close of Hearing 

Closing Argument 

Office of the General Counsel 

Litigation Manual 2Γ−3

ALJ voices a preference for oral argument, that wish is respected, 

especially if the above criteria are met. 

EXAMPLE OF CLOSING ARGUMENT

 IN FORMAL DISCUSSION CASE

Your Honor, the complaint in this matter alleges that the Respondent violated the 

Federal Service Labor-Management Relations Statute by conducting a formal 

meeting with bargaining unit employees, without first notifying the Union and 

allowing it the opportunity to be present. The evidence clearly supports a finding 

that the meeting at issue was formal within the meaning of § 7114(a)(2)(A) of the 

Statute, and that the Respondent’s failure to provide the Union notice of the 

meeting and the opportunity to be present was violative of § 7116(a)(1) and (8) of 

the Statute. 

The General Counsel presented three witnesses during the hearing. The Union 

President, Amanda Forthright, credibly testified that she is the representative who 

normally receives notice of formal meetings from management officials, and that 

she then selects the appropriate Union official and/or steward to attend the meeting 

on behalf of the Union. The meeting at issue in this matter occurred on June 2, 

1997 and involved employees in the Research Department. The Union did not 

receive any prior notice that a meeting was scheduled. Forthright works in the 

Development Department and does not have daily contact with the Research 

Department which is located in another building on Respondent’s facility. The 

Union steward assigned to that area had been on extended sick leave during May 

and June 1997. 

The General Counsel’s other witnesses, Virginia Trueblue and Maria Sincere, both 

consistently testified regarding the manner in which the meeting was called and 

conducted. In that regard, all employees in the Research Department received an 

e-mail announcement on May 28, 1997, stating that there would be a meeting in 

the auditorium on June 2. On June 2, both Trueblue and Sincere were reminded 

by their individual supervisors that there was a 10 a.m. meeting. All employees of 

the Research Department who were at work that day came to the auditorium on 

June 2 at 10 am. Present for the Respondent were the first line supervisors and 

the Department Director. Also present was the Labor Relations Specialist and two 

Management Analysts from Headquarters. Trueblue is a member of the union and 

did not see any union representatives at the meeting. 

The Department Director ran the meeting and did almost all of the talking. At the 

beginning of the meeting he announced that he was going to discuss the upcoming 
Prior to the Close of Hearing 

Closing Argument 

Office of the General Counsel 

Litigation Manual 2Γ−4

budget conference at Headquarters and the possibility of a reduction-in-force in the 

Research Department as a result of the conference. According to Trueblue and 

Sincere, he proceeded to inform the employees that due to political pressures, it 

appeared that certain portions of the agency budget that had been dedicated to the 

Research Department were being transferred to other departments within the 

agency. In part this was due to lack of marketable results from the Research 

Department in the last 6 months, in part due to Congressional interest in funding 

projects developed in other departments. The Department Director indicated that 

no decision had been made regarding the budget, but that he wanted employees to 

know that there were serious indications of a substantial loss of funding and that 

employees could be subject to a reduction-in-force. There was also the possibility 

that certain employees could be transferred to other departments at the same 

location or even different agency locations. However, he reiterated that no 

decisions had been made and that no criteria had been established for these types 

of decisions. 

Trueblue and Sincere both testified that the employees were quite upset, both 

because of the budget issues and the possibility that a reduction-in-force would 

lead to losing jobs and/or being transferred to other departments and locations. 

Also, they were upset because of the apparent targeting of the Research 

Department and the lack of understanding by Headquarters of the importance of 

their work. Several employees raised issues regarding seniority, performance 

appraisals and the alternative work schedule. The Department Director did not 

answer any questions, but indicated he would check into several issues and get 

back with the employees. The meeting lasted about 20 to 30 minutes. 

The Respondent presented the Department Director and the Labor Relations 

Specialist as witnesses. The Department Director indicated that he had called the 

meeting to inform the employees of the issue of the budget since rumors had been 

rampant for several days and he wanted to maintain his good relationship with his 

employees. He assumed that the union steward was at the meeting, although he 

did not specifically look for her. The Labor Relations Specialist asserted that the 

meeting did not meet the formality requirements of the Statute, since it only lasted 

about 20 minutes, there was no formal agenda, no minutes were taken, and the 

presence of employees was not mandatory. 

In order to find that a formal discussion occurred, the evidence must show that 

there was (1) a discussion, (2) that was “formal,” (3) between one or more 

representatives of the agency and one or more unit employees or their 

representatives, (4) concerning any grievance or any personnel policy or practice or 

other general condition of employment. As the Authority stated in U.S. Department 

of Justice, Bureau of Prisons, Federal Correctional Institution (Ray Brook, New 
Prior to the Close of Hearing 

Closing Argument 

Office of the General Counsel 

Litigation Manual 2Γ−5

York), 29 FLRA No. 52, 29 FLRA 584 (1987), in making determinations under § 

7114(a)(2)(A), the Authority is “guided by that section’s intent and purpose--to 

provide the union with an opportunity to safeguard its interests and the interests of 

employees in the bargaining unit--viewed in the context of a union’s full range of 

responsibilities under the Statute.” 

In this matter, the General Counsel asserts that evidence presented today clearly 

establishes that all of the elements of a formal discussion set forth in 

§ 7114(a)(2)(A) of the Statute have been met, and that the Respondent has failed 

to abide by such requirements by holding a meeting without giving the union notice 

and opportunity to be present. The evidence clearly shows that the June 2 meeting 

was a discussion between representatives of the Respondent and unit employees 

concerning a general condition of employment, specifically the budget issues and 

possibility of a reduction in force for the employees in Research Department. With 

regard to the issue of whether the discussion was “formal”, the General Counsel, 

relying on the Authority’s analysis in F.E. Warren Air Force Base, Cheyenne, 

Wyoming, 52 FLRA No. 17, 52 FLRA 149 (1996), asserts that the purpose of the 

discussion in this matter is sufficient in itself to establish formality. The purpose of 

the meeting was to inform employees that the budget of the Research Department 

was under scrutiny and could be drastically reduced and that the employees could 

be subject to a reduction-in-force, including the possibility of loss of jobs and 

transfer to other positions and locations. After reviewing the totality of the facts and 

circumstances, the evidence establishes that the June 2, 1997 meeting was a 

formal discussion of which the union should have been notified in advance. 

However, even if the Administrative Law Judge fails to find that the purpose and 

subject matter of the meeting establishes formality, the General Counsel asserts 

that a review of the evidence in light of certain factors set forth in Authority 

decisions, including U.S. Department of Labor, Office of the Assistant Secretary for 

Administration and Management, Chicago, Illinois, 32 FLRA No. 69, 32 FLRA 465 

(1988), establishes formality. In this regard, the meeting was announced on May 

28, 1997, three working days before the meeting, and that employees were 

reminded of the meeting on June 2, 1997. Although the Respondent argues that 

the meeting was not mandatory, the testimony of Trueblue and Sincere shows that 

all employees believed that they were required to attend the meeting and that, in 

fact, all of the employees in the Research Department did attend the meeting. The 

meeting was conducted in the auditorium, which is separate from the employees’ 

normal work locations. Although there was no formal agenda for the meeting, the 

meeting had been called for the specific purpose of informing the employees of the 

budget issues and the possibility of a reduction-in-force, which the Department 

Director relayed to all employees. The meeting was clearly organized and 

controlled for this single purpose, and a formal agenda was therefore not 
Prior to the Close of Hearing 

Closing Argument 

Office of the General Counsel 

Litigation Manual 2Γ−6

necessary. Although the meeting only lasted between 20 and 30 minutes, and no 

notes were taken, the General Counsel asserts that the lack of these elements, in 

view of the totality of the facts and circumstances in the June 2, 1997 meeting, is 

not sufficient to overcome a finding of formality. 

In conclusion, the General Counsel asserts that the evidence establishes that the 

Respondent conducted a formal meeting with bargaining unit employees in the 

Research Department on June 2, 1997 and failed to give the union notice and the 

opportunity to be present. Under these circumstances, the General Counsel 

requests that the Administrative Law Judge find that the Respondent has violated 

§ 7116(a)(1) and (8) of the Statute by failing to abide by the requirements of 

§ 7114(a)(2)(A) of the Statute. As set forth in the opening statement, the General 

Counsel is seeking a remedy that includes the posting of a notice to employees, 

signed by the Respondent’s Director. 

 The remedy requested above is only one potential remedy that the GC 

may seek in a formal discussion case. There are other remedies (nontraditional) that the GC may seek in a formal discussion case depending 

upon the circumstances of the case. Consult the RA or litigation specialist 

on this matter and see Part 1, Chapter D concerning Remedy.

 Part 1, Chapter D concerning Remedy; 

Part 2, Chapter HH concerning Bench Decision; and 

Part 3, Chapter B concerning Brief Writing.
Prior to the Close of Hearing 

Closing Argument 

Office of the General Counsel 

Litigation Manual 2Γ−7

 RESERVED 
Prior to the Close of Hearing

Bench Decision and 

Post-Hearing Brief Inquiry/Suggestions

Office of the General Counsel 

Litigation Manual 2Η−0

HH. BENCH DECISION 

 AND POST-HEARING BRIEF INQUIRY/SUGGESTIONS

OVERVIEW: 

At the end of the hearing the ALJ will either render a bench decision 

if so moved by the parties pursuant to § 2423.31(d), or address 

what issues s/he may want the parties to address in a post-hearing 

brief. 

OBJECTIVE: 

To provide guidance concerning either the discussion of posthearing briefs at the end of a hearing or the bench decision. 

1. BRIEF INQUIRY/SUGGESTIONS:

If the case is decided by a post-hearing recommended decision and order, 

prior to the close of the hearing, the ALJ sets a date for the filing of briefs. 

 At this time it is appropriate for the Trial Attorney to solicit from the ALJ 

what issues s/he may want the parties to address specifically in their 

briefs. The ALJ may indicate that it would be appropriate for the parties to 

limit their briefs to specific topics and/or legal issues. During the closing 

stages of the hearing the Trial Attorney has thought about the filing of a 

post-hearing brief and is prepared to discuss this matter with the ALJ.

2. BENCH DECISION:

If the case is decided by a bench decision it is particularly important for 

the Trial Attorney to listen attentively to the ALJ’s announcement of the 

decision orally at the end of the hearing. A copy of the oral decision will 

appear in the transcript and be excerpted for transmission to the Authority 

in accordance with §§ 2423.31(d) and 2423.34(b). 
Prior to the Close of Hearing

Bench Decision and 

Post-Hearing Brief Inquiry/Suggestions

Office of the General Counsel 

Litigation Manual 2Η−1

The Trial Attorney takes notes, as necessary, during the ALJ’s 

announcement of the bench decision. These notes will be useful when 

reading the transcript and in determining whether to file exceptions to the 

ALJ’s decision and recommended order.

1999 Bench Decisions

See American Federation of Government Employees, Local 400, Case 

No. DE-CO-80520, ALJD Rpt. No. 143 (1999) (ALJ granted parties’ joint 

motion for a bench decision and found that Respondent violated 

§ 7116(b)(1) and (8) of the Statute); Puerto Rico Air National Guard, 156th 

Airlift Wing (AMC), Carolina, Puerto Rico, OALJD 99-24 (Apr. 28, 1999) 

(where Respondent alleged no jurisdiction at the pre-hearing conference 

and failed to appear at the hearing, the ALJ issued a bench decision 

finding that Respondent interfered with unit employees right to engage in 

information picketing thereby violating § 7116(a)(1)); U.S. Department of 

Veterans Affairs, Veterans Affairs Medical Center, Coatesville, 

Pennsylvania, OALJD 00-13 (Jan. 11, 2000) (ALJ found violation of 

§ 7116(a)(1), (5) and (8) by failing to comply with an arbitrator’s order, by 

refusing to recognize the union’s designation of its president as its 

representative, and by refusing to grant him access and to hold arbitration 

hearings at a location off of the premises). 

 Part 1, Chapter Q concerning Pre-hearing Conference; 

Part 2, Chapter GG concerning Closing Argument; and 

Part 3, Chapter F concerning Exceptions.
Prior to the Close of Hearing

Bench Decision and 

Post-Hearing Brief Inquiry/Suggestions

Office of the General Counsel 

Litigation Manual

 PART 3 

 POST-HEARING

Post-Hearing Settlements 

Office of the General Counsel 

Litigation Manual 3−0

A. POST-HEARING SETTLEMENTS 

OVERVIEW:

As discussed in Part 1, Chapter H concerning Post complaint/Prehearing settlements, and Part 2, Chapter G concerning Settlements 

at Hearing, it is OGC Policy “to seek settlements that enhance 

the parties’ relationship; resolve the issues that have brought 

the parties to seek FLRA assistance; and further the purposes 

of the Statute.” OGC Settlement Policy (May 25, 1994) 

(ATTACHMENT 1H). Section 2423.31(e) specifically authorizes 

informal and formal settlements after the hearing is opened. 

OBJECTIVE:

To provide guidance to Trial Attorneys concerning how to process 

settlement agreements reached after the close of hearings. 

1. POLICY:

See Part 1, Chapter H and Part 2, Chapter G.

2. PROCEDURE:

a. Settlement agreement post-hearing but before 

case transferred to FLRA: 

i. Informal Settlement Agreement including 

unilateral settlement agreement or 

PSIWOCs--§ 2423.31(e)(1): 

If an informal settlement agreement or PSIWOC is reached, the 

Trial Attorney: 
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· Upon the RD’s approval, files with the ALJ a written 

motion for permission to withdraw the complaint; and 

· After the ALJ grants permission, the RD approves the 

informal settlement or withdrawal request as applicable. 

ii. Formal Settlement Agreement--Section 

2423.31(e)(2) and (3): 

If the parties reach a formal settlement ((e)(2)) 

after the hearing, the Trial Attorney: 

· Obtains the approval of the RD; 

· Requests the ALJ to approve settlement 

agreement; and 

· Requests, upon such approval, the ALJ to 

transmit agreement to the Authority for 

approval. 

If the formal settlement is unilateral, the Trial 

Attorney: 

· Gives the Charging Party an opportunity 

to state in writing its reasons for opposing 

the agreement; 

· Requests the ALJ to approve the 

agreement; and 
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· Requests, upon such approval, the ALJ to transmit

agreement to the Authority for approval. 

b. Settlement agreement after case is transferred to 

Authority but before decision, the Trial Attorney:

· Drafts a Motion to the FLRA to remand the case to the 

RD for action consistent with the applicable agreement, 

e.g., approval of withdrawal request or approval of

informal settlement agreement/PSIWOC.

· In the unlikely event that a formal settlement is agreed 

to at this stage, transmits for RD an original and three 

copies to the OGC, which, in turn, transmits a Motion to 

the FLRA requesting approval.

 Part 1, Chapter H concerning Post Complaint/Pre-hearing 

Settlements; and 

Part 2, Chapter G concerning Settlements at Hearing. 
Post-Hearing Settlements 

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RESERVED
Briefs 

Office of the General Counsel 

Litigation Manual 3−0

B. BRIEFS

OVERVIEW:

Section 2423.33 provides for the filing of a post-hearing brief with 

an ALJ and § 2423.40 provides for the filing of exceptions, 

oppositions and cross-exceptions, and supporting briefs with the 

Authority (See Part 3, Chapter F concerning Exceptions). Section 

2423.26(c) and (d) provides for the filing of a brief directly with the 

Authority after the Authority has granted the parties’ joint motion to 

decide the case based on the parties’ stipulations of fact. 

OBJECTIVE: 

To establish quality standards to ensure that briefs submitted on 

behalf of the GC are of a high level of quality and that those 

standards of quality will be the same regardless of which RO 

submits the brief; to establish a standard format for briefs filed with 

the OALJ or the Authority; and to provide guidance concerning filing 

and service requirements.

1. QUALITY STANDARD CRITERIA APPLICABLE TO ALL BRIEFS:

· The brief is well organized, thorough, and clearly written; 

· The facts relied upon to establish the violation and the remedy 

are supported by citation to the record or by stipulation; 

· The brief accurately represents the GC’s position as reflected in 

Guidance Memoranda; Advice Memoranda; and other Policy 

Pronouncements; 

· The lead, most current and relevant precedent is cited to support 

all legal arguments, including, as appropriate, a statutory 

analysis; the Statute’s legislative history; relevant Authority and 

court decisions; applicable NLRB decisions; and other applicable 

court and/or administrative decisions; 
Briefs 

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· Legal arguments are concisely and persuasively presented and 

are well reasoned; 

· All relevant issues are addressed in the brief, including all 

elements of the alleged violation, defenses that have been raised 

and the appropriate remedy requested; and 

· All regulatory processing requirements are met.

2. EXPLANATION OF CRITERIA:

a. The brief is well organized, thorough, and clearly 

written:

The brief represents the GC’s last chance to persuade either the ALJ or 

the Authority, on review of exceptions or in a stipulation, that the GC has 

sustained the burden of proof. Briefs are organized by a logical sequence 

of presentation of issues, facts, law and argument. Briefs set forth all 

factual and legal issues necessary for a determination, and are 

understandable. Each portion of the brief addressing the facts, legal 

support, argument, and remedy is accurately and persuasively presented. 

b. The facts relied upon to establish the violation 

and the remedy are supported by citation to the 

record or stipulation:

In briefs to ALJs and on exception to the Authority, the facts set forth are 

supported by evidence in the record or by facts contained in the 

stipulation. The brief contains citations to record testimony, exhibits, and 

stipulated facts. 

c. The brief accurately represents the GC’s position 

as reflected in guidance memoranda; advice 

memoranda; and other policy pronouncements: 

The brief accurately reflects the position taken by the 

GC in internal and external GC pronouncements, such
Briefs 

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as advice memoranda, Guidance Memoranda and other policy 

pronouncements that have been communicated to the Regions. These 

pronouncements, when applicable, are applied to the particular factual 

situations and nuances of the case. 

d. The lead, most current and relevant precedent is

cited to support all legal arguments, including, as

appropriate, a statutory analysis; the statute’s 

legislative history; relevant authority; court 

decisions; analogous NLRB decisions; and other 

applicable court and administrative decisions: 

The brief reflects that all relevant issues, whether 

relating to procedural matters, the legal elements of the 

violation or the appropriate remedy, have been 

thoroughly researched. The brief relies, in descending 

order, on the plain wording of the Statute, its legislative 

history, relevant Authority and court decisions, 

applicable NLRB decisions and other applicable court 

and administrative decisions to support the GC’s 

interpretation of the Statute or other controlling laws 

and regulations. 

e. Legal arguments are concisely and persuasively 

presented and are well reasoned: 

Legal arguments, which include the application of the 

law to the facts, are presented in a concise and 

persuasive manner. Legal arguments are well thoughtout and possible shortcomings are explored and 

addressed. The facts, the law, and legal arguments are 

presented in a persuasive and supportable manner. 
Briefs 

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f. All relevant issues are addressed in the brief, 

including all elements of the alleged violation(s),

defenses that have been raised, and the 

appropriate remedy: 

Briefs to ALJs and to the Authority address all relevant 

issues, including the elements of the violation, defenses 

to the allegations and the remedy. Briefs in opposition 

to exceptions address the arguments raised in the 

exceptions. A brief to an ALJ also is responsive to any 

concerns raised by the ALJ at the hearing or suggested 

by the ALJ to be included in the brief. 

g. All regulatory processing requirements are met: 

All regulatory requirements for filing and serving a brief 

are met. Briefs are timely and properly filed and 

properly served. 

3. FORMAT FOR BRIEFS FILED EITHER BEFORE THE AUTHORITY OR AN 

ALJ:

Each brief filed by a Trial Attorney on behalf of the GC follows the 

following format: 

· Title Page; 

· Table of Contents; 

· Table of Authorities if brief is 25 or more pages (§ 2423.40(a)(3); 

(it is OGC policy to include a Table of Authorities in briefs of 

25 or more pages filed with an ALJ)); 

· Statement of the Case (procedural case history including date of 

hearing; allegations with explanation and dates); 
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· Issues (may include defenses, as necessary) (See 

ATTACHMENT 3B1 for examples of Issues); 

· Statement of Facts (with citations to the transcript; topic 

sentences; no cites to cases; recognition of opposing facts in 

footnotes); 

· Argument (mirror for each issue; state law with citation to 

Authority lead cases; argue credibility; address defenses; no 

string cites unless necessary; use parentheticals to give purpose 

or holding of case; citation to volume 50 and later cases); 

· Remedy (explain why; proposed Notice and Order); 

· Conclusion (what Trial Attorney wants ALJ to find); and 

· Draft of Proposed Order. 

See ATTACHMENT 3B2 for an example of a Brief filed in Defense 

Logistics Agency, Defense Distribution Region East, Defense Depot 

Susquehanna, New Cumberland, Pennsylvania, OALJD 98-15 (Jan. 29, 

1998) (no exceptions filed) (finding that in denying the union access to 

conduct asbestos tests, Respondent failed to furnish the union with 

information under § 7114(b)(4) and thereby violated § 7116(a)(1), (5) and 

(8) of the Statute). 

4. FILING AND SERVICE REQUIREMENTS:

All briefs filed with either the Authority or an ALJ must comply with the 

filing and service requirements set forth at Part 2429 of the Regulations. 

 

 Part 3, Chapter F concerning Exceptions.
Briefs 

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RESERVED
ALJ Analysis 

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C. ALJ ANALYSIS

OVERVIEW:

An ALJ Analysis informs the GC about decisions issued by an ALJ 

concerning ULP complaints which have issued under the GC’s 

statutory authority, and provides information to the GC so that OGC 

exceptions and oppositions to exceptions can be coordinated. 

OBJECTIVE:

To provide guidance concerning the characteristics of, and 

information contained in, an ALJ analysis.

1. AN ALJ ANALYSIS IS:

a. Normally completed on the internal OGC form at

ATTACHMENT 3C; 

b. An internal, confidential document that is not 

disclosable to the parties or the public; 

c. Drafted by the Trial Attorney who tried the case; 

d. Sent to the Deputy GC by fax within one week 

after the Region receives the ALJ decision; and

e. Completed and faxed only when an ALJ has 

issued a decision. 

2. INFORMATION CONTAINED IN AN ALJ ANALYSIS:
ALJ Analysis 

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The following information is included in an ALJ analysis. Additional 

information may be submitted if necessary. RAs may discuss the filing of 

exceptions with the Deputy GC at their option prior to filing the ALJ 

Analysis: 

· Case name; 

· Trial Attorney’s name; 

· Whether the OGC was involved in the decision to issue 

complaint. If so, Advice Memorandum No., date of appeals 

remand or date of oral advice; 

· Allegations in the complaint and the affirmative remedy sought, if 

any; 

· Name of the ALJ; 

· Date of the original complaint; 

· Date of the hearing; 

· Date of the GC brief; 

· Date of the ALJ decision; 

· ALJ holding (List for each allegation the result and affirmative 

order, if any); 

· If whole or partial dismissal, or proposed affirmative remedy is 

rejected--give the ALJ’s reason. (Note whether determinative 

facts changed from those discovered during the investigation, or 

if new facts appeared at the hearing not known to the Region, or 

if the ALJ found the GC witness not credible, or if the ALJ 

rejected the GC’s statement of the law, or if the ALJ rejected the 

GC’s application of the law.); 

· Exceptions (Discuss the Region’s intent to file exceptions. If no 

exceptions to a partial or whole dismissal are being filed, explain 

why and discuss what has changed since issuance of the 

complaint, other than the ALJ’s decision); and 

· Any other applicable comments. 
Post-Hearing Motions 

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Litigation Manual 3−0

 D. POST-HEARING MOTIONS 

OVERVIEW:

After the hearing closes there are certain matters that the Trial 

Attorney addresses in post-hearing motions to the ALJ or the 

Authority. 

OBJECTIVE:

To provide guidance concerning the type of motions that are filed 

post-hearing, both before an ALJD and after an ALJD but before an 

Authority decision.

1. BEFORE AN ALJD:

a. Motion to strike:

A motion to strike is filed by a party seeking to remove 

evidence and/or an argument from the record. A 

motion to strike is appropriate if a brief refers to matters 

not in evidence or part of the record. See 

ATTACHMENT 3D for an example of a Motion to Strike. 

b. Motion to reopen the record: 

See Part 2, Chapter FF, above. 

c. Motion to correct the transcript:

Upon receipt of the official transcript of a hearing, the 

Trial Attorney reads the transcript to ensure that the 

testimony and evidentiary rulings are accurately 
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recorded. The Trial Attorney files a written Motion to 

Correct the Transcript with the ALJ if a correction needs 

to be made to the transcript. Pursuant to § 

2423.21(b)(4), this motion is filed within 10 days after 

receipt of the transcript. 

See, e.g., Veterans Administration, Washington, D.C. 

and Veterans Administration Medical Center, 

Leavenworth, Kansas, 32 FLRA No. 126, 32 FLRA 855, 

861 n.1 (1988) (ALJD) (Granting GC’s unopposed 

motion to correct the Transcript); and Department of 

Veterans Affairs Medical Center, Denver Colorado, 

52 FLRA No. 2, 52 FLRA 16, 30 n.2 (1996) (ALJ 

granted unopposed motion to correct the transcript).

2. EITHER BEFORE AN ALJD OR BEFORE AN AUTHORITY DECISION:

a. Motion to Strike: 

The Trial Attorney files a Motion to Strike when a Respondent refers to 

matters or documents that were not made a part of the record either 

before the ALJ or included as part of a stipulation, and when a response to 

the GC’s exceptions is untimely filed. 

See U.S. Department of Commerce, National Oceanic and Atmospheric 

Administration, National Ocean Service, Coast and Geodetic Survey, 

Aeronautical Charting Division, Washington, D.C., 54 FLRA No. 92, 

54 FLRA 987, 1004-05 n.10 (1998) (Authority granted GC’s motion to 

strike two exhibits attached to Respondent’s exceptions that were not 

presented to the ALJ); SBA, 54 FLRA No. 83, 54 FLRA 837, 843-44 n.5 

(1998) (Authority granted Respondent’s motion to strike exhibits attached 

to Charging Party’s exceptions which were pleadings or exhibits filed in 

other forums but denied motion to strike exhibits that were either matters

of public record or matters already in the record in the case); USDA Forest 

Service Pacific Northwest Region, Portland, Oregon, 48 FLRA No. 89, 

48 FLRA 857, 857 n.1 (1993) (FLRA granted the GC’s motion to strike 

portions of the Respondent’s brief which referred to documents not 

included as part of a stipulation); U.S. Department of Health and Human 
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Services, Social Security Administration, 50 FLRA No. 50, 50 FLRA 296, 

298 (1995) (motion to strike a response to exceptions that was untimely 

filed is appropriate). 

b. Motion for Expedited Treatment: 

At times the issues involved in a particular case are novel and may be the 

basis for decisions in other cases. In these instances, and after 

consultation with the Deputy GC, it is appropriate to file a motion with the 

presiding ALJ or the FLRA, as appropriate, requesting expedited 

treatment. There may also be particular cases where excessive delay 

might adversely impact the ability of the FLRA to remedy the ULP 

allegations. While temporary relief under the OGC’s Injunction Policy (see

Part 1, Chapter E) may not be appropriate, expedited treatment by the ALJ 

and/or the FLRA would be appropriate. 

3. AFTER AN ALJD BUT BEFORE AN AUTHORITY DECISION:

Motion for Oral Argument to the Authority: 

At times the issues involved in a particular case will significantly impact 

the Federal labor relations program. In these instances, and after 

consultation with the Deputy GC, it is appropriate to file a motion with the 

FLRA requesting permission to argue the case orally. Although 

§ 2423.30(e) provides for the right to argue orally before the ALJ, there is 

no automatic right to argue orally before the FLRA, and oral arguments 

have only occurred in a limited number of instances. Even if the request is 

denied, it will place the FLRA on notice that the case is significant. 

 The Authority may set oral argument sua sponte. See, e.g., 

Social Security Administration, 52 FLRA No. 114, 52 FLRA 1159, 

1164 n.4 (1997) (in a novel case on remand from the D.C. Circuit, 

Authority published a Notice of Oral Argument and provided 

interested parties the opportunity to submit amicus curiae

briefs).

4. AFTER AN AUTHORITY DECISION:

Motion for Reconsideration: 

After a final decision or order by the FLRA, a party who can establish 

“extraordinary circumstances” is permitted to file a motion for 

reconsideration with the FLRA under § 2429.17. Extraordinary 
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circumstances have only been found in a limited number of situations 

which include: 

· An intervening court decision or change in the law affected 

dispositive issues; 

· Evidence, information or issues crucial to the decision, had not 

been presented to the Authority; 

· The Authority had erred in its remedial order, process, conclusion 

of law, or factual finding; and 

· A party has not been provided with an opportunity to address an 

issue raised sua sponte by the FLRA. 

U.S. Department of the Air Force, 375th Combat Support Group, Scott Air 

Force Base, Illinois, 50 FLRA No. 16, 50 FLRA 84, 86-87 (1995) and 

cases cited at nn.1-7; United States Department of Agriculture, Farm 

Service Agency, Kansas City, Missouri, 55 FLRA No. 10, 55 FLRA 22, 24 

(1998) (Authority rejected consideration of procedurally deficient 

document).

The Deputy GC is consulted on whether to file a Motion for 

Reconsideration.

 (1) Mere disagreement with the FLRA’s conclusion does not 

satisfy the extraordinary circumstances requirement. Id. at 87.

 (2) The Trial Attorney files timely responses to all Motions for 

Reconsideration filed by the opposing party’s counsel.

5. PROCESSING REQUIREMENTS:

See Part 1, Chapter L (subsection 1). 

 Part 1, Chapter E concerning Injunctions; 

Part 1, Chapter L concerning Pre-hearing Motions; and 

Part 2, Chapter FF concerning Reopening of GC’s Case. 
Injunctions after ALJ Issues Decision 

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 E. INJUNCTIONS AFTER ALJ ISSUES DECISION 

OVERVIEW:

After issuance of an ALJD, as applicable, the Regions address 

matters concerning injunctions. 

OBJECTIVE: 

To provide guidance concerning advising district courts of the 

dismissal of a complaint; settlement of injunction matters; and 

injunctions after issuance of an Authority decision and order.

1. ALJ RECOMMENDS THAT COMPLAINT BE DISMISSED AFTER 

APPROPRIATE TEMPORARY RELIEF OBTAINED:

If subsequent to obtaining appropriate temporary relief, an ALJ 

recommends that the complaint be dismissed, in whole or in part, the 

Region, in accordance with § 2423.10(d), informs the district court which 

granted the temporary relief of the possible change in circumstances 

arising out of the ALJD. 

2. SETTLEMENT OF INJUNCTION MATTER AND THE ULP AFTER ISSUANCE 

OF ALJD:

The Regions continue to pursue settlement of the injunction action and the 

underlying ULP complaint even after an ALJ issues a decision. The 

Regions attempt to resolve both matters simultaneously, although RDs 

have discretion to resolve only the injunction action if it will effectuate the 

purposes and policies of the Statute. 

3. INJUNCTIONS AFTER ISSUANCE OF AN AUTHORITY DECISION AND 

ORDER:

Pursuant to § 7123(c) of the Statute, upon the filing of a petition for judicial 

review by party or a petition for enforcement by the Authority with a United 

States circuit court of appeals, the court has jurisdiction to grant any 

temporary relief (including a restraining order). The Authority’s Solicitor’s 

Office represents the GC in court. 
Injunctions after ALJ Issues Decision 

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 Part 1, Chapter E concerning Injunctions.
Exceptions 

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F. EXCEPTIONS

OVERVIEW:

The contents of exceptions include: (1) the specific findings, 

conclusions, determinations, rulings, or recommendations being 

challenged; (2) the grounds relied upon; and (3) the relief sought. 

Briefs supporting exceptions set forth: (1) all relevant facts; (2) the 

issues to be addressed; and (3) a separate argument for each 

issue. See Part 3, Chapter B, above. Any party may file an 

opposition to exceptions and/or cross-exceptions. Exceptions are 

filed in a separate document along with a supporting brief. 

OBJECTIVE: 

To provide guidance on: (1) circumstances warranting the filing of 

exceptions to an ALJD; (2) substantive and procedural 

considerations; and (3) criteria and issues relating to the filing of 

cross-exceptions and/or oppositions to exceptions.

1. BASES FOR FILING EXCEPTIONS:

The Trial Attorney files exceptions if one or more of the following is 

present in the case: 

· An opportunity to develop legal precedent; 

· The ALJ has either misapplied, ignored, or distorted an existing 

legal doctrine or analytical standard; 

· The ALJ has failed to make specific factual findings supported by 

the record or the ALJ has made the required factual finding but 

failed to consider this factual finding in reaching his/her 

conclusion of law; 

· The ALJ’s credibility determinations are erroneous and are based 

on considerations other than witness demeanor, such as: (1) the 

witness’s opportunity and capacity to observe the event in 

question; (2) the witness’s character as it relates to honesty; (3) 

prior inconsistent statements by the witness; (4) the witness’s 
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bias or lack thereof; (5) the consistency of the witness’s 

testimony with other record evidence; and (6) the inherent 

improbability of the witness’s testimony. Department of the Air 

Force, Air Force Materiel Command, Warner Robins Air Logistics 

Center, Robins Air Force Base, Georgia, 55 FLRA No. 194, 

55 FLRA 120, 1204-05 (2000) (Warner Robins) (citations 

omitted); U.S. Department of Commerce, National Oceanic and 

Atmospheric Administration, National Oceans Service, Coast 

Guard and Geodetic Survey, Aeronautical Charting Division, 

Washington, D.C., 54 FLRA No. 92, 54 FLRA 987, 1006-07 

(1998) (where credibility determinations are based on 

considerations other than witness demeanor, the Authority 

reviews the record as a whole, i.e., reasons for deferring to the 

ALJ are less compelling). 

Thus, before filing exceptions to an ALJ’s credibility 

determination, the Region needs to establish that: (1) the error in 

the credibility determination concerned material facts that would 

result in a finding of a violation; and (2) there is record evidence 

supporting one of the five factors listed above that shows that the 

 the ALJ clearly erred in making a credibility determination. 

Where a credibility determination is made solely on the basis of 

the ALJ’s judgment regarding a witness’s demeanor, no 

exceptions are filed. 24th Combat Support Group, Howard Air 

Force Base, Republic of Panama, 55 FLRA No. 45, 55 FLRA 

273, 279 (1999); American Federation of Government 

Employees, Local 3615, AFL-CIO, 53 FLRA No. 123, 53 FLRA 

1374, 1375 (1998) (Authority will not overrule an ALJ’s credibility 

determination unless a clear preponderance of all relevant 

evidence demonstrates that the determination is incorrect 

because only an ALJ has had the benefit of observing the 

witnesses while they testified); Bureau of Engraving and Printing, 

Western Currency Facility, Fort Worth, Texas, 51 FLRA No. 85, 

51 FLRA 1014, 1015 (1996) (citing standard for overruling an 

ALJ’s credibility determination); see also ULPCHM Part 4, 

Chapter D concerning Regional Director Merit Determinations;

compare Warner Robins, 55 FLRA at 1204. 

· The ALJ failed to address a particular remedial request. See

U.S. Department of Health and Human Resources, Social 

Security Administration, 50 FLRA No. 50, 50 FLRA 296, 298-300 

(1995) (GC excepted to ALJ’s failure to address request for 

make-whole relief). 

· The ALJ’s conduct at the hearing failed to conform to minimal 

standards of judicial behavior. U.S. Department of Veterans 
Exceptions 

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Affairs, Medical Center, Jamaica Plain, Massachusetts, 51 FLRA 

No. 73, 51 FLRA 871, 875, 877 (1996) (GC excepted to ALJ’s 

inappropriate behavior, interrupting counsel six times, refusing to 

allow counsel to complete a sentence repeating a phrase “that’s 

a lot of hot air”). 

The Trial Attorney examines the ALJD in light of the above factors and 

makes a recommendation to the RA. The Deputy GC is contacted if a 

determination is made not to file exceptions, and the reasons for this 

conclusion are included in the ALJ Analysis.

2. FORMAT AND CONTENT OF EXCEPTIONS:

a. Format:

Exceptions and the supporting brief are two documents with separate title 

pages and headings for each. They may be stapled together but should 

easily be identifiable as two separate documents. 

 But see Air Force Flight Test Center, Edwards Air Force Base, 

California, 55 FLRA No. 21, 55 FLRA 116, 118 (1999) 

(Respondent’s labeling of “issues to be argued” considered as 

“exceptions” and §§ 2423.26-.28 do not require parties to file 

exceptions and supporting brief in two separate documents).

b. Content: 

· Exceptions should mirror sections of the Argument in the brief — 

discuss violation and elements of; and 

· Address other specific findings of ALJ alleged to be in error. If 

the Trial Attorney fails to file exceptions to specific factual 

findings that may relate to other factual findings that were 

excepted to, the Authority may nevertheless adopt the findings 

without precedential significance pursuant to § 2423.41. See, 

e.g., U.S. Department of Housing and Urban Development, 

Rocky Mountain Area, Denver, Colorado, 55 FLRA No. 99, 

55 FLRA 571, 573 (1999) (complaint alleging unilateral change 

dismissed notwithstanding past practice of deviating from a 

provision that requires a union official to sign in and out of work – 

no exceptions filed concerning ALJ’s finding with respect to 
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another provision of the parties’ agreement that bars any local 

arrangements that contradict the agreement). 

See ATTACHMENT 3F1 for examples of Exceptions and ATTACHMENT 

3F2 for an outline of a brief specifically showing how Exceptions have 

been incorporated. 

3. WAIVER AND THE SUFFICIENT PARTICULARITY STANDARD: 

a. Exception not argued is waived:

If issues of law or fact were not preserved for appeal 

during the trial stage, review is precluded. 

See § 2429.5 which states that “[t]he Authority will not 

consider evidence offered by a party, or any issue,

which was not presented in the proceedings before the . 

. . Administrative Law Judge . . . .” Federal Aviation 

Administration, 55 FLRA No. 203, 55 FLRA 1271, 1274 

 (2000) (exception dismissed because Respondent 

failed to raise the rescinded OPM regulation before the 

ALJ as its defense for repudiating an MOU); 

Department of Transportation, Federal Aviation 

Administration, Fort Worth Texas, 55 FLRA No. 157, 55 

FLRA 951, 956-57 (1999) (arguments concerning 

enforceability of MOU which could have been raised in 

defending the alleged repudiation and cannot be made 

for the first time in exceptions); U.S. Penitentiary, 

Leavenworth, Kansas, 55 FLRA No. 127, 55 FLRA 704, 

716 (1999) (Authority did not consider “covered by” 

argument because Respondent did not raise “covered 

by” defense before the ALJ); 24th Combat Support 

Group, Howard Air Force Base, Republic of Panama, 

55 FLRA No. 45, 55 FLRA 273, 281 n.12 (1999); U.S. 
Exceptions 

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Department of Justice, Federal Bureau of Prisons, FCI 

Danbury, Connecticut, 55 FLRA No. 37, 55 FLRA 201, 

204 (1999) (Authority declined to consider management 

right issue not raised to ALJ and “changes of position 

on an issue dealt with below are covered under the 

general rule prohibiting the raising of new issues on 

appeal”); U.S. Department of Energy, Western Area 

Power Administration, Golden, Colorado, 56 FLRA No. 

2, 56 FLRA 9 (2000) (Respondent is precluded from 

relying on certain provisions of parties’ agreement

where the argument was not based on such provisions

before the ALJ) petition for review filed sub nom. U.S. 

Department of Energy, Western Area Power 

Administration, Golden, Colorado v. FLRA, No. 00-1162 

(D.C. Cir. filed Apr. 14, 2000); Department of Veterans 

Affairs, Medical Center, Muskogee, Oklahoma, 

53 FLRA No. 103, 53 FLRA 1228, 1229 (1998) 

(rejecting exceptions based upon evidence or issues

that could have been, but were not, raised before ALJ); 

Social Security Administration, Baltimore, Maryland, 53 

FLRA No. 87, 53 FLRA 1053, 1060 (1997) (to the same

effect); National Naval Medical Center, 54 FLRA No. 

93, 54 FLRA 1078, 1079 and n.1 (1998) (mere 

mentioning of pay and Thrift Savings Plan issues in

opening statement is not sufficient notice to 

Respondent that issues are in dispute; claim that seeks 

monetary relief that was not sought before the ALJ was 

not properly before the Authority); U.S. Department of 

the Air Force, 375th Mission Support Squadron, Scott 

Air Force Base, Illinois, 51 FLRA No. 54, 51 FLRA 599, 

599-600 n.1 (1995) (rejecting GC’s argument which had 

not been argued before the ALJ); but cf. U.S. 
Exceptions 

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Department of Transportation, Federal Aviation 

Administration, Northwest Mountain Region, Renton, 

Washington, 55 FLRA No. 46, 55 FLRA 293, 298 n.6 

(1999) (Authority denied GC’s motion to strike the 

Respondent’s references to the cost of complying with 

the ALJ’s order, finding such evidence that was directed 

toward compliance with the ALJ’s remedy and to 

alleged deficiencies in that remedy could not have been 

presented to the ALJ), petition for review filed sub nom.

Department of Transportation, Federal Aviation Administration, Northwest 

Mountain Region, Renton, Washington v. FLRA, (D.C. Cir. Apr. 29, 1999). 

 But, the Authority will consider an argument made in response to 

an ALJ’s finding which was not argued or alleged in the 

complaint, and, as such, could not have been made prior to the 

ALJD. Department of the Air Force, Grissom Air Force Base, 

Indiana, 51 FLRA No. 2, 51 FLRA 7, 11 (1995) (GC’s argument 

based on ALJ’s finding considered by Authority).

b. “Sufficient particularity” standard:

 The Authority has historically avoided rejecting 

exceptions or supporting briefs because they fail to 

comply with certain requirements relating to the content 

of exceptions and briefs. See United States Customs 

Service, South Central Region, New Orleans District, 

New Orleans, Louisiana, 53 FLRA No. 67, 53 FLRA 

789, 794 (1997) (Customs Service, South Central 

Region) (exceptions set forth portions of ALJ decision 

with “sufficient particularity” under then-§ 

2423.27(a)(2)); U.S. Department of Veterans Affairs, 

Veterans Affairs Medical Center, Dallas, Texas, 

51 FLRA No. 77, 51 FLRA 945, 950-51 (1996) (to the 
Exceptions 

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Litigation Manual 3−6

same effect); Long Beach Naval Shipyard, 44 FLRA No. 

83, 44 FLRA 1021, 1036 (1992) (brief in support of 

exceptions is sufficient under then-§ 2423.28(a)).

However, under § 2423.41(a), the “[f]ailure to comply 

with any filing requirement established in § 2423.40

may result in the information furnished being 

disregarded” (emphasis added). 

 Where no ground is stated to support an exception, the Authority 

adopts the ALJ’s conclusion. E.g., Internal Revenue Service, 

Austin District Office, Austin, Texas, 51 FLRA No. 95, 51 FLRA 

1166, 1176 (1996).

c. Reference to evidence not in record not 

considered: 

Section 2429.5 of the Regulations provides that the

Authority will not consider evidence offered by a party 

that was not first presented in the proceedings before 

the ALJ. Customs Service, South Central Region, 

53 FLRA at 794. 

d. ALJ findings adopted without precedential 

significance: 

Pursuant to § 2423.29(a), the Authority will adopt, 

without precedential significance, those findings to 

which no exceptions were filed. 24th Combat Support 

Group, Howard Air Force Base, Republic of Panama, 

55 FLRA No. 45, 55 FLRA 273, 281 n.13 (1999). 
Exceptions 

Office of the General Counsel 

Litigation Manual 3−7

4. CRITERIA FOR FILING CROSS-EXCEPTIONS AND OPPOSITION:

a. Cross-exceptions: Situations which may require 

the filing of cross-exceptions: 

· The ALJ has failed to provide all the 

remedies sought by the GC; 

See, e.g., F.E. Warren Air Force Base, 

Cheyenne, Wyoming, 52 FLRA No. 17, 52 

FLRA 149, 153 (1996) (GC excepted to 

ALJ’s failure to recommend order that was 

neither onerous nor punitive). 

· The ALJ has found a violation but on a 

different ground than that argued by the 

GC or has rejected a particular theory that 

the GC wishes to raise on appeal. See, 

e.g., U.S. Department of Justice, 

Immigration and Naturalization Service, 

New York, Office of Asylum, Rosedale, 

New York, 55 FLRA No. 170, 55 FLRA 

1032 (1999) (Authority agreed with 

underlying basis of GC’s cross-exception 

that ALJ correctly found a violation of 

§ 7114(a)(2)(A) because the meeting 

concerned a grievance not a personnel 

policy); and 

· The GC has prevailed on a major issue in 

the case and the OGC had 

decided to accept the 

remedy ordered, but after 
Exceptions 

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Litigation Manual 3−8

the Respondent filed 

exceptions, the OGC 

decided to file crossexceptions to raise the 

remedy issue. 

b. Opposition to exceptions: 

· It is OGC policy to file an opposition to 

Respondent’s exceptions even where 

the exceptions raise nothing new and 

constitute mere disagreement with the 

ALJ’s conclusions; and 

· GC may simply incorporate by reference 

his/her post-hearing brief to the ALJ. 

 (1) A failure to file an opposition may lead the Authority to 

speculate why no opposition was filed; 

 (2) A party which has missed the deadline for timely filing an 

opposition may file a motion to strike in an attempt to challenge 

the GC’s exceptions. See Department of the Air Force, Grissom 

Air Force Base, Indiana, 51 FLRA No. 2, 51 FLRA 7, 

10-11 (1995) (Authority rejected Respondent’s motion to strike); 

 (3) The Regulations do not provide for the filing of a response to 

an opposition. U.S. Department of Labor, Washington, D.C., 

51 FLRA No. 41, 51 FLRA 462, 463 n.1 (1995) (Authority 

declined to consider GC’s motion to correct the record because it 

was construed as a response to an opposition); and 

 (4) Mootness -- Where Respondent files an exception alleging 

mootness, the Trial Attorney files an opposition because a case 
Exceptions 

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Litigation Manual 3−9

does not become moot simply because a particular remedy may 

no longer be appropriate. When a cease and desist order and 

the posting of notice remain viable remedies, a case is not moot 

unless the former exclusive representative is no longer 

recognized, and no individual rights are involved. See Federal 

Aviation Administration, 55 FLRA No. 44, 55 FLRA 254, 261 

(1999) (citation omitted).

5. EXTENSIONS OF TIME: 

Extensions of time to file documents with the Authority will be granted only 

if a party specifically requests such extension, i.e., GC, as a nonrequesting party, may not rely on extension of time granted to Charging 

Party or other allied party. Internal Revenue Service, Philadelphia Service 

Center, 54 FLRA No. 72, 54 FLRA 674, 681 (1998). 

 Part 3, Chapter B concerning Briefs.

 
Compliance with Authority Decisions 

3−0

G. COMPLIANCE WITH AUTHORITY DECISIONS

OVERVIEW:

Pursuant to § 2423.41(c), the Authority, upon finding of a violation 

of the Statute, “shall, in accordance with 5 U.S.C. [§] 7118(a)(7), 

issue an order directing the violator, as appropriate, to cease and 

desist from any unfair labor practice, or to take any other action to 

effectuate the purposes of the . . . Statute.” The RO attempts to 

obtain prompt and complete voluntary compliance with the terms of 

an Authority Order. In the case of a partial win, compliance efforts 

proceed notwithstanding the filing of a motion for reconsideration.

OBJECTIVE: 

To describe the responsibilities of the RO in effecting compliance 

with Authority remedial orders. 

RO RESPONSIBILITIES WHEN REMEDIAL ORDER ISSUES:

· Analyze the steps necessary to effectuate compliance; 

· Initiate, monitor, and report the status of compliance efforts; 

· Investigate alleged failures to comply; 

· Report to the RD, as required by section 2423.41(e), that the 

required remedial action has been effected; 

· Make appropriate recommendations for further formal action, 

where the Respondent allegedly fails to comply; and

· Participate, where appropriate, in the institution and maintenance 

of any formal action required. 
Office of the General Counsel 

Litigation Manual 3−1

RESERVED 
Attorney Fees 

Office of the General Counsel 

Litigation Manual 3−0

H. ATTORNEY FEES

OVERVIEW:

The Back Pay Act provides, in part, that an employee who is found 

to have been "affected by an unjustified or unwarranted personnel 

action which has resulted in the withdrawal or reduction of all or part 

of the pay, allowances, or differentials of the employee" is entitled to 

receive "all or any part of the pay, allowances, or differentials" which 

the employee normally would have earned or received during the 

period if the personnel action had not occurred and "reasonable 

attorney fees . . . awarded in accordance with standards 

established under section 7701(g) of this title . . . ." 5 U.S.C. 

§_5596(b)(1)(A)(i) and (ii) and OPM’s implementing regulations, 

specifically at 5 C.F.R. § 550.807, which concern the payment of 

reasonable attorney fees. 

Pursuant to Part 2430, which implements the Equal Access to 

Justice Act, 5 U.S.C. § 504, (EAJA), an award of attorney fees may 

be made to eligible individuals and entities who are parties and 

prevail in a ULP proceeding. 

OBJECTIVE: 

To describe when prevailing individuals or entities are entitled to 

attorney fees in proceedings before the OGC and the Authority 

under either the Back Pay Act or EAJA and the Region’s role in (1) 

deciding attorney fee requests during the settlement process based 

on an analytical framework; (2) refraining from taking a position 

should the ULP be litigated before an ALJ and/or the Authority; and 

(3) responding to fee requests made by a Charging Party under the 

EAJA. 

BACK PAY ACT
Attorney Fees 

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1. RDS HAVE DISCRETION ON WHETHER TO AWARD ATTORNEY FEES IN 

SETTLING ULPS PRIOR AND SUBSEQUENT TO ISSUANCE OF COMPLAINT 

BUT BEFORE LITIGATION: 

Before litigation ensues, whether before or after issuance of complaint, the 

settlement stage of a ULP involves the exercise of an RD’s discretion, as 

delegated by the GC. As part of this discretion, RDs may determine 

whether attorney fees under the Back Pay Act are warranted. An RD may 

decide to accept a settlement agreement without the imposition of attorney 

fees. 

2. SUMMARY OF ANALYTICAL FRAMEWORK FOR MAKING ATTORNEY FEE 

DETERMINATIONS WITH RESPECT TO SETTLEMENTS:

a. Threshold requirements:

The settlement of the ULP charge or complaint must be an informal 

settlement agreement approved by the RD that requires the payment of 

backpay under the provisions of the Back Pay Act and that the Region 

would have litigated the alleged ULP but for the approved settlement 

agreement. 

b. Standards for awarding attorney fees:

If the initial threshold determinations have satisfied the Back Pay Act, 

5 U.S.C. § 5596(b)(1)(A)(ii) provides that fee requests must be judged 

under the following standards for awarding attorney fees provided in 

5 U.S.C. § 7701(g): 

i. Who may incur attorney fees? 

Incurrence of attorney fees may be incurred by a union’s staff 

attorney, an 

attorney retained by 

the union, or an 

attorney retained by 

the individual 

employee. 

ii. The employee must be the prevailing party. 
Attorney Fees 

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Litigation Manual 3−2

This requirement is met if the employee has obtained all or a 

significant part of the relief sought. 

iii. The interest of justice standard is met. 

See Allen v. United States Postal Service, 2 MSPR 420 (1980) 

where, if any of five criteria is satisfied, an award of attorney fees 

is warranted under the interest of justice standard; see also

National Association of Government Employees, Local R5-188 

and U.S. Department of the Air Force, Seymour Johnson Air 

Force Base, North Carolina, 54 FLRA No. 122, 54 FLRA 1401

(1998) (discussion of "interest of justice" standard). 

Only if this standard is met may an RD approve a settlement with 

attorney fees. If the standard is not met, no attorney fees are 

approved in the settlement agreement and a unilateral settlement 

agreement is approved, accompanied by a letter which states, 

among other things, both the reasons why attorney fees were not 

approved and the right to appeal such determination to the GC. 

iv. The amount of the award must be reasonable. 

The RD can, but need not, decide an exact amount in approving 

a settlement agreement. In a bilateral settlement agreement, the 

parties may agree to incorporate an exact amount of attorney 

fees as a term of the agreement or they may agree to work out 

the details in compliance. In any event, hours must be 

reasonably expended and the rate is judged according to the 

“market rate.” See National Association of Government 

Employees, Local R4-6 and the U.S. Department of the Army, 

Fort Eustis, Virginia, 54 FLRA No. 137, 54 FLRA 1594 (1998) 

(reasonableness of the amount of attorney fees); and American 

Federation of Government Employees, Local 2241 and U.S. 

Department of Veterans Affairs, Medical Center, Denver, 

Colorado, 49 FLRA No. 127, 49 FLRA 1403 (1998) 

(reasonableness of amount of attorney fees). 

3. ATTORNEY FEES REQUESTS BEFORE AN ALJ: 

A union can request attorney fees before an ALJ at the hearing, in posthearing brief, or on motion to the ALJ after the ALJ has recommended a 

decision and order. In keeping with the Regions’ role as a neutral third 
Attorney Fees 

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Litigation Manual 3−3

party representing the public interest, it is inappropriate for the OGC to 

take a position as to whether attorney fees are warranted and the amount 

of any such fees.

4. WHEN A CHARGING PARTY REQUESTS ATTORNEY FEES FROM THE 

AUTHORITY IN CASE WHERE AUTHORITY HAS FOUND A ULP: 

As in the preceding paragraph, the Trial Attorney refrains from taking a 

position with respect to the attorney fees request and the amount of any 

such fees.

EQUAL ACCESS TO JUSTICE ACT (EAJA) 

1. APPLICABLE PRINCIPLES UNDER THE (EAJA): 

A Respondent Union that prevails in a ULP proceeding before the 

Authority may not prevail in a request for attorney fees under the EAJA 

from the OGC, notwithstanding eligibility and success, if the GC’s “position 

in the proceeding was substantially justified, or special circumstances 

make an award unjust.” § 2430.1. “Substantially justified” depends on 

whether the position has a “reasonable basis in law or fact.” American 

Federation of Government Employees, Local 987, 55 FLRA No. 71, 

55 FLRA 432, 434-35 (1999) (citations omitted). 

2. REGIONS FILE OPPOSITION TO ATTORNEY FEES REQUESTED UNDER 

EAJA:

Even if the Charged Party prevails, the GC’s position may be “substantially 

justified.” Id. at 436 (where the Authority had not previously ruled on 

dispositive issues it decided in case, even though GC did not prevail, GC 

had a reasonable basis in fact and law to pursue the litigation). 

a. Opposition to fee application before the ALJ:

Where a Union prevails in a ULP case before the ALJ, and files a fee 

application asserting that the GC’s position was not substantially justified, 

the Region files an opposition to the fee application that explains in detail 

the reasonable basis/es in law and fact for maintaining the litigation. 

b. Exceptions filed with the Authority: 
Attorney Fees 

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Should a Union prevail before the ALJ, the Trial Attorney files exceptions 

with the Authority. 
Attorney Fees 

Office of the General Counsel 

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 RESERVED 
Index 

Office of the General Counsel 

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−0

INDEX

ADMISSION ........................................................................................................ 1A-7

ADVERSE INFERENCE ........................................................ 2J-3, 2L-1-2L-3, 2GG-3

Drawing is not mandatory ..................................................................... 2L-1

Failure of witness to testify regarding a particular matter ...................... 2L-3

Failure to call as a witness .................................................................... 2L-2

Failure to produce documents .............................................................. 2L-3

Pre-trial preparation .............................................................................1J-12

When to request ................................................................................... 2L-1

ADVERSE OR HOSTILE WITNESS .......................................................... 2U-1-2U-3

How to put on the stand ........................................................................ 2U-2

Pre-trial preparation .............................................................................1J-12

Rule 611(c)............................................................................................ 2U-1

Unwilling or biased witness ................................................................... 2U-3

AFFIDAVITS ....................................................................................................... 2T-4

Jencks .......................................................................................... 2T-4, 2T-5

Motion for Summary Judgment ............................................................. 1F-3

Past recollection recorded ................................................. 1J-3, 2S-8, 2S-9

Preparing witness for use on cross-examination ...................................1J-3

Refreshed recollection at hearing ......................................................... 2S-6

Release of affidavits ............................................................................... 1I-2

Respondent’s statements/affidavit .......................................................1J-19

Review of evidence in case file ............................................................. 1C-8

Use of at hearing ....................................................................................1J-3

AFFIRMATIVE DEFENSE

Burden of Proof ..................................................................................... 2P-2

Pre-hearing conference......................................................................... 1Q-3

Review of answer to complaint ............................................................. 1C-7

Sanctions ...............................................................................................2J-4

Trial attorney opening statement ........................................................... 2Q-3

ALJ ANALYSIS ......................................................................................... 3C-1, 3C-2

Information contained in ........................................................................ 3C-1

What is it ............................................................................................... 3C-1

ALJ INVOLVEMENT AND DECORUM AT HEARING ............................... 2D-1-2D-5
Index 

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−1

Comments, questions or conversations during the hearing .................. 2D-3

Decorum ............................................................................................... 2D-3

Ex parte communication ....................................................................... 2F-3

Inquiry into the facts .............................................................................. 2D-1

Offering of documentary evidence ........................................................ 2D-2

Procedure when ALJ’s conduct is improper ......................................... 2D-4

Questioning of witnesses ...................................................................... 2D-1

Standard of ALJ conduct ...................................................................... 2D-3

AMENDED CHARGE ................................................................................ 1C-2, 1C-3

Formal documents ................................................................................ 1N-2

Response to .......................................................................................... 1C-4

When to obtain ..................................................................................... 1C-3

AMENDED COMPLAINT

Answer to .............................................................................................. 1C-7

File an amended complaint, when to .................................................... 1C-5

Filing ..................................................................................................... 1C-5

Formal documents ................................................................................ 1N-2

Motion to amend ................................................................................... 1C-6

Motion to sever .................................................................................... 1L-10

ANALYSIS OF CASE FILE ...................................................................... 1C-1-1C-10

Amended charge .................................................................................. 1C-3

Amended complaint .............................................................................. 1C-5

Charge .................................................................................................. 1C-2

Motion to Amend Complaint, example of ............................................ 1C-11

Review of charge .................................................................................. 1C-2

Review of complaint .............................................................................. 1C-4

Review of evidence ............................................................................... 1C-8

Settlement efforts and potential for ....................................................... 1C-9

Task list ................................................................................................. 1C-8

ANSWER ............................................................................................................ 1A-7

Fed R. Civ. P. 8(d). .............................................................................. 1A-7

ATTORNEY FEES ..................................................................................... 3H-1-3H-4

Analytical framework ............................................................................. 3H-2

Back Pay Act ........................................................................................ 3H-1

Equal Access to Justice Act ........................................................ 3H-1, 3H-4

Equal Access to Justice Act, opposition to .......................................... 3H-4

GC's neutral role ................................................................................... 3H-3
Index 

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−2

BACK PAY ACT

Attorney fees ......................................................................................... 3H-2

BACKPAY ................................................................................................. 1D-2, 3H-2

Analytical framework for making determinations ................................... 3H-2

Opening statement, remedy .................................................................. 2Q-3

Remedy ....................................................................................... 1D-2, 1D-7

BIAS

ALJ conduct at hearing ......................................................................... 2D-3

BRIEFS ..................................................................................................... 3B-1-3B-5

Contents of brief in support of motion for summary judgment .............. 1F-4

Ethical responsibility to file .................................................................... 2F-3

Exceptions .......................................................................... See Exceptions

Explanation of criteria ............................................................................ 3B-2

Filing and service requirements ............................................................ 3B-5

Format ................................................................................................... 3B-4

Motion to strike ...................................................................................... 3D-1

Post-hearing brief inquiry ................................................................... 2HH-1

Quality standard criteria ........................................................................ 3B-1

Remedy ................................................................................................. 1D-6

Role of charging party ........................................................................... 2F-3

BURDEN OF PROOF................................................................................ 2P-1, 2P-2

Definition of preponderance of the evidence......................................... 2P-2

GC’s burden ..........................................................................................2P-1

Inform charging party representative of ................................................. 1I-2

Remedy ................................................................................................. 1D-1

Respondent's burden of proving affirmative defenses .......................... 2P-2

CALENDAR CALL .............................................................................................. 1A-6

CHARGING PARTY

Affidavits, release to ............................................................................... 1I-2

Amending the charge ............................................................................ 1C-3

CO cases and need for subpoenas....................................................... 1K-1

Difficult charging party at hearing.......................................................... 2Y-2

Difficult charging party representative at pre-trial ................................ 2Y-2

Ethics .................................................................................................... 2F-2

Motion to sequester ............................................................................... 2H-3

Nontraditional remedy, notice to ........................................................... 1D-6
Index 

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−3

Objections to legal strategy ......................................................... 2E-2, 2F-4

Participation at hearing ......................................................................... 2E-2

Preparation of witnesses ........................................................................ 1I-2

PSIWOC ............................................................................................... 1H-1

Relationship with .......................................................................... 1I-13, 1I-2

Representative's role is determined before the hearing ....................... 2E-2

Settlement at hearing ............................................................................ 2G-1

Settlement discussions ........................................................................... 1I-1

Settlement judge program .................................................................... 1H-9

Unilateral settlement ..........................................................1H-5, 2G-2, 3A-2

CLOSING ARGUMENT ....................................................................... 2GG-1-2GG-7

Bench decision and oral argument .................................................... 2GG-3

Benefits derived from presentation of ................................................ 2GG-1

Objections to ...................................................................................... 2Z-14

Oral argument in lieu of brief ............................................................. 2GG-2

COMPLAINT

Amended .............................................................. See Amended Complaint

Answer to .............................................................................................. 1A-7

Case file analysis, review of.................................................................. 1C-4

Conforming the charge with .................................................................. 1A-1

Consolidation of cases .......................................................................... 1B-1

Dismissal of allegation improperly plead ............................................... 1L-6

Drafting of ............................................................................................. 1A-1

Formal documents ................................................................................ 1N-2

GC's burden of proof ............................................................................. 2P-1

Informal settlement agreement and withdrawal .......................... 2G-1, 3A-1

Injunctions ............................................................................................. 1E-3

Injunctions and dismissal of .................................................................. 3E-1

Injunctive relief and issuance of ............................................................ 1E-2

Issuance of ........................................................................................... 1A-2

Motion to Amend ................................................................................... 1C-5

Motions involving ...................................................................... See Motions

Notice of hearing time, date and place ................................................. 1A-1

Oral argument and restatement of allegation of ................................ 2GG-2

PSIWOC ..................................................................................... 2G-2, 3A-1

Regulatory requirements ...................................................................... 1A-2

Responding to motions to dismiss ......................................................... 1L-8

Service of .............................................................................................. 1A-3

Settlement, withdrawal of ...................................................................... 1H-1

Violations not plead in ........................................................................... 2X-3
Index 

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−4

COMPLIANCE WITH AUTHORITY DECISIONS ................................................ 3G-1

Regional Office responsibilities ............................................................. 3G-1

COMPLIANCE, MOTION FOR

Sanctions for non-compliance of subpoena ...........................................2J-2

Subpoenas ............................................................................................2H-7

CONFIRMING LETTERS .................................................................................... 2T-5

CONSOLIDATION ORDER ................................................................................. 1B-1

After complaint has issued .................................................................... 1B-2

Criteria for consolidation ....................................................................... 1B-1

Issuance of complaint ........................................................................... 1B-1

Processing ............................................................................................ 1B-1

COURT REPORTER ........................................................................................... 1A-6

Copies of documents at hearing ........................................................... 2R-1

Depositions, arranging for ..................................................................... 1O-2

Marking of exhibits ................................................................................ 2R-1

Rejected exhibits ................................................................................... 2R-3

Review of transcript ............................................................................... 2D-4

Settlement, canceling of .............................................................. 1H-3, 1H-4

CROSS-EXAMINATION ........................................................................ 2BB-1-2BB-8

Adverse or hostile witness ......................... See Adverse or Hostile Witness

ALJ’s inquiry into the facts .................................................................... 2D-1

Bias ..................................................................................................... 2BB-7

Checklist for ........................................................................................2BB-7

Competency ........................................................................................ 2BB-7

Destructive testimony .......................................................................... 2BB-3

Elements of ......................................................................................... 2BB-3

Eliciting favorable testimony................................................................ 2BB-3

Eliciting information on direct to blunt ................................................... 2S-1

Jencks’ rule ........................................................................................... 2T-1

Memory ................................................................................... 2BB-7, 2BB-8

Methods to test credibility .................................................................... 2BB-7

Perception ...........................................................................................2BB-7

Pre-trial preparation of witness for ..............................................1J-1, 1J-11

Purpose of cross-examination ............................................................. 2BB-3

Redirect, discussion of matters raised on ................................. 2W-1, 2W-2

Rules of ............................................................................................... 2BB-4

Techniques of...................................................................................... 2BB-6

When to...............................................................................................2BB-1
Index 

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−5

Writing or object used for ...................................................................... 2S-6

DECORUM 

ALJ involvement in hearing . See ALJ Involvement and Decorum at Hearing

Trial attorney’s .............................................. See Trial Attorney’s Decorum

DEPOSITIONS .......................................................................................... 1O-1-1O-3

In lieu of hearing testimony .................................................................. 1J-17

Leaving record open for additional evidence ...................................... 2EE-1

Motion for summary judgment, support for ........................................... 1F-2

Motion for the taking of ........................................................................ 1L-10

Post-hearing .................................................................. 1J-19, 1O-2, 2EE-1

Practice and procedure ......................................................................... 1O-2

Pre-hearing depositions ....................................................................... 1J-18

Pre-trial preparation of witness ............................................................ 1J-17

Prior inconsistent statement ................................................................. 1O-2

When to use ........................................................................................ 1O-1

DIFFICULT REPRESENTATIVES ............................................................. 2Y-1, 2Y-2

Difficult charging party representative .................................................. 2Y-2

Minor attacks on Trial Attorney by Respondent's representative .......... 2Y-1

Serious attacks on Trial Attorney by Respondent's representative....... 2Y-1

Settlement Judge involvement with ...................................................... 1H-9

DIRECT EXAMINATION ............................................................................ 2S-1-2S-9

611(c) witness ....................................................................................... 2U-2

Example of past recollection recorded .................................................. 2S-7

Example of refreshing recollection ........................................................ 2S-6

Leading questions ................................................................................. 2S-3

Narrative questions ............................................................................... 2S-3

Organization of ..................................................................................... 2S-1

Past recollection recorded .................................................................... 2S-7

Refreshing recollection ................................................................ 1J-3, 2S-4

Structuring the questions ...................................................................... 2S-1

Techniques when witness cannot recall information............................. 2S-4

What to avoid ........................................................................................ 2S-4

Witness preparation for ......................................................................... 1J-5

DOCUMENTS 2R-1-2R-8

611(c) witness, identification ................................................................. 2U-2

Adverse inference, failure to produce .................................................... 2L-3

Authentication of ................................................................................... 2R-2

Best evidence rule ................................................................................ 2R-3
Index 

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−6

Case file analysis, assessment of need to subpoena ........................... 1C-1

Control of............................................................................................... 2R-2

Extraneous markings on ........................................................................1J-4

In camera review of ................................................................................2J-3

Leave record open for ......................................................................... 2EE-2

List of exhibits, revision of ..................................................................... 1N-2

Motion for pre-hearing discovery ........................................................... 1L-9

Motion for summary judgment, support for .................................. 1F-3, 1F-5

Motion to introduce ................................................................................ 2H-6

Objections to ....................................................................................... 2Z-12

Pre-hearing advice to witness ................................................................1J-2

Pre-hearing conference......................................................................... 1Q-1

Pre-hearing disclosure of ...................................................................... 1N-1

Pre-hearing order .................................................................................. 1P-5

Pre-hearing review of .............................................................................1J-4

Preparation of........................................................................................1N-1

Purloined ............................................................................................... 2O-5

Rejected exhibits ................................................................................... 2R-3

Relationship with parties, disclosure of .................................................. 1I-2

Respondent's evidence ........................................................................1J-20

Review of evidence, case file analysis .................................................. 1C-8

Sanctions and subpoenas for production of ...........................................2J-2

Steps involved in introducing ................................................................ 2R-1

Subpoenas duces tecum .................................................................... 1K-23

Voir dire ................................................................................................. 2R-4

DUE PROCESS ........................................................................................ 2X-1, 2X-2

ENFORCEMENT OF SUBPOENA .............................................................. 2J-1-2J-7

Action by Solicitor...................................................................................2J-1

Jurisdiction .............................................................................................2J-1

Motion to Continue .................................................................................2J-2

Sanctions for non-compliance ................................................................2J-2

EQUAL ACCESS TO JUSTICE ACT ............................................ See Attorney Fees

ETHICS ....................................................................................................... 2F-1-2F-5

Employee responsibility and conduct .................................................... 2F-4

Ex parte communication ............................... See Ex parte Communication

Role of public prosecutor ...................................................................... 2F-1

EVIDENCE .......................................................................................................... 2K-1

Burden of proof ..................................................................................... 2P-1
Index 

Office of the General Counsel 

Litigation Manual 

−7

Case file analysis, review of.................................................................. 1C-8

Criteria for admission of ........................................................................ 2Z-1

Improperly obtained .............................................................................. 2O-1

Leaving record open for additional ..................................................... 2EE-1

Offer of proof, exclusion of .................................................................... 2N-1

Official notice ........................................................................................ 2M-2

Pre-trial preparation of witnesses, review of .......................................... 1J-4

Preponderance of ................................................................................. 2P-2

Rebuttal ............................................................................................. 2DD-1

Remedy, support for ............................................................................. 1D-3

Reopening of record for ...................................................................... 2FF-1

Respondent’s documents .................................................................... 1J-20

EX PARTE COMMUNICATION .......................................................................... 2F-3

Communications that are not ................................................................ 2F-4

Refrain from engaging in ..................................................................... 2F-3

Reporting prohibited conduct ................................................................ 2F-3

Requests for subpoenas may be made ex parte .................................. 1K-3

What is it ............................................................................................... 2F-3

EXCEPTIONS ............................................................................................. 3F-1-3F-7

ALJ analysis .......................................................................................... 3C-1

Appeals of adverse ruling ..................................................................... 2Z-2

Bases for filing ...................................................................................... 3F-1

Bench decisions and filing of ............................................................. 2GG-3

Briefs and .............................................................................................. 3B-2

Content of ............................................................................................. 3F-3

Credibility determinations as basis for .................................................. 3F-2

Criteria for filing cross-exceptions and opposition ................................ 3F-5

Ethical responsibility to file .................................................................... 2F-3

Format of .............................................................................................. 3F-2

Pre-hearing disclosure documents, review of ....................................... 1N-4

Remedy ................................................................................................ 1D-6

Sufficient particularity standard ............................................................. 3F-4

Waiver, Exception not argued ............................................................... 3F-3

EXCEPTIONS TO THE HEARSAY RULE

Excited utterance .................................................................................. 2Z-7

Learned treatises .................................................................................. 2Z-8

Medical diagnosis or treatment ............................................................. 2Z-7

Other exceptions ................................................................................... 2Z-9

Present sense impression .................................................................... 2Z-7

Public records and reports .................................................................... 2Z-8

Records of regularly-scheduled activity ................................................ 2Z-8
Index 

Office of the General Counsel 

Litigation Manual 

−8

Reputation--character ........................................................................... 2Z-8

Then existing mental, emotional, or physical condition ......................... 2Z-7

EXPERT TESTIMONY ............................................................................... 2V-1-2V-7

Example - Qualifying a witness ............................................................. 2V-3

Procedure for arranging for ................................................................... 2V-1

RA approval for ..................................................................................... 2V-1

Suggested outline for structuring .......................................................... 2V-2

Voir dire, use with ..................................................................................2R-4

When to call .......................................................................................... 2V-1

EXTENSIONS OF TIME ...................................................................................... 3F-7

FORMAL DISCUSSION ................................................................ 1C-7, 1J-13, 1J-14

Example of closing argument ............................................................. 2GG-4

Interview of employee in preparation for hearing ......................1J-12, 1J-13

FORMAL PAPERS .......................................................................... See Documents 

HEARING ROOMS.............................................................................................. 2C-3

HEARINGS 

Change in hearing location ................................................................... 1A-6

Media coverage of ................................................................................. 2C-4

Who sets ............................................................................................... 1A-1

Setting the time, date, and place .......................................................... 1A-5

HEARSAY RULE ............................................. See Exceptions to the Hearsay Rule

HOSTILE WITNESSES .......................................... See Adverse or Hostile Witness

IMPEACHMENT .................................................................................... 2CC-1-2CC-8

Deciding whether to attack on cross .................................................. 2CC-8

Direct questions to commit witness .................................................... 2CC-2

Leading questions to commit witness ................................................ 2CC-3

Principles of ....................................................................................... 2CC-1

Prior inconsistent statements ............................................................. 2CC-1

Questions to impeach witness ........................................................... 2CC-6

Use of witness statements for ................................................................1J-3

INFORMAL SETTLEMENTS

Bilateral ................................................................................................. 1H-3

Unilateral ............................................................................................... 1H-5
Index 

Office of the General Counsel 

Litigation Manual 

−9

INJUNCTIONS .................................................................................. 1E-1-1E-5, 3E-1

After ALJ decision ................................................................................. 3E-1

Approval of GC’s request for................................................................. 1E-4

Criteria for seeking ................................................................................ 1E-2

Denial of GC’s request for .................................................................... 1E-4

District Court relief ................................................................................ 1E-4

Issuance of complaint ........................................................................... 1E-3

Not appealable ...................................................................................... 1E-3

Procedure to seek temporary relief ....................................................... 1E-3

Processing request for .......................................................................... 1E-3

Settlement attempts .............................................................................. 1E-3

Statutory authority ................................................................................. 1E-1

INTERLOCUTORY APPEALS ...................................................................... 2I-1-2I-3

ALJ's ruling on ........................................................................................ 2I-2

Criteria for requesting permission to file ................................................. 2I-1

Deciding whether to file .......................................................................... 2I-1

Denial of motion to intervene ............................................................... 1L-11

Practice and procedure ........................................................................... 2I-1

JENCKS’ ACT ............................................................................................ 2T-1-2T-6

Administrative proceedings ................................................................... 2T-3

Background ........................................................................................... 2T-1

Confirming letters .................................................................................. 2T-5

Respondent’s rights and responsibilities .............................................. 2T-4

Reverse Jencks’ ................................................................................... 2T-6

LEAVING THE RECORD OPEN FOR ADDITIONAL EVIDENCE ........ 2EE-1, 2EE-2

Criteria for requesting ......................................................................... 2EE-1

Preserve right to cross-examine ......................................................... 2EE-2

MONETARY RELIEF .......................................................................................... 1D-5

Doctrine of sovereign immunity ............................................................ 1D-5

MOOTNESS ............................................................................................... 1L-9, 3F-6

MOTION TO AMEND COMPLAINT ......................................................... 1C-11, 1L-7

MOTIONS ................................................................................................ 1L-1-1L-13, Extensions of time

For a bill of particulars and/or a more definite statement ....................... 1L-4

For an interlocutory appeal .................................................................. 1L-11
Index 

Office of the General Counsel 

Litigation Manual 

−10

For pre-hearing discovery ..................................................................... 1L-9

For summary judgment .................... See Motions for Summary Judgment

Number of copies .................................................................................. 1L-2

Pre-hearing ........................................................................................... 1L-4

Procedural motions, requirements for ................................................... 1L-3

Processing requirements ...................................................................... 1L-1

Response to .......................................................................................... 1L-2

Ruled upon at hearing ........................................................................... 2A-1

Sequestration ........................................................................................2H-1

To amend a complaint........................................................................... 1L-5

To compel more definitive pre-hearing disclosure ................................ 1N-4

To dismiss, and response to ................................................................. 1L-8

To intervene ........................................................................................ 1L-11

To postpone a hearing .......................................................................... 1L-3

To sever .............................................................................................. 1L-10

To strike ......................................................... 2N-1, 2U-2, 2Z-3, 3D-1, 3D-2

When and with whom to file .................................................................. 1L-1

Withdraw and remand ......................................................................... 1L-10

MOTIONS FOR SUMMARY JUDGMENT ................................................... 1F-1-1F-5

ALJ rulings on ....................................................................................... 1F-5

Contents of brief in support of ............................................................... 1F-4

Contents of the motion .......................................................................... 1F-4

Criteria for filing ..................................................................................... 1F-2

Cross-motion for.................................................................................... 1F-5

Non-compliance with regulatory pre-hearing & hearing requirement .....2J-3

Response to .......................................................................................... 1F-4

Service .................................................................................................. 1F-4

What is filed .......................................................................................... 1F-3

When is it filed ...................................................................................... 1F-3

NONTRADITIONAL REMEDIES ......................................................................... 1D-7

NOTICE OF HEARING .............................................................................. 1A-1, 1A-2

Calendar call ......................................................................................... 1A-2

Changes in hearing location, date and time .......................................... 1A-2

Court reporter ............................................................... See Court Reporter

When are hearings set .......................................................................... 1A-1

Where are hearings set......................................................................... 1A-1

OBJECTIONS ........................................................................................... 2Z-1-2Z-15

ALJ’s inquiry into the facts .......................................................... 2D-1, 2D-2

Answers .............................................................................................. 2Z-12
Index 

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Litigation Manual 

−11

Argumentative ..................................................................................... 2Z-11

Assumes facts not in evidence ........................................................... 2Z-11

Best evidence rule ................................................................................ 2Z-4

Beyond the scope of direct, cross or re-direct .................................... 2Z-10

Calls for conclusion ............................................................................... 2Z-4

Calls for opinion .................................................................................... 2Z-5

Calls for speculation ........................................................................... 2Z-11

Charging party's evidence .................................................................... 2E-2

Closing arguments .............................................................................. 2Z-14

Compound/double question ................................................................ 2Z-11

Confusing, ambiguous, vague ............................................................ 2Z-11

Continuing objections ........................................................................... 2Z-3

Criteria for admission of evidence ........................................................ 2Z-1

Cumulative .......................................................................................... 2Z-11

Declarant unavailable ........................................................................... 2Z-9

Exceptions to hearsay........................................................................... 2Z-7

Exhibits ............................................................................................... 2Z-12

Federal Rules of Evidence, reference to .............................................. 2K-1

Forms of ................................................................................................ 2Z-3

General ................................................................................................. 2Z-3

Hearsay ................................................................................................ 2Z-6

How to object ........................................................................................ 2Z-2

Irrelevant ............................................................................................... 2Z-3

Leading question ................................................................................ 2Z-10

Misstates facts in evidence ................................................................. 2Z-11

Narrative answer ................................................................................... 2Z-5

Opening statements ............................................................................ 2Z-13

Pre-trial preparation of witness, explanation of ...................................... 1J-2

Privileged communication ..................................................................... 2Z-4

Question calls for testimony barred by court order ............................. 2Z-11

Repetitive/asked and answered .......................................................... 2Z-10

Responding to Respondent’s objections ............................................ 2Z-15

Specific objections to questions............................................................ 2Z-3

Voir dire ................................................................................................ 2R-4

When to make objections to testimony ............................................... 2Z-12

When to object ...................................................................................... 2Z-2

OFFER OF PROOF ................................................................................... 2N-1-2N-3

Continuance .......................................................................................... 2B-2

Fed R. Evid. 103 ................................................................................... 2N-1

How to preserve issue for appeal ......................................................... 2N-2

When to make ...................................................................................... 2N-2
Index 

Office of the General Counsel 

Litigation Manual 

−12

OFFICIAL NOTICE ................................................................................... 2M-1-2M-3

Definition of .......................................................................................... 2M-1

When requested................................................................................... 2M-1

Who is request made to ....................................................................... 2M-1

Why request is made ........................................................................... 2M-2

OFFICIAL TIME .................................................................................................1J-20

Charging party in CO case .................................................................... 1K-1

Friendly supervisor ...............................................................................1J-16

GC's witnesses.....................................................................................1J-20

OPENING STATEMENTS ......................................................................... 2Q-1-2Q-3

ALJ's comments during ......................................................................... 2D-3

Checklist for an effective statement ...................................................... 2Q-1

Objections to ....................................................................................... 2Z-13

Purpose of ............................................................................................. 2Q-2

OPM, AS INTERVENOR ................................................................................... 1L-11

ORAL ARGUMENT IN LIEU OF FILING BRIEF .............................................. 2GG-2

Criteria for .......................................................................................... 2GG-2

Outline of oral argument..................................................................... 2GG-2

ORDER OF HEARING ........................................................................................ 2A-1

Stages of hearing .................................................................................. 2A-1

PLEADING MANUAL .......................................................................................... 1A-2

POST-COMPLAINT/PRE-HEARING SETTLEMENTS ........................... 1H-1-1H-11

See also ................................................Informal Settlements, Settlements

POST-HEARING MOTIONS ...................................................................... 3D-1-3D-4

Correct the transcript............................................................................. 3D-2

Expedited treatment .............................................................................. 3D-2

Oral argument to the Authority .............................................................. 3D-2

Processing requirements ...................................................................... 3D-4

Reconsideration .................................................................................... 3D-3

Reopen the record ................................................................................ 3D-2

Strike ........................................................................................... 3D-1, 3F-4

POSTING ............................................................................................................ 1D-4

POSTPONEMENT OR CONTINUANCE OF HEARING ............................ 2B-1-2B-3
Index 

Office of the General Counsel 

Litigation Manual 

−13

ALJ's discretionary ruling on motions for .............................................. 2B-2

Interlocutory appeals .............................................................................. 2I-1

Opposition to a request for ................................................................... 2B-3

Practice ................................................................................................. 2B-1

Pre-hearing ............................................................................................ 1L-3

Process of requesting ........................................................................... 2B-2

Reason for requesting .......................................................................... 2B-1

To whom ............................................................................................... 2B-1

PRE-HEARING CONFERENCE ................................................................ 1Q-1-1Q-4

Calendar call ......................................................................................... 1A-2

Checklist of matters discussed at ......................................................... 1Q-2

Mandatory participation......................................................................... 1Q-2

Motion for sequestration ....................................................................... 2H-1

Order and notice of date and time for pre-hearing conference call ...... 1A-3

Pre-hearing disclosure .......................................................................... 1P-1

Pre-hearing motions .............................................................................. 1L-1

Pre-hearing order .................................................................................. 1P-5

Sanction for failure to participate in ....................................................... 2J-4

Subpoenas served before ..................................................................... 1K-5

When conducted ................................................................................... 1Q-1

PRE-HEARING DISCLOSURE ........................................................ 1D-2, 1N-2-1N-5

ALJ’s role .............................................................................................. 1N-4

Charging party's documents ................................................................... 1I-2

Documents exchanged ......................................................................... 1N-2

Due process .......................................................................................... 1C-6

Motion to compel for more definitive ..................................................... 1N-4

Pre-hearing conference .............................................................. 1Q-1, 1Q-2

Pre-hearing discovery ............................................................................ 1L-9

Pre-hearing order .................................................................................. 1P-1

Rebuttal witnesses ................................................................................ 1N-3

Remedy ...................................................................................... 1D-2, 1D-7

Exceptions, review of ............................................................................ 1N-4

Sanctions ............................................................................. 2J-3, 2J-4, 2J-6

Violations not plead in complaint ................................................. 2X-3, 2X-2

What is not exchanged ......................................................................... 1N-3

PRE-HEARING ORDER ............................................................................ 1P-1, 1P-2

Matters which a pre-hearing order may confirm or change .................. 1P-1

Pre-hearing conference ............................................................... 1Q-2, 2J-4

Pre-hearing disclosure .......................................................................... 1P-1

Preparation by Trial Attorney ................................................................ 1P-1
Index 

Office of the General Counsel 

Litigation Manual 

−14

PREPARATION OF WITNESSES............................................................. 1J-1-1J-22 Cross-examination preparatio

Direct examination preparation ..............................................................1J-2

Explain witness' role in hearing ..............................................................1J-2

Familiarize the witness with process, establish rapport .........................1J-1

Former supervisor ................................................................................1J-16

Friendly supervisor ...............................................................................1J-16

GC witnesses talking to Respondent’s counsel ...................................1J-12

Goals of ..................................................................................................1J-1

Hostile supervisor.................................................................................1J-17

Information obtained from the Respondent ..........................................1J-19

Official time for GC witnesses ..............................................................1J-20

Relationship with charging party ......................................... 1I-2, 2Y-5, 2Y-2

Reluctant and/or hostile witness ..........................................................1J-12

Retired supervisors ..............................................................................1J-16

Review documentary evidence ..............................................................1J-4

Review testimony ...................................................................................1J-3

Supervisors and management officials ................................................1J-16

Travel and per diem expenses .............................................................1J-21

Witness fees ........................................................................................1J-21

PRIOR INCONSISTENT STATEMENT AND IMPEACHMENT ....................... 2CC-1

Assessing expectations of cross-examination .................................... 2BB-2

Rehabilitation after impeachment by .................................................... 2W-2

Use of deposition .................................................................................. 1O-2

PSIWOC .......................................................................................... See Settlements

PURLOINED DOCUMENTS ..................................................................... 2O-1-2O-3

Criteria for use....................................................................................... 2O-1

REBUTTAL ..................................................................................................... 2DD-1

611(c) witness, unnecessary use of ...................................................... 2U-2

Denial of request to recall witness to present testimony ........... 2K-1, 2DD-1

Factors considered ............................................................................ 2DD-1

Impeachment ......................................................................... 2CC-1, 2CC-8

Motion to sequester ..................................................................... 2H-3, 2H-4

Official notice ....................................................................................... 2M-2

Pre-hearing disclosure .......................................................................... 1N-3

Request for continuance to present ...................................................... 2B-2

Role of Charging Party representative .................................................. 2E-1

REDIRECT EXAMINATION .................................................................... 2W-1, 2W-2
Index 

Office of the General Counsel 

Litigation Manual 

−15

Expert witness ....................................................................................... 2V-7

When to conduct .................................................................................. 2W-1

REMEDY .................................................................................................... 1D-1-1D-9

Backpay ...................................................................................... 1D-2, 1D-7

Closing argument ............................................................................... 2GG-2

Complaint, notice of remedy in ............................................................. 1D-4

Compliance with ................................................................................... 3F-4

Equitable relief ...................................................................................... 1D-9

Exceptions ................................................................................... 1D-6, 3F-6

Formal discussion case ..................................................................... 2GG-7

Hearing, presentation of evidence ........................................................ 1D-5

Injunctions ............................................................................................. 1E-2

Investigation, evidence obtained during ............................................... 1D-3

Monetary relief ...................................................................................... 1D-8

Motion for expedited treatment ............................................................. 3D-2

Motions for summary judgment............................................................. 1F-5

Nontraditional ........................................................................................ 1D-7

OGC policy............................................................................................ 1D-3

Opening statement ............................................................................... 2Q-1

Post-hearing briefs ................................................................................ 1D-6

Pre-hearing disclosure requirement ...................................................... 1D-4

Prosecutorial obligation ........................................................................ 2F-1

Quality standards in briefs ........................................ 3B-1-3B-3, 3C-2, 3D-2

RD merit determination, recommendation ............................................ 1D-4

Release of improperly withheld information .......................................... 1D-7

Request for postponement of hearing, affect upon ................................ 1L-3

Retroactive bargaining order ................................................................ 1D-6

Settlement agreement .................................................................. 1H-1, 1I-1

Sovereign immunity .............................................................................. 1D-8

Status quo ante ..................................................................................... 1D-7

Statutory authority for............................................................................ 1D-1

Traditional ............................................................................................. 1D-6

Transmittal memoranda ........................................................................ 1D-4

Trial preparation, consideration of remedy ........................................... 1D-4

REOPENING OF THE GC'S CASE .................................................................. 2FF-1

After record closed .............................................................................. 2FF-1

Post-hearing, Motion to ......................................................................... 3D-1

When to .............................................................................................. 2FF-2

SANCTIONS FOR IMPROPER DISCLOSURE ................................................. 1J-19
Index 

Office of the General Counsel 

Litigation Manual 

−16

SANCTIONS FOR NON-COMPLIANCE ................................... 2J-2-2J-4, 2J-6, 2J-7

ALJ's discretionary ruling on ..................................................................2J-2

Inadmissible evidence ......................................................................... 2Z-14

Jencks' Act ............................................................................................ 2T-2

Pre-hearing conference......................................................................... 1Q-3

When to move for ...................................................................................2J-2

SEQUESTRATION MOTION ..................................................................... 2H-1-2H-6

Content of.............................................................................................. 2H-2

Discrimination .......................................................................................2H-3

General criteria for filing ........................................................................ 2H-3

Pre-hearing conference......................................................................... 1Q-3

Pre-trial preparation of witness ..............................................................1J-1

Purpose of ............................................................................................. 2H-2

Respondent’s counsel ........................................................................... 2H-4

Rule 615 ................................................................................................ 2H-2

Summary and expert witnesses ............................................................ 2H-5

Technical advisor .................................................................................. 2H-4

Timing of ............................................................................................... 2H-2

Voir dire ....................................................................................... 2R-5, 2R-7

Witnesses subject to order ................................................................... 2H-3

SETTLEMENTS

ALJ Settlement Judge Program ............................................................ 1H-9

Analysis of case file .......................................................... 1C-1, 1C-8, 1C-9

Attorney fee award ................................................................................ 3H-4

Calendar call ......................................................................................... 1A-2

Efforts and potential for ......................................................................... 1C-9

Form of .................................................................................................. 1H-2

Formal settlements ........................................................... 1H-6, 2G-2, 3A-2

Hearing.................................................................................................. 2G-7

Informal settlements .............................................................................. 1H-3

Injunctive relief ............................................................................ 1E-4, 3E-1

Motion to sever .................................................................................... 1L-10

Party settlements involving withdrawal of charge (PSIWOC) ..... 1H-1, 2G-2

Policy at hearing.................................................................................... 2G-1

Post-complaint/pre-hearing ................................................................... 1G-8

Post-hearing ................................................................................ 3A-1, 3A-2

Pre-hearing conference......................................................................... 1Q-2

Procedure for .................................................................... 1H-2, 2G-2, 3A-1

Trial attorney’s role in ............................................................................ 1H-8

SOVEREIGN IMMUNITY .................................................................................... 1D-5
Index 

Office of the General Counsel 

Litigation Manual 

−17

SPECIFIC OBJECTIONS TO QUESTIONS ...................................... See Objections

STIPULATIONS ......................................................................................... 1G-1-1G-4

Analysis of case file .................................................................... 1C-1, 1C-9

Briefs ............................................................................................ 3B-2, 3B-3

Calendar call ......................................................................................... 1A-2

Criteria for stipulations to the ALJ ......................................................... 1G-3

Criteria for transfer of case to the Authority .......................................... 1G-1

Formal settlement ................................................................................. 1H-7

Motion to receive................................................................................... 2H-7

Pre-hearing conference ........................................................................ 1Q-3

Processing requirements ...................................................................... 1G-3

Processing tasks ................................................................................... 1G-1

Summary judgment ............................................................................... 1F-3

SUBPOENAS ............................................................................................. 1K-1-1K-7

Circumstances when requested .................................................. 1K-1, 1K-2

Content of ............................................................................................. 1K-4

Documents which may not be subpoenaed .......................................... 1K-2

Enforcement of ...................................................................................... 2J-1

Ensure payment of travel and per diem ................................................ 1K-2

Failure to comply with ........................................................................... 1K-7

Identify documents sought, examples .................................................. 1K-5

Identifying to whom directed ................................................................. 1K-4

Mileage expenses and witness fees ..................................................... 1K-2

Nonexistence of critical documents ...................................................... 1K-2

Not a formal document ......................................................................... 1N-2

Person who can authenticate documents ............................................. 1K-2

Petition to Revoke and ruling on ........................................................... 1K-5

Pre-hearing conference ........................................................................ 1Q-2

Pre-hearing order .................................................................................. 1Q-3

Processing requirements ...................................................................... 1K-2

Requests to OALJ ................................................................................. 1K-2

Trial notebook ....................................................................................... 1N-2

SUMMARY JUDGMENT ................................... See Motions for Summary Judgment

TRANSMITTAL MEMORANDUM ....................................................................... 1A-4

TRAVEL AND PER DIEM EXPENSES .............................................................. 1J-21

Mileage expenses ................................................................................. 1K-2

Regional authorization of ..................................................................... 1J-22
Index 

Office of the General Counsel 

Litigation Manual 

−18

Witness fees .............................................................................. 1J-22, 1K-2

TRIAL ATTORNEY'S DECORUM .............................................................. 2C-1-2C-4

Approaching the bench ......................................................................... 2C-2

Courtesy ................................................................................................ 2C-1

Difficult situations .................................................................................. 2C-2

Dress ..................................................................................................... 2C-3

Hearing rooms....................................................................................... 2C-3

Media coverage ..................................................................................... 2C-4

TRIAL MOTIONS ....................................................................................... 2H-1-2H-7

Amend complaint .................................................................................. 2H-6

Compliance with subpoenas ................................................................. 2H-7

Introduce formal documents ................................................................. 2H-6

Introduce joint exhibits .......................................................................... 2H-6

Receive stipulation(s) ............................................................................ 2H-7

Sequestration ........................................................................................2H-1

TRIAL NOTEBOOK ........................................................................................... 1M-1

VIOLATIONS NOT PLEAD IN COMPLAINT ............................................. 2X-1-2X-3

Due Process.......................................................................................... 2X-1

Violations fully litigated at hearing ......................................................... 2X-2

VOIR DIRE ........................................................................................ See Documents

Best evidence rule ............................................................. See Documents

WITNESS

Expert Witness ......................................................... See Expert Testimony

Fees ....................................................................................................1J-21

Preparation of witness for hearing ...............See Preparation of Witnesses

Using notes ......................................................................................... 2AA-1
Office of the General Counsel 

Litigation Manual Ε−1

LIST OF EXAMPLES OR MODELS OF 

 DOCUMENTS AND ORAL PRESENTATIONS

Closing Argument ...............................................................................2GG-4

Direct Examination ................................................................................ 2S-2

Expert Witness Testimony .................................................................... 2V-3

Impeachment ....................................................................................... 2CC-2

Introduction of Document ..................................................................... 2R-3

Motion for Sanction ............................................................................... 2J-5

Motion for Sequestration ...................................................................... 2H-6

Motion to Amend Complaint ............................................................... 1C-11

Objections .............................................................................................. 2Z-3

Offer of Proof ......................................................................................... 2N-2

Opening Statements ............................................................................. 2Q-2

Past Recollection Recorded ................................................................. 2S-8

Pre-trial Preparation of Witness, Direct Examination Questions ...... 1J-6

Refreshed Recollection ......................................................................... 2S-6

Voir Dire .................................................................................................. 2R-5
Office of the General Counsel 

Litigation Manual 

 RESERVED 

Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−0

TABLE OF AUTHORITIES

FEDERAL LABOR RELATIONS AUTHORITY DECISIONS

7th Infantry Division (Light), Fort Ord, California, 47 FLRA No. 82, 

47 FLRA 864 (1993) ................................................................................. 1J-21, 1K-2

24th Combat Support Group, Howard Air Force Base, Republic of Panama, 

55 FLRA No. 45, 55 FLRA 273, 283 (1999) ............................ 2K-1, 3F-2, 3F-4, 3F-6

Air Force Flight Test Center, Edwards Air Force Base, California, 

55 FLRA No. 21, 55 FLRA 116 (1999) 2K-1, 2L-3, 3F-3

Air Force Materiel Command, Warner Robins Air Logistics Center, Robins 

Air Force Base, Georgia, 54 FLRA No. 134, 54 FLRA 1529 (1998) ................... 2X-1

American Federation of Government Employees, Local 2241 and 

U.S. Department of Veterans Affairs, Medical Center, Denver, Colorado, 

49 FLRA No. 127, 49 FLRA 1403 (1998) ............................................................ 3H-3

American Federation of Government Employees, Local 3475, 45 FLRA No. 47, 

45 FLRA 537 (1992) ............................................................................................ 2L-3

American Federation of Government Employees, Local 3615, AFL-CIO, 

53 FLRA No. 123, 53 FLRA 1374 (1998) ............................................................ 3F-2

American Federation of Government Employees, Local 987, 

55 FLRA No. 71, 55 FLRA 432 (1999) ............................................................... 3H-4

American Federation of Government Employees, Local 2501, Memphis, 

Tennessee, 51 FLRA No. 139, 51 FLRA 1657 (1996) ............................... 1C-6, 1L-6

Association of Civilian Technicians, Inc. Rhode Island Chapter and U.S. 

Department of Defense, Rhode Island National Guard, Providence, 

Rhode Island, 55 FLRA No. 70, 55 FLRA 420 (1999) ........................................ 2M-3

Bureau of Engraving and Printing, 28 FLRA No. 105, 28 FLRA 796 (1987) ....... 2L-2
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−1

Bureau of Engraving and Printing, Western Currency Facility, Fort Worth, 

Texas, 51 FLRA No. 85, 51 FLRA 1014 (1996) .................................................. 3F-2

Bureau of Indian Affairs, Isleta Elementary School, Pueblo of Isleta, 

New Mexico and Indian Educators Federation, 54 FLRA No. 128, 

54 FLRA 1428 (1998) ......................................................................................... 1J-18

Bureau of Indian Affairs, Phoenix Area Office, Phoenix, Arizona,32 FLRA No. 130, 

32 FLRA 903 (1988) ............................................................................................. 1L-9

Bureau of Indian Affairs, Uintah Ouray Area Office, Ft. Duchesne, Utah,52 FLRA 

No. 60, 52 FLRA 629 (1996) ............................................................................... 1G-2

Bureau of Prisons, Office of Internal Affairs and FCI El Reno, 52 FLRA No. 43,52 

FLRA 421 (1996) ................................................................................................. 2X-2

Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Phoenix, 

Arizona and Federal Correctional Institution, El Reno, Oklahoma, 

52 FLRA No. 43, 52 FLRA 421 (1996) ................................................................. 1L-6

Defense Mapping Agency, Hydrographic/Topographic Center, Louisville 

Office, Louisville, Kentucky, 51 FLRA No. 148, 51 FLRA 1751 (1996) ................ 1L-9

Department of Commerce, National Oceanic and Atmospheric Administration, 

National Weather Service, Silver Spring, Maryland, 30 FLRA No. 19, 

30 FLRA 127 (1987) .................................................................................... 2J-3, 2L-3

Department of Defense, Army and Air Force Exchange Service, Fort Eustis, 

Virginia, 20 FLRA No. 32, 20 FLRA 248 (1985) ................................................... 2L-3

Department of Defense, U.S. Army Reserve Personnel Command, St. Louis, 

Missouri, 55 FLRA No. 211, 55 FLRA 1309 (2000)............................................. 2X-2

Department of Health and Human Services, Social Security Administration, 

Social Security Administration Field Operations, New York Region, 

32 FLRA No. 6, 32 FLRA 56 (1988) ................................................................... 1L-11

Department of Justice, United States Immigration and Naturalization Service,United 

States Border Patrol, El Paso, Texas, 40 FLRA No. 64, 
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−2

40 FLRA 792 (1991) .............................................................................................2J-2

Department of the Air Force, Air Force Materiel Command, 

Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 

55 FLRA No. 194, 55 FLRA 120, 1204-05 (2000) ............................................... 3F-2

Department of the Air Force, F.E. Warren Air Force Base, Cheyenne, 

Wyoming, Local 2354, 31 FLRA No. 35, 31 FLRA 541 (1988) ...............1J-13, 1J-15

Department of the Air Force, Grissom Air Force Base, Indiana, 51 FLRA No. 2, 

51 FLRA 7 (1995) ....................................................................................... 3F-5, 3F-7

Department of the Air Force, Sacramento Air Logistics Center, McClellan 

Air Force Base, California, 29 FLRA No. 53, 29 FLRA 594 (1987) ....................1J-13

Department of the Air Force, Sacramento Air Logistics Center, McClellan 

Air Force Base, California, 26 FLRA No. 83, 26 FLRA 674 (1987) rev’d on 

other grounds sub nom. Department of the Air Force, Sacramento Air Logistics 

Center, McClellan Air Force Base, California v. FLRA, 877 F.2d 1036 (D.C. Cir. 

1989) ..................................................................................................................1J-20

Department of the Air Force, Warner Robins Air Logistics Center, Warner 

Robins Air Force Base, Georgia, 52 FLRA No. 58, 52 FLRA 602 (1996) ........... 2P-2

Department of the Army, U.S. Army Soldier Support Center, Fort Benjamin 

Harrison, Office of the Director of Finance and Accounting, Indianapolis, 

Indiana, 48 FLRA No. 2, 48 FLRA 6 (1993) ........................................................ 1D-9

Department of the Navy, Navy Resale System, Field Support Office, 

Commissary Store Group, Norfolk, Virginia, 16 FLRA No. 37, 

16 FLRA 257 (1984) ............................................................................................ 2B-2

Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms andNational 

Treasury Employees Union, 10 FLRA No. 3, 10 FLRA 10 (1982) ......................1J-20

Department of the Treasury, Internal Revenue Service and Department of 

the Treasury, Internal Revenue Service, Jacksonville District, 

15 FLRA No. 108, 15 FLRA 506 (1984) .............................................................1J-20
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−3

Department of the Treasury, Internal Revenue Service, Memphis Service 

Center, 16 FLRA No. 100, 16 FLRA 687 (1984) ................................................. 2T-4

Department of Transportation and Federal Aviation Administration, 

32 FLRA No. 23, 32 FLRA 158 (1988) .................................................................. 2I-2

Department of Transportation, Federal Aviation Administration, Fort Worth 

Texas, 55 FLRA No. 157, 55 FLRA 951, 960-61 (1999) .................. 2B-2, 2X-3, 3F-5

Department of Veterans Affairs Medical Center, Phoenix, Arizona, 

52 FLRA No. 18, 52 FLRA 182 (1996) ............................................................... 1J-13

Department of Veterans Affairs, Finance Center, Austin, Texas, 

48 FLRA No. 21, 48 FLRA 247 (1993) ....................................................... 2F-3, 2J-3

Department of Veterans Affairs, Medical Center, Denver Colorado andVeterans 

Canteen Service, Denver, Colorado, 52 FLRA No. 2, 

52 FLRA 16 (1996) ..................................................................................... 2Z-1, 3D-2

Department of Veterans Affairs, Medical Center, Muskogee, Oklahoma, 53 FLRA 

No. 103, 53 FLRA 1228 (1998) .................................................................. 2X-2, 3F-5

Department of Veterans Affairs, Veterans Affairs Medical Center, Nashville, 

Tennessee, 50 FLRA No. 40, 50 FLRA 220 (1995) ............................................ 1F-2

Department of Veterans Affairs, Veterans Affairs Medical Center,Washington, D.C., 

51 FLRA No. 74, 51 FLRA 896 (1996) ................................................................ 2X-1

F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17,52 FLRA 149 

(1996) ............................................................... 1C-7, 1D-6, 1D-7, 2H-4, 2GG-6, 3F-6

Federal Aviation Administration, 55 FLRA No. 203, 

55 FLRA 1271 (2000) ................................................................................ 1D-9, 3F-4

Federal Aviation Administration, 55 FLRA No. 44, 55 FLRA 254 (1999) ... 1L-9, 3F-8

Federal Aviation Administration, Northwest Mountain Region, Renton, 

Washington, 51 FLRA No. 81, 51 FLRA 986 (1996) ................................ 1J-21, 1K-2
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−4

Federal Aviation Administration, Washington, D.C., 52 FLRA No. 51,52 FLRA 548 

(1996) .................................................................................................................. 1G-2

Federal Bureau of Prisons, Washington, D.C., 55 FLRA No. 202, 

55 FLRA 1250, 1258-59 (1996) ........................................................................... 1D-1

Federal Emergency Management Agency, 52 FLRA No. 47, 

52 FLRA 486 (1996) ............................................................................................ 2P-2

General Services Administration, 50 FLRA No. 61, 

50 FLRA 401 (1995) .....................................................................1J-13, 1J-15, 1J-16

Immigration and Naturalization Service, Los Angeles District, Los Angeles, 

California, 52 FLRA No. 11, 52 FLRA 103 (1996) ............................................... 1D-9

Indian Health Service, Winslow Service Unit, Winslow, Arizona, 

54 FLRA No. 17, 54 FLRA 126 (1998) .................................................... 2K-1, 2DD-1

Internal Revenue Service and Brookhaven Service Center, 9 FLRA No. 132,9 

FLRA 930 (1982) ................................................................................................1J-14

Internal Revenue Service and Internal Revenue Service, Brooklyn District, 23 FLRA 

No. 9, 23 FLRA 63 (1986) ..................................................................................1J-20

Internal Revenue Service, Austin District Office, Austin, Texas,51 FLRA No. 95, 51 

FLRA 1166 (1996) ...................................................................................... 1K-7, 3F-6

Internal Revenue Service, Boston District Office, Boston, Massachusetts 

andInternal Revenue Service, Andover Service Center, Andover, Massachusetts,5 

FLRA No. 96, 5 FLRA 700 (1981) ............................................................. 1I-2, 1J-19

Internal Revenue Service, Philadelphia Service Center, 54 FLRA No. 72, 

54 FLRA 674 (1998) .......................................................................... 1L-3, 2L-2, 3F-8

Letterkenney Army Depot, 35 FLRA No. 18, 35 FLRA 113 (1990) ..................... 2P-1

Long Beach Naval Shipyard, Long Beach, California, 44 FLRA No. 83, 
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−5

44 FLRA 1021 (1992) ................................................................................. 2Z-4, 3F-6

National Association of Government Employees, Local R4-6 and the U.S. 

Department of the Army, Fort Eustis, Virginia, 54 FLRA No. 137, 

54 FLRA 1594 (1998) .......................................................................................... 3H-3

National Association of Government Employees, Local R5-188 and U.S. 

Department of the Air Force, Seymour Johnson Air Force Base, 

North Carolina, 54 FLRA No. 122, 54 FLRA 1401 (1998) .................................... 3H-3

National Labor Relations Board, 46 FLRA No. 14, 46 FLRA 107 (1992) ............ 2B-2

National Naval Medical Center, 54 FLRA No. 93, 54 FLRA 1078 (1998) ........... 3F-5

National Park Service, 54 FLRA No. 91, 54 FLRA 940 (1998) ........................... 3F-7

National Park Service, National Capital Region, United States Park Police, 

48 FLRA No. 127, 48 FLRA 1151 (1993) ............................................................ 2M-3

National Park Service, National Capital Region, United States Park Service,

38 FLRA No. 86, 38 FLRA 1027 (1990), remanded on other grounds sub 

nom. NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) ........................................... 2J-3

National Treasury Employees Union, 53 FLRA No. 138, 

53 FLRA 1541 (1998) .......................................................................................... 2D-3

NLRB, 38 FLRA No. 48, 38 FLRA 506 (1990), remanded on other grounds 

sub nom. NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) ..................................... 2J-3

OLAM Southwest Air Defense Sector (TAC), Point Arena Air Force Station, 

Point Arena, California, 51 FLRA No. 69, 51 FLRA 797 (1996) .......................... 2X-2

Pension Benefit Guaranty Corporation, 52 FLRA No. 132, 

52 FLRA 1390 (1997) ........................................................................................ 2FF-1

Professional Air Traffic Controllers Organization, MEBA, AFL-CIO, 
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−6

7 FLRA No. 10, 7 FLRA 34 (1981) ......................................................................2B-2

Puerto Rico Air National Guard, 156th Airlift Wing (AMC), Carolina, 

Puerto Rico, 56 FLRA No. 21, 56 FLRA 174 (2000), petition for review 

filed sub nom. American Federation of Government Employees, Local 3936, 

AFL-CIO v. FLRA, 00-1417 (1st Cir. filed Mar. 24, 2000) .....................................2J-4

Social Security Administration, 45 FLRA No. 27, 45 FLRA 303 (1992) .............. 2M-3

Social Security Administration, 47 FLRA No. 32, 47 FLRA 410 (1993) .............. 2M-2

Social Security Administration, 52 FLRA No. 114, 52 FLRA 1159 (1997) ........... 3D-3

Social Security Administration, Baltimore Maryland, 53 FLRA No. 87, 53 FLRA 

1053 (1997) ......................................................................................................... 3F-5

Social Security Administration, Baltimore, Maryland, 55 FLRA No. 43, 

55 FLRA 246 (1999) .................................................................................. 1D-9, 1G-2

Social Security Administration, Baltimore, Maryland, 22 FLRA No. 41, 

22 FLRA 420 (1986) ........................................................................................... 2M-3

Social Security Administration, San Francisco Bay Area, 51 FLRA No. 7,51 FLRA 

58 (1995) ............................................................................................................ 2M-2

U.S. Army Armament Research Development and Engineering Center, 

Picatinny Arsenal, New Jersey, 52 FLRA No. 50, 52 FLRA 527 (1996) .............. 2P-2

U.S. Department of Commerce, National Oceanic and Atmospheric 

Administration, National Oceans Service, Coast Guard and Geodetic Survey, 

Aeronautical Charting Division, Washington, D.C., 54 FLRA No. 92, 

54 FLRA 987 (1998) ............................................................... 1D-8, 2L-2, 3D-2, 3F-2

U.S. Department of Energy, Western Area Power Administration, Golden, 

Colorado, 56 FLRA No. 2, 56 FLRA 9 (2000) ..................................................... 3F-4

U.S. Department of Health and Human Services, Social Security 

Administration, 50 FLRA No. 50, 50 FLRA 296 (1995) ............................. 3D-2, 3F-2
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−7

U.S. Department of Housing and Urban Development, Rocky Mountain Area, 

Denver, Colorado, 55 FLRA No. 99, 55 FLRA 571, 573 (1999), petition for 

review filed sub nom. U.S. Department of Energy, Western Area Power 

Administration, Golden, Colorado v. FLRA, No. 00-1162 (D.C. Cir. filed Apr. 14, 

2000) ................................................................................................................... 3F-4

U.S. Department of Justice and Immigration and Naturalization Service, 

46 FLRA No. 44, 46 FLRA 492 (1992) .................................................................. 2I-2

U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prisons 

Camp, Montgomery, Pennsylvania, 40 FLRA No. 42, 40 FLRA 449 (1991) ....... 1C-3

U.S. Department of Justice, Bureau of Prisons, Federal Correctional 

Institution (Ray Brook, New York), 29 FLRA No. 52, 29 FLRA 584 (1987) ...... 2GG-6

U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, 

Connecticut, 55 FLRA No. 37, 55 FLRA 201 (1999) ........................................... 3F-4

U.S. Department of Justice, Immigration and Naturalization Service, 

51 FLRA No. 75, 51 FLRA 914 (1996) ................................................................. 2L-2

U.S. Department of Justice, Immigration and Naturalization Service, 

New York, Office of Asylum, Rosedale, New York, 55 FLRA No. 170, 

55 FLRA 1032 (1999) .......................................................................................... 3F-7

U.S. Department of Justice, Immigration and Naturalization Service, 

Washington, D.C., 55 FLRA No. 20, 55 FLRA 93 (1999).......................... 2D-3, 2K-1

U.S. Department of Justice, Immigration and Naturalization Service, Chicago 

District Office, Chicago, Illinois, 52 FLRA No. 66, 52 FLRA 686 (1996) ............. 1G-2

U.S. Department of Justice, Office of Justice Programs, 50 FLRA No. 67, 

50 FLRA 472 (1995) ............................................................................................ 1C-3

U.S. Department of Labor, Office of the Assistant Secretary for Administration 

and Management, Chicago, Illinois, 32 FLRA No. 69, 32 FLRA 465 (1988) .... 2GG-6
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−8

U.S. Department of Labor, Washington, D.C., 51 FLRA No. 41, 

51 FLRA 462 (1995) ......................................................................... 1C-6, 2X-1, 3F-7

U.S. Department of the Air Force, 375th Combat Support Group,Scott Air Force 

Base, Illinois, 50 FLRA No. 16, 50 FLRA 84 (1995) ............................................ 3D-3

U.S. Department of the Air Force, 375th Mission Support Squadron,Scott Air Force 

Base, Illinois, 51 FLRA No. 54, 51 FLRA 599 (1995) .......................................... 3F-5

U.S. Department of the Air Force, 56th Support Group, MacDill 

Air Force Base, Florida, 51 FLRA No. 93, 51 FLRA 1144 (1996) ....................... 1C-6

U.S. Department of the Air Force, Air Force Materiel Command, 

Wright-Patterson Air Force Base, Ohio, 55 FLRA No. 159, 

55 FLRA 968 (1999) ......................................................................... 1A-7, 1N-5, 2P-1

U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York,38 

FLRA No. 125, 38 FLRA 1552 (1991) ................................................................1J-15

U.S. Department of the Air Force, Ogden Air Logistics Center, 

Hill Air Force Base, Utah, 36 FLRA No. 78, 36 FLRA 748 (1990) ...........1J-13, 1J-15

U.S. Department of the Navy, U.S. Naval Ordnance Station, Louisville, 

Kentucky, 33 FLRA No. 1, 33 FLRA 3 (1988)), rev’d on other grounds sub 

nom. Department of the Navy, U.S. Naval Ordnance Station, Louisville, 

Kentucky v. FLRA, No. 88-1861 (D.C. Cir. Aug. 9, 1990) (unpublished) ............. 1F-1

U.S. Department of the Treasury, Customs Service, Washington, D.C., 

38 FLRA No. 74, 38 FLRA 875 (1990) ............................................................... 2M-1

U.S. Department of the Treasury, Customs Service, Washington, D.C., 

38 FLRA No. 103, 38 FLRA 1300 (1991) ............................................................ 2Z-4

U.S. Department of Transportation, Federal Aviation Administration, 

Northwest Mountain Region, Renton, Washington, 55 FLRA No. 46, 

55 FLRA 293 (1999) .................................................................................. 1D-9, 3F-4

U.S. Department of Treasury, Customs Service, Washington, D.C. and 

Customs Service, Region IV, Miami, Florida, 37 FLRA No. 44, 

37 FLRA 603 (1990) ............................................................................................ 1F-2
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−9

U.S. Department of Treasury, Internal Revenue Service, Washington, D.C., 

40 FLRA No. 31, 40 FLRA 303 (1991) .............................................................. 2FF-2

U.S. Department of Veterans Affairs, 55 FLRA No. 195, 

55 FLRA 1213 (2000) .......................................................................................... 1D-9

U.S. Department of Veterans Affairs, Medical Center, Jamaica Plain, 

Massachusetts, 51 FLRA No. 73, 51 FLRA 871 (1996) ............................. 2D-3, 3F-3

U.S. Department of Veterans Affairs, Veterans Administration Medical Center, 

San Francisco, California, 40 FLRA No. 30, 40 FLRA 290 (1991) ..................... 1L-12

U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Dallas, 

Texas, 51 FLRA No. 77, 51 FLRA 945 (1996) .......................................... 2M-2, 3F-6

U.S. Equal Employment Opportunity Commission, 51 FLRA No. 26, 

51 FLRA 248, 252-53 (1995), rev’d on other grounds sub nom. 

Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky v. 

FLRA, No. 88-1861 (D.C. Cir. Aug. 9, 1990) ....................................................... 1F-1

U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA No. 127, 

55 FLRA 704 (1999) ......................................................................... 1D-7, 2L-3, 3F-4

U.S. Small Business Administration, Washington, D.C., 54 FLRA No. 83, 

54 FLRA 837 (1998) ................................................... 1B-2, 2M-3, 2T-4, 2FF-1, 3D-2

United States Customs Service, South Central Region, New Orleans District, 

New Orleans, Louisiana, 53 FLRA No. 67, 53 FLRA 789 (1997) ............... 2K-1, 3F-6

United States Department of Agriculture, Farm Service Agency, Kansas City, 

Missouri, 55 FLRA No. 10, 55 FLRA 22 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . 3D-3

United States Department of the Treasury, Internal Revenue Service and 

United States Department of the Treasury, Internal Revenue Service, Austin 

Service Center, Austin, Texas, 25 FLRA No. 4, 25 FLRA 71 (1987) .................. 2H-5
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−10

United States Department of Veterans Affairs, Washington, D.C., Veterans 

Administration Medical Center, Amarillo, Texas, 42 FLRA No. 27, 42 FLRA 333 

(1991), rev’d on other grounds sub nom. United States Department of Veterans 

Affairs Medical Center, Amarillo, Texas v. FLRA, 1 F.3d 19 (D.C. Cir. 1993) ..... 1C-4

United States Immigration and Naturalization Service, United States 

Border Patrol, El Paso, Texas, 47 FLRA No. 11, 47 FLRA 170 (1993) ..............1J-14

United States Marine Corps, Marine Corps Logistics Base, Barstow, 

California, 5 FLRA No. 97, 5 FLRA 725 (1981) ......................................... 2H-1, 2H-3

USDA Forest Service Pacific Northwest Region, Portland, Oregon, 

48 FLRA No. 89, 48 FLRA 857 (1993) ................................................................ 3D-2

Veterans Administration and Veterans Administration Medical Center, Lyons, 

New Jersey, 24 FLRA No. 31, 24 FLRA 255 (1986) ........................................... 2H-4

Veterans Administration Medical Center, Long Beach, California, 

41 FLRA No. 106, 41 FLRA 1370 (1991) ................................................1J-13, 1J-15

Veterans Administration, VA Medical Center, San Francisco, California, 

33 FLRA No. 27, 33 FLRA 242 (1988) ................................................................. 2I-2

Veterans Administration, Washington, D.C. and Veterans Administration 

Medical Center, Leavenworth, Kansas, 32 FLRA No. 126, 

32 FLRA 855 (1988) ............................................................................................ 3D-1
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−11

FEDERAL LABOR RELATIONS AUTHORITY - ALJ DECISIONS

American Federation of Government Employees, Local 400, Case No. 

DE-CO-80520, ALJD Rpt. No. 143 (1999) ....................................................... 2HH-2 

Defense Logistics Agency, Defense Distribution Region East, Defense 

Depot Susquehanna, New Cumberland, Pennsylvania, OALJD 98-15 

(Jan. 29, 1998) .................................................................................................... 3B-4

National Labor Relations Board, Region 24, Case No. 2-CO-50, ALJD Rpt. 

No. 5 (1981) ....................................................................................................... 2O-2

Puerto Rico Air National Guard, 156th Airlift Wing (AMC), Carolina, 

Puerto Rico, OALJD 99-24 (Apr. 28, 1999) ...................................................... 2HH-2

U.S. Customs Service, St. Louis, Missouri, DE-CA-70590, ALJD Rpt. No. 134 

(1998) ................................................................................................................. 1F-2

U.S. Department of Energy, Washington, D.C., OALJD 98-39 (1998) ............... 1F-2

U.S. Department of Justice, Immigration and Naturalization Service, 

Border Patrol, Case No. 6-CA-90255, ALJD Rpt. No. 94 (1991) ........................ 2O-2

U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, 

New Hampshire, ALJD Rpt. No. 96 (1991) ......................................................... 2Z-6

U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, 

Coatesville, Pennsylvania, OALJD 00-13 (Jan. 11, 2000) ............................... 2HH-2

Veterans Administration Medical Center, John Cochran Division, St. Louis, 

Missouri, ALJD Rpt. No. 14 (1982) ..................................................................... 2Z-6

UNITED STATES SUPREME COURT DECISIONS

Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) ............................ 2J-2

FLRA v. Aberdeen Proving Ground, 485 U.S. 409 (1988) ................................... 2I-3
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−12

Jencks v. United States, 353 U.S. 657 (1957) .......................................... 2T-1, 2T-4

NLRB v. Sears, Roebuck, & Co., 421 U.S. 132 (1975) ............................. 1A-5, 1D-4
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−13

UNITED STATES COURT OF APPEALS DECISIONS

Communist Party of the United States v. Subversive Activities Control Board, 

254 F.2d 314 (D.C. Cir. 1958) ............................................................................ 2T-4

Dayco Corp. v. Federal Trade Commission, 362 F.2d 180 (6th Cir. 1966) ........ 2M-1

Department of the Air Force, Sacramento Air Logistics Center, McClellan 

Air Force Base, California v. FLRA, 877 F.2d 1036 (D.C. Cir. 1989) ................. 1J-20

Department of the Army, U.S. Commissary, Ft. Benjamin Harrison, 

Indianapolis, Indiana v. FLRA, 56 F.3d 273 (D.C. Cir. 1995) .............................. 1D-9

Department of the Navy, U.S. Naval Ordnance Station, Louisville, Kentucky 

v. FLRA, No. 88-1861 (D.C. Cir. Aug. 9, 1990) (unpublished) ........................... 1F-1

FLRA v. Department of Veterans Affairs Medical Center, Long Beach, 

California, 16 F.3d 1526 (9th Cir. 1994) ............................................................1J-13

Harvey Aluminum v. NLRB, 335 F.2d 749 (9th Cir. 1964) .................................. 2T-3

International Brotherhood of Electrical Workers, Local 648 v. NLRB, 

440 F.2d 1184 (6th Cir. 1971) .......................................................................... 2FF-2

Macleod v. Immigration and Naturalization Service, 

802 F.2d 89 (3d Cir. 1986) .................................................................................. 2M-1

Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439 (6th Cir. 1993) ............... 2J-6

NLRB v. Adhesive Prods. Corp., 258 F.2d 403 (2d Cir. 1958) ........................... 2T-4

NLRB v. Champion Labs. Inc., 99 F.3d 223 (7th Cir.1996) ................................. 2T-3

NLRB v. Clement Bros., 407 F.2d 1027 (5th Cir. 1969) ..................................... 2T-3
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−14

NLRB v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) .......................................... 2J-3, 2L-1

NLRB v. Williams, 396 F.2d 247 (7th Cir. 1968) .................................................2J-2

NLRB v. Konig, 79 F.3d 354 (3d Cir. 1996) .........................................................2J-6

NLRB v. Silver Spur Casino, 623 F.2d 571, 580 (9th Cir. 1980) ........................ 1K-6

NLRB v. South Bay Daily Breeze, 415 F.2d 360 (9th Cir.1969) ......................... 2O-3

North American Rockwell Corp. v. NLRB, 389 F.2d 866 (10th Cir. 1968) .......... 2T-3

NTEU v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) ................................................... 1D-1

Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998) ................................................ 2FF-1

Road Sprinkler Fitters Local Union No. 669 v. NLRB, 

778 F.2d 8 (D.C. Cir. 1985) ................................................................................ 1C-6

Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir. 1981) ............... 2X-1

Stephens Produce Co. v. NLRB, 515 F.2d 1373, 1376 (8th Cir. 1975) .............. 1K-6

U.S. v. Borrelli, 621 F.2d 1092 (10th Cir. 1980) ................................................. 2Z-5

United States v. Fried, 1989 WL 88495 (6th Cir. 1989) ..................................... 2T-6

United States Department of Veterans Affairs Medical Center, Amarillo, 

Texas v. FLRA, 1 F.3d 19 (D.C. Cir. 1993).......................................................... 1C-4

United States v. Bertoli, 854 F. Supp. 975 (D.N.J. 1994), aff’d in part, 

vacated in part, 40 F.3d 1384 (3d Cir. 1994) ....................................................... 2H-5

Vreeken v. Davis, 718 F.2d 343 (10th Cir. 1983) ............................................... 1F-3
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−15
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−16

UNITED STATES DISTRICT COURT DECISIONS

Department of the Navy, U.S. Naval Ordnance Station, Louisville, 

Kentucky v. FLRA, No. 88-1861 (D.C. Cir. Aug. 9, 1990) ................................... 1F-1

Holland v. Bank of America, 673 F. Supp. 1511 (S.D. Cal. 1987) ...................... 1F-3

United States v. Badalamenti, 626 F. Supp. 655 (S.D.N.Y. 1985) ..................... 2T-6

United States v. Bertoli, 854 F. Supp. 975 (D.N.J. 1994) ................................... 2H-5

United States v. Harloff, 826 F. Supp. 675 (W.D.N.Y. 1993) .............................. 2T-6

NATIONAL LABOR RELATIONS BOARD DECISIONS

Air Line Pilots Association, 97 NLRB 929 (1951) ............................................... 2O-3

Army Aviation Center, 216 NLRB 435 (1975) ..................................................... 2T-5

Caterpillar Inc., 313 NLRB 626 (1994) ............................................................... 2T-3

Cory Coffee Services, Div. of Cory Food Services, Inc., 242 NLRB 601 (1979).2O-3

District No. 1, Pacific Coast District Engineers Beneficial Association, 

274 NLRB 1481 (1985) ....................................................................................... 2D-4

Frank Invaldi, 305 NLRB 493 (1991) ..................................................................1K-6

G.W. Galloway Co., 281 NLRB 262 (1986) ........................................................ 1K-6
Table of Authorities 

Office of the General Counsel 

Litigation Manual ΤΟΑ−17

General Engineering, 123 NLRB 586 (1959) ..................................................... 2O-3

Hoosier Cardinal Corp., 67 NLRB 49 (1946) ...................................................... 2O-3

I-O Services, 218 NLRB 566 (1975) ................................................................... 2T-5

Medite of New Mexico, Inc., 314 NLRB 1145 (1994) ......................................... 2H-4

Miami Rivet of Puerto Rico, Inc., Miami Rivet Co. and Raytech Corp., 

318 NLRB 769 (1995) .......................................................................................... 2J-6

Stride Rite Corp., 228 NLRB 224 (1977) ............................................................. 2T-3

Unga Painting Corporation, 237 NLRB 1306 (1978) .......................................... 2H-4

MISCELLANEOUS DECISION

Allen v. United States Postal Service, 2 MSPR 420 (1980) ................................ 3H-3