Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

TABLE OF CONTENTS

Page numbers reflect the chapter and the page within the chapter (Chapter)-(Page)

Introduction

1 ............................................................................................................... Introduction 1-1

1.1 ............................................................................. Purpose of the hearing 1-1

1.2 Hearings in representation cases are considered 

................................................................................. investigatory and not adversary 1-1

2 ............................................................................... Hearing Officer's responsibilities 2-1

2.1 .............................................................. Accomplishment of primary duty 2-1

2.2 ............................................................................................. Other duties 2-2

2.3 .............................................................................. Ethical considerations 2-2

2.3.1 ................................................................................................. General 2-2

2.3.2 ................................................................................................. Caution 2-3

2.3.3 ...................................................................... Ex parte communications 2-3

Prehearing Matters

3 ............................................................................................. Prehearing preparation 3-1

4 ................................................................................. Preparing materials for hearing 4-1

4.1 .......................................................................................... Formal papers 4-1

4.2 ................................................................................................... Case file 4-2

4.3 .......................................................... FLRA Form 50, Appearance sheet 4-2

4.4 ...................................... FLRA Form 56, Exhibits introduced in evidence 4-2

4.5 .............................................................................................. Publications 4-2

4.6 .................................................................................... Other blank forms 4-2

4.7 ............................................................................................... Subpoenas 4-2

4.8 ............................................................................. Hearing Officer's script 4-3

5 ............................................................................................. Witnesses‟ appearance 5-1

6 ........................................... Official time for witnesses and reimbursement for travel 6-1

6.1 ....................................................................................................... Policy 6-1

6.2 ........................................................................ Official time for witnesses 6-1

6.3 ................................................................................ Travel and Per Diem 6-1

6.4 ........................................................................Employee representatives 6-1

7 ............................................................................... Prehearing exchange of exhibits 7-1
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

8 .............................................................................................. Prehearing conference 8-1

8.1 .......................................................................................... General policy 8-1

8.2 ............................. Areas to cover (not necessarily in the following order) 8-2

8.3Circumstances arising at the prehearing conference which generally require clearan

9 .................................................................................. Stipulations in lieu of hearings 9-1

10 ........................................................................................Pre-opening preparations 10-1

10.1 ................................................................................. To do on your own 10-1

10.2 ..................................... Immediately prior to the opening of the hearing 10-1

10.2.1 ......................................Complete appearance sheet, FLRA Form 50 10-1

10.2.2 If updated since the prehearing conference, re-examine the formal papers 10-2

10.2.3 .............................................................................. Order of witnesses 10-2

10.2.4 ......Check again into possibilities for stipulations, election agreement 

 .....or resolution of other issues ......................................................... 10-3

11 Things for the Hearing Officer to keep in mind as the 

 hearing opens ............................................................... .......... 11-1

11.1 ............................................................ Recesses for breaks, lunch, etc. 11-1

11.2 ................................................................................................. Smoking 11-1

11.3 ......................................................... Decorum of parties and witnesses 11-1

11.4 ............................................... Things to discuss with the court reporter 11-1

11.5 .......................................... Hearing Officer‟s demeanor towards parties 11-1

11.6 ..................................... Hearing Officer‟s demeanor towards witnesses 11-2

11.7 ........................................................................... Off the record remarks 11-2

11.8 ........... ................When the parties elect to allow the Hearing Officer 

 .............................. to act as the primary examiner .......................... 11-2

11.9 ..................... When the Hearing Officer is uncertain on how to proceed 11-2

Evidentiary Matters

12 ........................................................................ Evidentiary and procedural matters 12-1

13 ................................................................... Considerations in developing evidence 13-1

13.1 ................................................................................. Best evidence rule 13-1

13.1.1 ........................................................................................... Testimony 13-1

13.1.2 ................................................................... Introduction of documents 13-1

13.2 .................................................. Ruling on the admissibility of evidence 13-1

13.2.1 .......................................................................................... Foundation 13-1

13.2.2 ........................................................................................... Relevancy 13-2

13.2.2.1 ...................................................... Evidentiary considerations - unit 13-2

13.2.2.2 ................................ Evidentiary considerations-employee eligibility 13-2

13.2.3 ............................................................................................Materiality 13-2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

13.2.4 ..................................................................... Hearsay and admissions 13-2

13.2.5 ............................................................................... Leading questions 13-3

13.2.6 .................................. Oral evidence that contradicts written evidence 13-3

13.2.7 ........................................................................... Cumulative evidence 13-3

13.2.8 ................................................................................ Opinion evidence 13-3

13.2.9 ..................................................................................... Judicial notice 13-3

13.2.10 .................................................................................... Official notice 13-4

13.2.11 ......................................................................... Administrative notice 13-4

13.3 .......................................................................... Theories of res judicata 13-4

13.3.1 ................................................................ Doctrine of claim preclusion 13-4

13.3.2 ................................................................ Doctrine of issue preclusion 13-4

14 .................................................................................... Scope of cross examination 14-1

15 .................................................................................................................. Exhibits: 15-1

15.1 ................................................................................... General overview 15-1

15.2 ........................................................... Marking exhibits for identification 15-1

15.3 ...................................................................... Marking Authority exhibits 15-2

15.4 ....................................................................... Authenticating the exhibit 15-2

15.5 .............................................................. Offering the exhibit in evidence 15-2

15.6 ..................................................................................................Voir dire 15-2

15.7 ................................................................. Ruling by the Hearing Officer 15-3

15.8 ................................................................................ Rejected exhibit file 15-3

15.9 ......................................................................................... Bulky exhibits 15-3

15.10 ........................................................................................ Joint exhibits 15-4

15.11 Documentary evidence that the parties refuse to provide to all parties 15-4

15.12 ................................................................................ Summary exhibits 15-5

15.13 ............................................................................... Custody of exhibits 15-5

15.14 ........................................ Request to withdraw original copy of exhibit 15-5

15.15 .......................................Receipt of exhibit after conclusion of hearing 15-5

Motions

16 ................................................................................................................... Motions 16-1

16.1 ............................................................................... Purpose of a motion 16-1

16.2 ................................................................................... Service of motion 16-1

16.2.1 ............................................................................................ Basic rule 16-1

16.2.2 ........................................................................................ Specific rule 16-1

17 ............................................................................... Processing prehearing motions 17-1

17.1 ................................................................................................Generally 17-1
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

17.2 .............................................................. Prehearing motion to postpone 17-1

17.2.1 ............................ Policy on granting prehearing motions to postpone 17-1

17.2.2 ......................................................... Granting the motion to postpone 17-1

17.2.3 ......................................................... Denying the motion to postpone 17-2

17.2.4 ...................................................................... Indefinite postponement 17-2

17.2.5 .................................... Resumption of indefinitely postponed hearing 17-2

17.3Prehearing motions (requests) to intervene, cross-petition, challenges to the validi

17.4Motions to intervene received too late for the region to process prior to the opening 

17.4.1Reviewing motions to intervene received too late for the region to process prior t

17.4.2Considerations when reviewing the showing of interest accompanying requests 

17.4.3 ..... Ruling on motions to intervene prior to the opening of the hearing 17-6

17.4.3.1 ......................................................... Granting a motion to intervene 17-6

17.4.3.2 ................. Referring a motion to intervene to the Regional Director 17-6

17.4.4 ...................................................................... Conditional intervention 17-7

17.4.5 .................... Handling conditional motions to intervene on the record 17-8

17.5 ............................................................... Prehearing motions to dismiss 17-9

17.6 ............................................................. Prehearing motions to withdraw 17-9

17.7 ...................................................................... Other prehearing motions 17-9

17.8 .................................................................................................... Orders 17-9

18 ............................................................................ Motions made during the hearing 18-1

18.1 ................................................................................................Generally 18-1

18.2 ........................................................................ Procedural requirements 18-1

18.3 .......................................... Motions to dismiss made during the hearing 18-2

18.4 ....................................... Motions to intervene made during the hearing 18-2

18.5 ................................................. Motions to participate as amicus curiae 18-3

18.6 ............................................................. Motions to sequester witnesses 18-3

18.7 .................................................................. Motion to amend the petition 18-4

18.7.1 ............................................................................................... General 18-4

18.7.2 ................................................ Considerations on amending petitions 18-4

18.7.3 ............................. Motion to amend the unit made during the hearing 18-5

18.7.4 ................................ Obtaining complete description of amended unit 18-5

18.7.5 ............................ Ruling on a motion to amend the unit that does not 

 change the scope of the unit ............................................................... 18-6

18.7.6Ruling on a motion to amend the unit that changes the scope of the unit 18-6

18.8 ................................................... Motion to strike or expunge testimony 18-7

18.9 ................................... Motion for continuance made during the hearing 18-8

18.9.1 ..................................................................... Grounds for continuance 18-8

18.9.2 ........................................................................... Hearing rescheduled 18-9

19 ................................................................................................ Motions to withdraw 19-1

19.1 ............................................................. Prehearing motions to withdraw 19-1

19.1.1 ........................................................... Petitioner requests to withdraw 19-1
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

19.1.2 .......................................................... Intervenor requests to withdraw 19-1

19.2 ........................................Motions to withdraw made during the hearing 19-2

19.2.1 ........................................................... Petitioner requests to withdraw 19-2

19.2.2 .......................................................... Intervenor requests to withdraw 19-2

19.3 ................................................ Motions to withdraw made post-hearing 19-2

19.4 ...................................................................... Withdrawal with prejudice 19-3

20 .............................................................................................. Post-hearing motions 20-1

21 .................................................................................... Motions to correct transcript 21-1

Procedural Matters

22 ............................................................................................................. Disclaimers 22-1

23 .............................................................................................. Filing a cross-petition 23-1

23.1 ................................................................................ Filing requirements 23-1

23.2 .................... Processing cross-petitions received too late for the region 

 to process prior to the opening of the hearing ..................................... 23-1

23.2.1 ................ Handling cross-petitions received too late for the region to 

 process prior to the opening of the hearing ......................................... 23-1

23.2.2 ...... Ruling on cross-petitions that are received too late for the region 

 to process prior to the opening of the hearing ..................................... 23-2

23.3 .......................................... Cross-petitions filed after the hearing opens 23-3

23.4 .................. If the Regional Director does not permit participation by the 

 cross-petitioner .................................................................... 23-4

23.5 ............................ Cross-petitions filed immediately prior to the opening 

 of the hearing or after the hearing opens that challenge the status 

of a petitioning or intervening labor organization on the basis 

that it is subject to corrupt or anti-democratic influences 

pursuant to 5 U.S.C. 7111(f)(1) ...................................................... 23-4

24 .. Challenges to the validity of the showing of interest and challenges to the status 

 of a labor organization ............................................................................... 24-1

24.1 ............................................................................................ When to file 24-1

24.2 .............................. Challenges to the validity of the showing of interest 24-1

24.3 .................................... Challenges to the status of a labor organization 24-1

25 ........................... Intervening circumstances which can change scope of hearing, 

 status of the parties or the issues ............................................... 25-1

26 ............................................................................................................. Stipulations 26-1

26.1 ......................................................................................... Requirements 26-1
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

26.2 ........................................................................... Preparing a stipulation 26-1

26.3 ........................................................... Receiving stipulation in evidence 26-2

26.4 ........................................................................... Content of stipulations 26-2

26.5 ......................... Stipulations obviating the need to continue the hearing 26-2

26.6 ......................... Special circumstances that may arise during a hearing 26-3

26.6.1 .. Attempt to withdraw from a stipulation already received in evidence 26-3

26.6.2 ...................... Stipulations involving determinative challenged ballots 26-3

27 .............................................................................................................. Subpoenas 27-1

27.1 .................................................................................................. General 27-1

27.2 ....................................................................... Application for subpoena 27-1

27.3 ........................................................................ Preparation of subpoena 27-1

27.4 ....................................................... Issuance and control of subpoenas 27-1

27.5 .............................................. Issuance of subpoena during the hearing 27-2

27.6 .............................................................................. Service of subpoena 27-2

27.7 .......................................................................................... Witness fees 27-2

27.8 ...................................................................Petition to revoke subpoena 27-2

27.9 ...................................................................... Enforcement of subpoena 27-3

27.10 ........................................................................ Delays for enforcement 27-3

28 .................................................................... Evidentiary and procedural objections 28-1

28.1 .................................................................................................. General 28-1

28.2 ...................................................................... Stating basis for objection 28-1

28.3 ............................................................................. Arguing the objection 28-1

28.4 .................................................................................... Stating the ruling 28-1

28.5 ................................................................ Interjection by Hearing Officer 28-1

28.6 ........................................... Objection to questioning by Hearing Officer 28-2

28.7 .............................................................................. Decide all objections 28-2

29 .......................................................................................................... Offer of proof: 29-1

30 .............................................. Appeals from adverse rulings by the Hearing Officer 30-1

31 ..........................Obtaining an election agreement preceding or during the hearing 31-1

31.1 .................................................................................................. General 31-1

31.2 ............................................................ Prehearing election agreements 31-1

31.2.1 .............................................................. Election agreement obtained 31-1

31.2.2 .............................................. Procedure upon approval of agreement 31-2

31.2.3 ........................................................... Withdrawal of notice of hearing 31-2

31.3 .................................... Election agreement obtained during the hearing 31-2

31.4 ...................................... Refusal by parties to sign election agreements 31-3

31.4.1 .......................................................................................... Prehearing 31-3

31.4.2 .............................................................................. During the hearing 31-3
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

Conducting the Hearing

32 ........................................................................................... Conducting the hearing 32-1

32.1 ........................................................................................... An overview 32-1

32.2 ................................................................................ Appearance sheets 32-1

32.3 .................................................................... Calling the hearing to order 32-1

32.4 ........................................................................................ Formal papers 32-1

32.5 .................................................... Ascertaining correct names of parties 32-2

32.6 ................................................................ Motions to amend the petition 32-2

32.7 ............................................................................................ Intervention 32-2

32.8 ............. Other prehearing motions or motions presented by the parties 

 upon opening the hearing ....................................................... 32-2

32.9 ................................... Outlining the issues presented by the petition(s) 32-2

32.10 ................................................................................. Timeliness issues 32-2

32.11 ................................................................................. Alternative unit(s) 32-2

32.12 .......................................................................... Receiving stipulations 32-3

32.13 ..................................... Outlining the issues to address at the hearing 32-3

32.14 .......................................................Summarizing the parties' positions 32-3

32.15 .............................................................................................. Evidence 32-3

32.16 ..................................................... Examination by the Hearing Officer 32-5

32.17 ......................................................... Recommendations on the record 32-6

32.18 ..................................................................... Before closing the record 32-7

32.19 ...................................................................... Change of party position 32-7

32.20 ................................................................................. Closing argument 32-8

32.21 .............................................................................. Closing the hearing 32-8

33 ................................................................................... Special admissibility matters 33-1

33.1 ................................ Attempt to litigate adequacy of showing of interest 33-1

33.2 ..................................... Attempt to litigate validity of showing of interest 33-1

33.3 ................... Attempt to litigate challenge to status of labor organization 33-3

33.4 ....................... Attempt to litigate noncompliance with 5 U.S.C. 7111(e) 33-5

33.5 ........................... Attempt to litigate noncompliance with 5 U.S.C. 7120 33-5

33.6 ................................................. Attempt to litigate unfair labor practices 33-6

33.7 .............................................. Attempt to litigate supervisory assistance 33-6

33.8 ............................................ Attempt to litigate petitioner‟s unit eligibility 33-6

33.9 ...................................... Evidence with respect to the appropriateness 

 of potential appropriate units other than those which may be identified 

in the petition .................................................................................. 33-6

34 .......................................................................................... Hearing Officer's Report 34-1

34.1..................................................................................................Purpose 34-1

34.2 ............................................................................................ Submission 34-1
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

34.3 ......................................... s Report 34-1

34.4 ................................................................................. Contents of Report 34-1

Sample Script

35 ....................................................................................................................... Script 35-1

35.1 .................................................... Appearances and opening statement 35-1

35.2 ..................................................... Receiving formal papers in evidence 35-2

35.3 .................................................... Ascertaining correct names of parties 35-3

35.4 ...................................................... Other motions to amend the petition 35-4

35.5 ............................................................... Intervention and cross-petition 35-4

35.6 .................. Other prehearing motions presented by the parties upon 

 opening the hearing ............................................................................ 35-5

35.7 ........................................Outlining the issues presented by the petition 35-6

35.7.1 ................................................................................... Appropriate unit 35-6

35.7.2 .............................................................................................. Eligibility 35-6

35.7.3 ...................... Matters relating to representation (e.g., reorganization, 

 accretion, successorship, Montrose) .................................................. 35-8

35.7.4 .............................................................................. Unit consolidations 35-8

35.7.5 ........................................................ Determinative challenged ballots 35-1

35.7.6 ................................................................................ Timeliness issues 35-1

35.8 ................................................................................... Alternative unit(s) 35-1

35.9 ............................................................................ Receiving stipulations 35-1

35.10 ............................................ Outlining issues to explore at the hearing 35-1

35.11 .......................................................Summarizing the parties' positions 35-1

35.12 ..................................................................... Presentation of evidence 35-1

35.13 ......................................................... Recommendations on the record 35-1

35.14 ..................................................................... Before closing the record 35-1

35.15 ...................................................................... Change of party position 35-1

35.16 ................................................................................ Additional matters 35-1

35.17 ................................................................................... Closing remarks 35-1

Hearing on Objections

36 .............................................................................. Hearings on election objections 36-1

36.1 .................................................................................................. General 36-1

36.2 .......................... When hearings on election objections are appropriate 36-1

36.3 .............................................................................. Nature and objective 36-1

36.4 ........................................................... Participating Authority personnel 36-1

36.5 ....................................................................................... Hearing Officer 36-1

36.6 ........................................... Functions and duties of the Hearing Officer 36-2

36.7 ........................... Counsel for the Regional Office, functions and duties 36-2

36.8 ........................................Credibility issues in election objections cases 36-3
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

36.8.1 ................. When the Regional Director determines prior to a hearing 

that a credibility determination is dispositive of an objection ......................... 36-3

Evidentiary Issues

37 .............................................................................. Appropriate unit determinations 37-1

A. ................................................................................................... Standard 37-1

B. ............................................................................... Community of Interest 37-1

C. ........................................ Effective Dealings and Efficiency of Operations 37-2

D. .......... Impact of the Concept of Fragmentation on Unit Determinations 37-4

E. ................................................................................. Relevant Information 37-4

38 ........................................................................................................... Scope of unit 38-1

39Effect of changes in the character and scope of a unit due to a reorganization or realignment 

A.Purpose and Standards for Resolving Issues Arising from Reorganizations. 39-1

B. .......................................................................................... Successorship. 39-6

C. ................................................................................................... Accretion 39-1

D. ................................. Competing Claims of Successorship and Accretion. 39-1

E. .................................................................................... Consolidated Units 39-1

40Issues related to the majority status of the currently recognized or certified labor organization 

41 .............................................................................................................. (Reserved) 41-2

42 ........................................................................................................ Dues allotment 42-1

43 ........ Changes in the name of the certified or recognized exclusive representative 43-1

A. .................................................................. Technical or nominal changes 43-1

B. ................................................................................................... Montrose 43-1

C. ...................................... Impact of Trusteeships on Reaffiliation Petitions 43-4

 

44 .................................................................................................................... Schism 44-1

45 ............................................................................................................... Severance 45-1

46 ................................................................................. Status of a labor organization 46-1

A. ................................... Compliance with section 7103(a)(4) of the Statute 46-1

B. ....................... Claims made pursuant to section 7111(f)(1) of the Statute 46-2

47 .............................................................................................................. (Reserved) 47-1

48 ............................................................................... Timeliness of election petitions 48-1
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

49 .................................................................................................... Unit consolidation 49-1

50 ..................................................................................... Units including supervisors 50-1

Employee Categories

51 ........................................................................................... General considerations 51-1

52 ........................................................... Employee within the meaning of the Statute 52-1

53 ....................................................................... Internal audit / investigation function 53-1

54 .................................................................... Administering a labor relations statute 54-1

55 ............................................................................................ Confidential employee 55-1

56 .................................................................. Employees engaged in personnel work 56-1

57 ................................................................................................... General attorneys 57-1

58 ................................................................................................ Management official 58-1

59 ............................................................................................ Professional employee 59-1

60 .............................................................................................. Schedule C positions 60-1

61 .......................................................................................................... Security work 61-1

62 ............................................................................................................. Supervisors 62-1

63 ........................................................................................... Firefighters and nurses 63-1

64 ............................................................................................ Temporary employees 64-1

Figure 34.4 

S REPORT.......................................................... A-1

Figure 35 

HEARING OFFICER’S SCRIPT

................................................................................................................ B-1
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

11

Figure 37.1 

REPRESENTATION OUTLINE I ............................................................ C-1

Figure 37.2 

REPRESENTATION OUTLINE II ........................................................... D-1

Figure 37.3 

REPRESENTATION OUTLINE III .......................................................... E-1

TABLE OF AUTHORITIES ................................................................................. T/A-1
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

12
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

13

INTRODUCTION

HOG 1 and HOG 2

1 Introduction: 

1.1 Purpose of the hearing: The representation case hearing is a formal 

proceeding conducted in accordance with Part 2422 of the Authority's 

regulations. It is part of the investigation in a representation case. Its 

purpose is to inquire into any matter about which a material issue of fact 

exists, and any time there is reasonable cause to believe a question exists 

regarding unit appropriateness. 

1.2 Hearings in representation cases are considered investigatory and 

not adversary. The purpose of representation hearings is to develop a full 

and complete factual record. The rules of relevancy and materiality are 

paramount. There is no burden of proof, except in cases involving 

objections to the procedural conduct of an election or to conduct which 

may have improperly affected the outcome of an election.
Office of the General Counsel

Hearing Officer‟s Guide Revised August 2000 

2

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

Hearing Officer's responsibilities: The representation hearing is 

conducted by a Hearing Officer whose primary duty is to ascertain and 

inquire into the respective positions of the parties and obtain a full, 

complete factual record regarding all matters at issue so that the Regional 

Director may make a reasoned decision. 

2.1 Accomplishment of primary duty: In carrying out this duty, the Hearing 

Officer requires all parties to participate in a prehearing conference for the 

purpose of fully discussing, narrowing and, if possible, resolving the issues 

set forth in the notice of hearing (see § 2422.17 of the regulations). At the 

hearing, the Hearing Officer has discretion to: 

a) call and question witnesses. 

b) question witnesses called by the parties. 

The Hearing Officer does not normally conduct the lead 

questioning of all witnesses. Although the Hearing Officer is 

responsible for ensuring the record is complete, the Hearing 

Officer, if he or she prepares the parties properly, normally asks 

follow-up questions to fill in gaps in witness testimony - listening 

to testimony and obtaining testimony on areas not covered. 

However, the Hearing Officer recognizes that it is his/her 

responsibility to call necessary witnesses for testimony, if for 

some reason the parties do not, since the Hearing Officer is 

responsible for the development of a complete record. If there is 

some reason why a necessary witness does not testify, the 

Hearing Officer ensures that the reason is in the record. See 

also HOG 11.8. 

c) call for and introduce appropriate documentary evidence, limited 

only by the relevance of the evidence to the issues. 

These actions may be necessary to explore matters not raised by the 

parties. In the interest of keeping the record as short as possible, the 

Hearing Officer has the authority to: 

d) seek stipulations, 

e) confine the taking of evidence to relevant disputed issues, and 

f) exclude irrelevant and cumulative material. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

2.2 Other duties: A Hearing Officer also has the authority to:

a) grant requests for subpoenas pursuant to § 2429.7 of the 

regulations (see HOG 27);

b) rule upon offers of proof; 

c) take or cause depositions or interrogatories to be taken when 

appropriate; 

d) regulate the course of the hearing and, if appropriate, exclude 

from the hearing persons who engage in misconduct; 

e) note on the record when witnesses are selective when answering 

pertinent questions and encourage their cooperation in answering 

all questions; 

f) dispose of procedural requests, motions or similar matters on the 

record, including motions referred to the Hearing Officer by the 

Regional Director, and motions to amend petitions; 

g) have the parties state on the record, at any time during the 

hearing, their respective positions concerning any issue in the 

case or theory in support thereof; 

h) continue the hearing from day to day or adjourn it to a later date 

or to a different place by announcement thereof at the hearing or 

by other appropriate notice; 

i) at the discretion of the Regional Director, make recommendations 

on the record; and 

j) take any other action necessary not prohibited by the regulations. 

2.3 Ethical considerations:

2.3.1 General: As noted in chapters 1 and 23 of the Representation Case 

Handling Manual (CHM 1 and 23), the Regional Director is responsible for 

identifying and defining the underlying issues presented by the filing of a 

representation petition. Often many of these issues can be narrowed or 

resolved completely by the Hearing Officer and the parties prior to, or 

during, the hearing. To the extent the Hearing Officer utilizes alternative 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

dispute resolution techniques to discuss, narrow and if possible, resolve 

these issues, the Hearing Officer cannot usurp the Authority's 

responsibility under the Statute to establish appropriate bargaining units 

and provide an opportunity for eligible employees to be exclusively 

represented by a labor organization. The Hearing Officer recognizes at all 

times that any narrowing or resolution of such issues must be consistent 

with the Statutory requirements for appropriate units and unit eligibility. 

2.3.2 Caution: The Hearing Officer ensures that his/her actions described in 

HOG 2.1 and 2.2 do not lead to an appearance of undue assistance to a 

party. The Hearing Officer cannot forget that to the parties s/he is the 

Authority's representative and that the parties expect objective 

consideration of their interests and positions. The services of the Hearing 

Officer are equally available to all parties to the proceeding in the 

development of the evidence. 

2.3.3 Ex parte communications: Prior to the start of the hearing, it is 

appropriate for the Hearing Officer to engage in separate discussions with 

the parties regarding the status of the case including case issues, 

evidence, relevant law, and general evidentiary procedures. During these 

discussions, the Hearing Officer avoids the appearance that s/he is 

advocating a particular position, favoring a party or assisting a party in 

developing its position for the case. 

Once the record opens, however, the Hearing Officer refrains from such 

separate discussions to avoid the appearance of providing undue 

assistance to a party. Generally, any discussion about any facet of the 

proceeding at this stage is held in the presence of all parties. See also § 

2414 of the regulations. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

PREHEARING MATTERS 

HOG 3 through HOG 11

3 Prehearing preparation: To prepare for the hearing, the Hearing Officer: 

3.1 Meets with the agent initially assigned to the case and/or the Regional 

Director to discuss issues raised by the petition, unusual circumstances 

that may have come up during the case and the Region‟s efforts to define 

and narrow issues through contacts with the parties pursuant to § 2422.13 

of the regulations.

3.2 Reviews the case file to ensure proper processing has occurred (e.g. 

showing of interest, if required, has been checked, etc.) and to understand 

the case by becoming familiar with issues, parties and prior case contacts.

3.3 Ensures that all parties affected by issues raised in the petition were 

served with a copy of the petition (see § 2422.6 of the regulations) and that 

any incumbents or employing agencies have responded.

3.4 Ensures that the designated representatives of all known parties have 

been served with a copy of the Notice of Representation Hearing and all 

attachments. (CHM 29.3)

3.5 Reviews relevant case law including any prior or pending related cases 

involving the same parties. This includes a review of Authority decisions in 

representation cases raising similar issues. The purpose of these reviews 

is to make the Hearing Officer aware of the type of evidence considered to 

be determinative of specific issues. This knowledge assists the Hearing 

Officer in his/her duty to obtain a complete and full factual record upon 

which the Regional Director bases a decision. 

3.6 Reviews certification files to obtain background information on the unit 

structure within the activity or the agency.

3.7 Confirms that the letter and attachments accompanying the notice of 

hearing:

a) establish the time, date and location of the prehearing 

conference; 

b) describe known issues raised by the petition; 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

c) address prehearing and hearing procedures and evidentiary 

requirements; 

d) request the parties to furnish the Hearing Officer and each other 

with a list of prospective witnesses by a date certain, normally not 

less than five (5) days prior to the start of the hearing; 

e) include an outline or checklist of the information necessary to 

adequately address the issues raised by the petition and to 

ensure a full and complete record (see HOG 37 though 64 for 

assistance in preparing these outlines and RCL 1 through 28 for a 

substantive discussion about these topics); 

f) include a copy of the petition and amended petition; and 

g) include a copy of FLRA Doc. 1014. 

3.8 Contacts the parties to confirm the teleconference or an on-site prehearing 

conference. During this conversation, the Hearing Officer also: 

a) reviews his/her understanding of the known issues of the 

case, obtaining clarification as necessary; 

b) discusses general prehearing and hearing procedures, 

evidentiary requirements, potential exhibits and 

witnesses, possibilities of evidentiary stipulations; 

c) ensures the names and addresses of parties are correct; 

and

d) confirms the site of and arrangements for a hearing 

room (see CHM 29.5).

3.9 Conducts exploratory telephone conferences/meetings to further clarify 

and narrow the issues, and explores possibilities for an election 

agreement, stipulation or other appropriate resolution in lieu of hearing 

[see § 2422.13(b) and 2422.17(c) of the regulations].

3.10 Confirms that the arrangements for the court reporter have been made 

(CHM 29.5);
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

3.11 Ensures that prehearing motions have been acted upon unless such 

motions have been referred by the Regional Director to the Hearing Officer 

for action at the hearing. See HOG 17 concerning processing prehearing 

motions; and

3.12 Discusses, if appropriate, and obtains authorization from the Regional 

Director to make recommendations on the record. The Regional Director 

specifies the issues on which the Hearing Officer makes recommendations 

(HOG 32.17).

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

4 Preparing materials for hearing:

4.1 Formal papers: The Hearing Officer is responsible for the hearing's 

formal papers which include, as applicable: 

a) petition (with any attachments including service sheet); 

b) amended petition (with any attachments including 

service sheet); 

c) notice of representation hearing (with attachments described in 

CHM 29.3 and a service sheet); 

d) order consolidating cases (with any attachments 

including service sheet); 

e) order rescheduling hearing (with any attachments 

including service sheet); 

f) order severing cases (with any attachments including 

service sheet); and 

g) any other prehearing orders, motions, responses to 

motions (and any motions not acted upon by the 

Regional Director prior to the opening of the hearing). 

h) correspondence related to notifying parties who have been 

identified as affected by issues raised and responses from them if 

they fail to appear/participate at the hearing. If the party fails to 

respond at all to the notification letter, the Hearing Officer states 

on the record who was identified and who failed to respond or 

declined to participate (see HOG Script 35).

i) if issues surface during the hearing that change the status of a 

party(ies), the party(ies) are notified and given an opportunity to 

participate, or in the case of an incumbent, disclaim interest. 

These documents are added as Authority exhibits (not part of the 

formal exhibits) See e.g., U.S. Department of the Interior, 

National Park Service, 55 FLRA 466 (1999) where the 

Authority found that the Regional Director committed 

prejudicial error when during the course of the hearing he 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

found that the employees from each of the affected units 

constituted a separate appropriate unit, but did not properly 

notify the former incumbents of their rights with respect to 

the successorship issue. See HOG 25. 

The Hearing Officer normally serves the formal papers on the 

parties at the prehearing conference, but not later than just prior to 

the start of the hearing. These papers are numbered Authority 

Exhibits 1a through 1... . Formal papers added during the hearing 

and are given consecutive numbers. The Hearing Officer is 

required to prepare two (2) copies of the formal papers for the court 

reporter and one copy for each party to the proceeding. Each set 

of formal papers includes an index. One additional copy is 

prepared for personal use during the proceeding. 

The original of the formal papers is maintained in the case file at all 

times. 

4.2 Case file: The Hearing Officer takes the case file to the hearing for 

reference. In election cases. the file includes the showing of 

interest which is secured during the hearing. 

4.3 FLRA Form 50, Appearance sheet: The information on the top of 

this form is prepared prior to the hearing. An original and a copy 

are required for the record; the original is retained in the file and a 

copy is given to the court reporter. 

4.4 FLRA Form 56, Exhibits introduced in evidence: This form(s) is 

included with the materials for the hearing. The form is designed to 

enable the Hearing Officer to track the status of exhibits from the 

point of being marked for identification to disposition by being 

received in evidence, rejected or withdrawn. These forms are 

retained in the case file. 

4.5 Publications: The Hearing Officer takes copies of the Statute, the 

regulations, pertinent sections of the Representation Case 

Handling Manual (REP CHM) and the complete Hearing Officer 

Guide ((HOG) to the hearing. 

4.6 Other blank forms: The Hearing Officer also has a supply of 

petitions, election agreement forms, withdrawal requests, requests 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

to proceed, extra copies of the Statement of Standard Procedures 

(FLRA Doc. 1014), subpoenas ad testificandum and duces tecum, 

and appearance sheets. 

4.7 Subpoenas: If necessary, prior to the opening of the hearing, the 

Hearing Officer prepares subpoenas for the Regional Director's 

signature pursuant to § 2429.7 of the regulations (see HOG 27). 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

4.8 Hearing Officer's script: The Hearing Officer carries out his/her 

responsibility to ensure a complete factual record by preparing 

carefully prior to the start of the hearing. The Hearing Officer 

becomes: 

a) thoroughly familiar with the case file and the issues 

presented by the petition, 

b) thoroughly familiar with the hearing procedures described 

in this guide, 

c) knowledgeable of applicable case law, 

d) understands the concepts behind the Authority‟s or other 

applicable decisions and the relevant evidence considered 

to be determinative of specific issues, 

and shares such information with all parties. 

In addition to drafting the outline discussed at HOG 3.7e, the 

Hearing Officer drafts a script that outlines the hearing‟s purpose 

and lays the foundation for the matters to develop for the record. It 

also enables him/her and the parties to focus on: 

a) the nature of the hearing, 

b) the issues to address, and 

c) the evidentiary process used to develop the record from 

which those issues are decided. 

The Hearing Officer often drafts this script before the prehearing 

conference because it provides a starting point at the conference, 

helps the parties focus on the issues and can very well lead to the 

resolution of those issues during the conference. See HOG 35 for 

a draft script (also Figure 35). Any change in the issues, either the 

deletion of one and the addition of others, are explained on the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

record. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

5 Witnesses’ appearance: It is expected that most of the evidence 

adduced at the hearing is provided through witnesses who have 

first hand knowledge about the specific matters involved. 

Therefore, the Hearing Officer is responsible for ensuring that the 

witnesses who can provide such information are present at the 

hearing to testify. 

Getting the parties to focus on who would be the best witness for 

the issues raised by the petition begins during the first contacts 

with the parties after the Notice of Hearing has been issued. This 

can take several forms: 

a) discussing, during the initial telephone conversation and 

follow-up conversations, which individuals can best provide 

information pertinent to the issues, based on their first 

hand knowledge; 

b) requesting the parties to provide the Hearing Officer and 

each other with a list of witnesses and the general 

parameters of their testimony in advance of the prehearing 

conference; 

c) ensuring that once the witness lists are received, the 

individuals identified on those lists will provide collectively 

sufficient and relevant testimony to cover all issues raised 

at the hearing in a non-cumulative manner; and/or 

d) reviewing the witness list and the parameters of their 

testimony at the prehearing conference to confirm that all 

issues raised by the petition are addressed at the hearing. 

If the Hearing Officer learns that known witnesses must be 

subpoenaed in order to testify, see § 2429.7 of the regulations and 

HOG 27. If the Hearing Officer finds during the hearing that 

additional witnesses are necessary, see HOG 27.5. 

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

6 Official time for witnesses and reimbursement for travel: 

6.1 Policy: 5 U.S.C. 7131(c) provides: 

Except as provided in subsection (a) of this 

section, 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. 

6.2 Official time for witnesses: Pursuant to § 2429.13 of the 

regulations, if the participation of any employee is deemed 

necessary by the Regi

s regular work hours and when the employee 

would otherwise be in a work or paid leave status. See also ULP 

CHM 3E-3. 

6.3 Travel and Per Diem: Pursuant to § 2429.14 of the regulations, 

witnesses (whether appearing voluntarily, or under subpoena) who 

are deemed necessary at the hearing, shall be paid the same fee 

and mileage allowances which are paid to subpoenaed witnesses 

in the Courts of the United States pursuant to 28 U.S.C. 1821, by 

the party at whose instance the witnesses appear, except that any 

witness who is employed by the Federal Government shall not be 

entitled to receive witness fees where such witness is on official 

time pursuant to § 2429.13 of the regulations. The Authority has 

said that 5 U.S.C. 7131(c), either by itself, or through 5 C.F.R. § 

2429.13, does not authorize the Authority to require an Agency to 

pay a testifying employee‟s travel and per diem expenses. Federal 

Aviation Administration, Northwest Mountain Region, Renton, 

Washington, 51 FLRA 986 (1996) citing Sacramento Air Logistics 

Center, McClellan AFB, California v. FLRA, 877 F.2d 1036 (D.C. 

Cir. 1989). Thus, the Authority stated that whoever calls a witness 

pays any necessary travel and per diem. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

6.4 Employee representatives: The Regional Office may determine 

that participation by employees as representatives for labor 

organizations is necessary pursuant to 5 U.S.C. 7131(c). However, 

the Office of the General Counsel's interpretation of this Statutory 

provision, as applied to employee representatives, is that such 

representatives are entitled to official time, but not travel and per 

diem, to participate in representation hearing proceedings. 

Accordingly, the Hearing Officer makes arrangements with the 

agency for the release of the employee representatives on official 

time in accordance with the guidance in HOG 6.2.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

7 Prehearing exchange of exhibits: FLRA Document 1014 states 

that any party intending to introduce documentary exhibits at the 

hearing is expected to furnish a copy of each proposed exhibit to 

the other parties at least five (5) days prior to the hearing in order 

to facilitate the expeditious development of a full record for decision 

by the Regional Director. The parties are normally expected to 

exchange exhibits at the prehearing conference. The Hearing 

Officer also provides a copy of the formal exhibits at this 

conference. 

Although parties are encouraged to comply with this prehearing 

practice, parties are not precluded from introducing additional 

exhibits at the hearing. Where a copy of the exhibit is not tendered 

to the other parties because it was not contemplated as an exhibit 

prior to the hearing, a copy of the exhibit is furnished to the other 

parties at the time it is offered in evidence at the hearing. The 

parties‟ exhibits are not numbered prior to their introduction at the 

hearing. 

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

8 Prehearing conference: This section pertains to prehearing 

conferences and: 

a. addresses the purpose and objectives of the conference, 

b. suggests areas to cover, and 

c. describes circumstances which may arise that generally 

require clearance from the Regional Office. 

8.1 General policy: Section 2422.17(c) states: 

A prehearing conference will be conducted 

by the Hearing Officer, either by meeting 

or teleconference. All parties must 

participate in a prehearing conference and 

be prepared to fully discuss, narrow and 

resolve the issues set forth in the 

notification of the prehearing conference. 

There can be any number of "prehearing" teleconferences or 

meetings. They may be held weeks before the hearing and/or 

immediately before the hearing. However, in some cases, due to 

resource limitations, an onsite prehearing meeting may not be 

practical until the day before the hearing opens. 

The Office of the General Counsel reads § 2422.17(c) of the 

regulations in conjunction with § 2422.13(b). This section provides 

that a Regional Director may require all affected parties to meet to 

narrow and resolve the issues raised in the petition. In this regard, 

the Hearing Officer makes every effort in appropriate cases to 

actively pursue resolution of the issues raised by the petition 

through the use of one or more meetings with the parties pursuant 

to § 2422.13(b) of the regulations. Note that while at least one 

prehearing conference is required for every case, not every case 

lends itself to the type of meeting envisioned in § 2422.13(b) (for 

example, objections cases). 

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

For more information concerning preparing for and 

conducting meetings held pursuant to § 2422.13(b), see 

section CHM 25.

NOTE: Preparing for the prehearing conference is crucial to 

obtaining an adequate and concise, but complete record. It is 

important that the Hearing Officer establish standards or 

requirements for the parties to prepare properly for the 

prehearing conference.

8.2 Areas to cover (not necessarily in the following order): 

a) A review of the issues raised by the petition or otherwise 

identified by the Regional Director; 

b) Interests and positions of the parties on those issues; 

c) A review of the outline and evidence required to obtain a 

full, complete factual record regarding all matters at issue 

(HOG 3.7);

d) A discussion of evidence that the parties have 

accumulated to coincide with the outlines and issues; 

e) A review and exchange of exhibits and witnesses including 

correlating discussion about and entry of exhibits to 

specific witnesses; 

f) When several employees whose eligibility is in dispute 

have the same title, series and grade (i.e., same job), the 

parties discuss obtaining testimony from one employee 

whose testimony is representative of others in the same 

positions. Details concerning representative testimony or 

aggregate testimony are resolved prior to the opening of 

the hearing. 

Representative testimony is taken from only one witness 

(unless there is a stipulation that aggregation of testimony 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

of identified witnesses is representative of a group of 

employees‟ testimony). NOTE: only one decision is 

made based on aggregate testimony. If testimony 

appears to conflict, Hearing Officer decides whether 

aggregate testimony is inconclusive and additional 

testimony is required.

g) Details relating to taking testimony over the telephone or 

by video transmission are discussed when the parties have 

witnesses scattered across the country. 

h) A review of and distribution of relevant Authority case law 

to determine whether any issues have not been identified 

and to ensure all relevant evidence is placed on the record 

through documents or testimony. 

i) An examination and exchange of formal papers (HOG 4.1 

and 10.2.2);
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

j) Possible stipulations to shorten the record or in lieu of the 

hearing [see 5 U.S.C. 7111(g), HOG 9 and 26];

k) A discussion of hearing procedures including a review of: 

(i) FLRA Document 1014 including proper procedures 

for marking, authenticating and entering exhibits; 

entering joint exhibits; calling witnesses; objections 

and motions; and 

(ii) the Hearing Officer's script, if written, to familiarize 

the parties with the hearing process. 

l) Order of witnesses (HOG 10.2.3);

m) Possible execution of an election agreement or other 

appropriate resolution in lieu of the hearing [see 5 U.S.C. 

7111(g) and HOG 31]; and 

n) Arrangements for the hearing room. 

8.3 Circumstances arising at the prehearing conference which 

generally require clearance from the Regional Office: 

a) Parties are willing to stipulate in lieu of hearing (see HOG 

9, CHM 27.10 and 28.11.3);

b) Parties are willing to enter into an election 

agreement or other resolution in lieu of hearing 

(see HOG 31 and CHM 28);

c) Requests for subpoenas (see HOG 27);

d) Motions to intervene or requests to cross petition 

(see HOG 17.3 and 17.4 for prehearing motions to 

intervene and HOG 23 for cross-petitions; CHM 17

for processing requests for intervention and crosspetitions filed prior to the opening of the hearing); 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

e) Requests to withdraw intervention or petition (see 

HOG 19);

f) A party files a challenge to the validity of the 

showing of interest or a challenge to the status of a 

labor organization [see HOG 24 (discusses both 

types of challenges), CHM 18.19 (challenges to 

the validity of the showing of interest) and HOG 46, 

RCL 10 and CHM 19 (concerning challenges to the 

status of a labor organization)]; and 

g) The petitioner requests to amend the petition and 

the amendment changes the character and scope 

of the unit (see HOG 18.7 and 25 and CHM 13.9, 

13.10, and 13.11). 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

9 Stipulations in lieu of hearings: Stipulations in lieu of hearings 

are permissible and encouraged in most representation matters. 

Section 2422.30(b) of the regulations states that when the Regional 

Director has reasonable cause to believe a question exists 

regarding unit appropriateness, the Regional Director issues a 

notice of hearing. In accordance with 5 U.S.C. 7111(g), the parties 

may waive a hearing by entering into a stipulation for the purpose 

of a consent election, i.e., enter into an election agreement. 

However, 5 U.S.C. 7111(g) is balanced against 5 U.S.C. 7112(a) 

which requires that the Authority determine the appropriateness of 

any unit. 

Thus, in cases involving questions regarding unit appropriateness, 

a hearing may be waived by the parties upon their agreement to an 

election; however, the Regional Director may approve such 

agreement only if the unit meets the appropriate unit criteria set 

forth in 5 U.S.C. 7112(a). See United States Army Safeguard 

Logistics Command, Huntsville, Alabama, 2 A/SLMR 582 (1972); 

Department of Transportation, National Highway Traffic Safety 

Administration, 2 A/SLMR 433 (1972); citing Army and Air Force 

Exchange Service, White Sands Missile Range Exchange, White 

Sands Missile Range, New Mexico, 1 A/SLMR 147 (1971). See 

CHM 27. The OGC interprets 5 U.S.C. 7111(g) to permit the 

parties to enter into a stipulation addressing all appropriate unit 

issues in lieu of a hearing, so long as the stipulation includes a 

waiver of the parties‟ right to a hearing.

For information about preparing stipulations, see HOG 26. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

10 Pre-opening preparations: This section addresses actions to be 

taken by the Hearing Officer during the time period following the 

conclusion of the prehearing conference and prior to the opening of 

the hearing. 

10.1 To do on your own:

a) Draft or revise script as discussed in HOG 4.8; 

b) Update outline discussed in HOG 3.7 and if not already 

completed, add key factors from Authority decisions that 

relate to the issues; 

c) Read carefully and thoroughly potential exhibits to ensure 

relevancy to issues raised by the petition (see HOG 15); 

and

d) Review research materials and prepare copies to take to 

the hearing (HOG 8.2f). 

10.2 Immediately prior to the opening of the hearing: 

10.2.1 Complete appearance sheet, FLRA Form 50: 

Prior to the opening of the hearing, the Hearing Officer circulates 

the original and a copy of the Appearance Sheet among the 

parties. The Hearing Officer reminds the parties to comp

s decision. Accuracy 

and legibility of the entries is also important since the court reporter 

uses this information when entering the parties‟ appearances on 

the record. Any representative for any party arriving late completes 

the appearance sheet promptly upon arrival. 

A representative for a party enters his/her appearance on the line 

designating the “Main Representative.” Any additional appearances 

are entered on the following lines. However, the name of any 

individual whom a party intends to use solely as a witness is not

entered on the appearance sheet. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

After all parties have entered their appearance, the Hearing Officer 

collects the forms and inspects them for completeness, legibility, 

etc. The Hearing Officer retains the original appearance sheet at 

the conclusion of the hearing. A copy is provided to the court 

reporter at the beginning of the hearing to assist the court reporter 

when spelling names and addresses of parties whose appearance 

is entered into the record. 

10.2.2 If updated since the prehearing conference, re-examine the 

formal papers: 

Prior to the opening of the hearing, each of the parties is afforded 

the opportunity to examine any updated formal papers which will be 

offered in evidence as Authority exhibits (see HOG 4.1). Additional 

exhibits may have been added to the formal papers since the 

prehearing conference. Copies are also provided to the parties. 

This is generally done after the parties have completed the 

Appearance Sheet. Showing the exhibits to the parties before the 

hearing begins can save the time which would otherwise be 

required for the examination during the hearing. If any party 

attempts to raise any objection during the prehearing examination 

regarding the admissibility of an exhibit, the Hearing Officer 

instructs the party to reserve the objection until the appropriate time 

during the hearing. 

Once the hearing opens, when the Hearing Officer offers the formal 

papers in evidence, the Hearing Officer states that the formal 

papers were shown to parties prior to the opening of the hearing. 

Like any exhibit offered in evidence, the parties have the right to 

examine the formal papers and to raise any objections (see HOG 

script 35.2 for a discussion on handling objections to the 

introduction of the formal papers). Any objection made during a 

hearing regarding the admissibility of any of the formal papers is, 

after being heard, overruled (see HOG script 35.2).

10.2.3 Order of witnesses: 

Prior to the opening of the hearing, the parties discuss the order in 

which the parties will proceed with their witnesses. The activity or 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

agency normally proceeds first with its witnesses to achieve an 

orderly development of the record. This is particularly important 

where the appropriateness of the unit is in issue and the activity‟s 

witnesses are usually more knowledgeable about the activity‟s 

mission, organization, operations, bargaining history, etc. than the 

union‟s witnesses. 

The Hearing Officer is not bound by the preference or agreement of 

the parties regarding the order of witnesses, particularly where the 

Hearing Officer determines that the development of the record or 

the testimony of certain witnesses requires proceeding in a 

different manner than that desired by the parties. In all instances, 

however, the Hearing Officer encourages all parties to cooperate. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

10.2.4 Check again into possibilities for stipulations, election 

agreement or resolution of other issues (see HOG 26 and 31 

as appropriate); 

10.2.5 Arrange hearing room: 

When the hearing is not being held in a Regional Office hearing 

room or other courtroom, the room being used for the hearing 

contains appropriate furniture that can be arranged in a manner 

suitable for an administrative proceeding. The arrangement 

provides for designated adjacent areas/seating for each party's 

representative(s), the testifying witness, the court reporter and the 

Hearing Officer. Separate seating within the room (or in a suitable 

nearby room) is also made available as a witnesses‟ waiting area. 

Once these needs have been accommodated, a spectator seating 

area is provided if space permits. 

11 Things for the Hearing Officer to keep in mind as the hearing 

opens: 

11.1 Recesses for breaks, lunch, etc.: The Hearing Officer provides 

the parties with recesses for breaks, lunch, etc., when necessary, 

consistent with the requirement to develop a full and complete 

record as expeditiously as possible. The Hearing Officer decides 

the number and length of any break. 

11.2 Smoking: Rules on smoking at the hearing are consistent with the 

smoking policy of the building where the hearing is held. 

Otherwise, the smoking policy is within the discretion of the 

Hearing Officer.

11.3 Decorum of parties and witnesses: Parties and witnesses are 

expected to conduct themselves appropriately at all times and to 

cooperate with the Hearing Officer. If any party behaves 

inappropriately or fails to cooperate, the Hearing Officer promptly 

and firmly instructs the offending individual(s) that this behavior is 

not tolerated. If the misconduct or lack of cooperation continues, 

the Hearing Officer recesses the hearing and contacts his/her 

supervisor for guidance. Sanctions may be imposed dependent on 

the offensive individual‟s role at the hearing. [See § 2422.15 of the 

regulations, HOG 2.2(e), and CHM 22, 25.10 and 25.11].
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

11.4 Things to discuss with the court reporter: The Hearing Officer 

knows in advance of the hearing the required forms and takes them 

with him/her. At the hearing, the Hearing Officer checks with the 

court reporter to ascertain what forms to complete for the court 

reporting service. If the Hearing Officer wants to conduct part of 

the hearing outside normal business hours, the Hearing Officer 

ascertains the court reporter‟s availability and checks the court 

reporting contract. 

11.5 Hearing Officer’s demeanor towards parties: The Hearing 

Officer is keenly aware that the representation hearing is a formal 

proceeding and that the Hearing Officer represents the FLRA. The 

Hearing Officer‟s demeanor sets the tone for the hearing. By 

dressing and conducting himself/herself in a manner consistent 

with the formality of the proceeding, the Hearing Officer lends 

credibility to the hearing process. The parties‟ representatives are 

treated with courtesy and respect. They are addressed by their 

surnames at all times while on the record. 

At all times, the Hearing Officer avoids making inappropriate or “off 

the cuff” remarks - such as accusing a party rep of “playing 

games;” allowing a witness to testify about an issue the Hearing 

Officer believes is irrelevant but states “put it on for whatever its 

worth.” 

11.6 Hearing Officer’s demeanor towards witnesses: Normally, the 

witnesses‟ participation in representation hearings is voluntary. 

They are: 

a) treated with courtesy and respect; 

b) if necessary, offered assistance in taking the witness 

stand; 

c) if requested, provided with an explanation of hearing 

procedures; and 

d) always thanked upon completion of their testimony. 

11.7 Off the record remarks: Off-the-record discussions may prove 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

useful in narrowing or resolving issues. The Hearing Officer 

ensures that pertinent off-the-record discussions are summarized 

on the record to: 

a) document the progression of the hearing, 

b) prevent abuse of the hearing process, and 

c) permit a resolution of the issues consistent with the Statute 

. 

When appropriate, the Hearing Officer asks the parties‟ 

representatives to restate for the record their interests and/or 

positions expressed while off the record. 

11.8 When the parties elect to allow the Hearing Officer to act as 

the primary examiner: In very rare circumstances, the parties may 

ask the Hearing Officer to act as the primary examiner of the 

witnesses. In effect, the parties are allowing the Hearing Officer to 

“make the record.” This role is discouraged and only used when 

the parties are so inexperienced that the record would be lengthy, 

cumbersome and inadequate without the Hearing Officer‟s 

involvement. The Hearing Officer obtains approval from the 

Regional Director prior to assuming this role and ensures the 

record reflects that the parties agreed to the Hearing Officer 

assuming the lead questioning and have no objection to it. 

11.9 When the Hearing Officer is uncertain on how to proceed: If at 

any point during the hearing, the Hearing Officer is uncertain on 

how to proceed, s/he recesses the hearing and contacts the 

supervisor. It is never wrong to “call home.”
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

EVIDENTIARY MATTERS 

HOG 12 through HOG 15 

12 Evidentiary and procedural matters: Representation hearings 

are considered investigatory and not adversarial in nature. At the 

same time, such hearings are formal proceedings. Their purpose 

is to develop a full and complete factual record upon which the 

Regional Director may base a decision. The rules of relevancy and 

materiality are paramount. There is no burden of proof except in 

objections cases (see HOG 36 for Hearings on Election 

Objections). The technical rules of evidence are followed only to 

maintain the formality of the proceedings. They are not used for 

the purpose of excluding evidence. 

HOG 12 through 31 are designed to address evidentiary and 

procedural considerations which the Hearing Officer may confront 

at any time during the course of the hearing process. 

13 Considerations in developing evidence: 

13.1 Best evidence rule: Generally, the two most common methods of 

developing record evidence are through witness testimony and the 

introduction of documents. 

13.1.1 Testimony: The best evidence obtained from witnesses is 

testimony provided by those with first hand knowledge of the 

matters under examination. 

13.1.2 Introduction of documents: To prove the contents of a 

document, the best evidence is the document itself. Production of 

the document prevents fraud or error as to the exact words of the 

document. While oral testimony regarding the content of a 

document is permissible, the Hearing Officer makes every effort to 

secure the document in order to complete the record. The Hearing 

Officer is responsible for ensuring the document is relevant to the 

proceeding. Any inconsistencies and ambiguities in the document 

itself and as compared to other documents and testimony are 

clarified in the record. Any codes or abbreviations are explained on 

the record. 

13.2 Ruling on the admissibility of evidence: The following issues 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

may arise as to the admissibility of evidence: 

13.2.1 Foundation: 

a) The foundation for a witness‟ testimony is demonstrated by 

establishing a basis for the witness' knowledge regarding 

the matter about which s/he will be questioned. The 

common phrase is “qualifying a witness.” Asking a witness 

to state his/her name, title, position and to describe his/her 

position is basic information required. In addition, when, 

where, what time, and who was present are the types of 

preliminary fact questions which are asked to establish the 

witness' ability to testify. Foundation questions also help 

determine if the witness' testimony is going to be relevant. 

b) The foundation for the admission of documents is 

established by authenticating those documents. This is 

accomplished by showing the document to the witness 

through whom it is being offered in evidence and asking 

the witness to describe it. The witness, based upon 

firsthand knowledge, describes the nature and content of 

the document. In most instances, this completes the 

identification and authentication of the document. 

13.2.2 Relevancy: Relevancy concerns whether the evidence offered is 

going to help decide the matters under consideration. If not, the 

Hearing Officer considers excluding it, regardless of whether any 

party objects. Relevancy is a factor not only in oral testimony, but 

also in documentary evidence (see HOG 15.9 for a discussion 

applying the concept of "relevancy" to bulky exhibits). 

13.2.2.1 Evidentiary considerations - unit: Decisions regarding 

unit determinations reflect the conditions of employment that exist 

at the time of the hearing rather than what may exist at the time in 

the future unless there are definite and imminent changes planned 

by the agency. Defense Logistics Agency, Defense Contract 

Management Command, Defense Contract Management District, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

North Central, Defense Plant Representative Office-Thiokol, 

Brigham City, Utah (DPRO-Thiokol), 41 FLRA 316 (1991). See 

also RCL 1 and HOG 37.

13.2.2.2 Evidentiary considerations-employee eligibility: 

Determinations of an employee‟s unit eligibility are based on 

testimony as to an employee's actual duties at the time of the 

hearing, rather than on duties that may exist in the future. See 

Department of Housing and Urban Development, Washington, 

D.C., 35 FLRA 1249, 1256-1257 (1990); : Materiality is related to 

relevance, but is not identical. Materiality concerns the degree of 

importance of the evidence. If the evidence is relevant but of 

minuscule importance, it may be excluded (see also HOG 13.2.7

regarding cumulative evidence). 

13.2.5 Hearsay and admissions: Hearsay is evidence not based upon 

the personal knowledge of the witness but on what the witness has 

heard others say. It is secondhand evidence as distinguished from 

original evidence (e.g., "Bill told me that Joe quit the union," rather 

than “Joe said he quit the union.”). 

Hearsay is distinguishable from admissions made by a party 

opponent. What a party or its agents say or do in the presence of a 

party opponent or its agents is not hearsay but an admission (e.g., 

“My supervisor told me that he told Bill to quit the union or be 

fired.”). This is an admission by an agent of a party and is not 

hearsay. Such testimony can be received to prove the truth of the 

matter asserted. 

While hearsay is received into evidence at the discretion of the 

Hearing Officer, it is of little evidentiary value. The Hearing Officer 

insists that parties produce other witnesses or evidence that is 

more probative of the point. 

13.2.6 Leading questions: A leading question is one in which the 

question suggests an answer to the witness; a leading question 

calls for a yes or no answer. In effect, the party's representative is 

doing the testifying by using leading questions. 

On direct examination, leading questions are acceptable in 

preliminary areas (e.g., "You are employed by...?" or "You're the 

Personnel Officer of the Activity?"). They are not permitted in 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

critical areas (e.g., "Isn't it true that the mission of the activity is...?" 

or "Isn't it true that you type labor relations documents?"). Leading 

questions asked by the questioner on direct examination are 

permitted initially when a witness appears intimidated by the 

process, hostile, identifies with the opposing party, surprises the 

questioner with his/her responses, is mentally impaired, or 

otherwise uncooperative. On objection, or on the Hearing Officer's 

own motion, the questioner of a "friendly" witness is cautioned not 

to use leading questions in critical areas. The Hearing Officer 

assists the parties by illustrating the proper phrasing of non-leading 

questions. The Hearing Officer is not permitted to ask leading 

questions (see HOG 32.16, examination by Hearing Officer). 

During cross-examination, that is, questioning by representatives of 

the other parties, leading questions are permissible. 

13.2.7 Oral evidence that contradicts written evidence: Oral evidence 

that appears to contradict written evidence is not excluded if it is 

necessary to complete the record. Otherwise, it can be excluded if 

it is not probative. 

13.2.8 Cumulative evidence: Cumulative evidence is repetitive 

evidence on a point that has already been fully established. Such 

evidence burdens the record and is excluded. 

13.2.9 Opinion evidence: Opinion evidence is what the witness thinks or 

believes in regard to the matter in dispute as distinguished from 

personal knowledge of the facts themselves. Generally, opinion 

evidence is not relied on in lieu of fact. 

13.2.10 Judicial notice: Judicial notice allows a Hearing Officer to shortcut 

the taking of the testimony regarding matters that are common 

knowledge (e.g., “The U.S. Department of Labor is an agency of 

the Federal government.”). An objecting party is normally 

permitted to show the contrary by competent evidence (see also 

HOG 29, Offer of Proof).

13.2.11 Official notice: Official notice allows an agency to recognize its 

own proceedings and decisions (e.g., recognizing the relevant facts 

in a related Authority decision). The matter of which official notice is 

taken may or may not be dispositive of the current issue. For 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

example, earlier jurisdictional facts are brought up to date, etc. The 

Hearing Officer takes such notice at the request of a party or on 

his/her own motion, after notifying the parties of the ruling. (e.g., 

“The Authority decided in 6 FLRA 52 that it will not generally clarify 

the bargaining unit status of vacant positions.”) An objecting party 

is normally permitted to show the contrary by competent evidence. 

(See also HOG 29, Offer of Proof).

13.2.12 Administrative notice: Administrative notice allows a Hearing 

Officer to recognize information obtained from a commonly 

recognized source for that information. [see U.S. Department of 

Defense, National Guard Bureau, New York National Guard, 

Latham, New York, 46 FLRA 1468 at 1474 (1993) where 

administrative notice was taken to OPM‟s publication “Union 

Recognition in the Federal Government.”] An objecting party is 

normally permitted to show the contrary by competent evidence. 

(See also HOG 29, Offer of Proof).

13.3 Theories of res judicata: A party may raise the argument in a 

case that there is controlling precedent and the precedential case 

“„is res judicata in the instant case.‟” : The doctrine of claim 

preclusion bars a subsequent suit between the same parties on the 

same cause of action where there has been a final judgment on the 

merits of that cause of action. NMB, 54 FLRA 1474 (1998) citing 

Stein, Mitchell and Mezines, Administrative Law, 40.01 at 40-2. 

See also United States Department of Justice, United States 

Immigration and Naturalization Service, United States Border 

Patrol, El Paso, Texas and American Federation of Government 

Employees, AFL-CIO, National Border Patrol Council, 41 FLRA 

259, 263 (1991). 

13.3.3 Doctrine of issue preclusion: The doctrine of issue preclusion 

“prevents a second litigation of the same issues of fact or law even 

in connection with a different claim or cause of action.” NMB

quoting U.S. Department of the Air Force, Scott Air Force Base, 

Illinois, and National Association of Government Employees, 35 

FLRA 978, 982 (1990). The Authority stated in NMB that this 

doctrine does not apply, however, where there is a question of 

whether the underlying legal doctrines at issue remain valid and 

cited Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

599-600 (1948); Western Oil and Gas v. U.S. Environmental 

Protection Agency, 633 F.2d 803 (9th Cir. 1980). Further, the 

Authority found that the doctrine of issue preclusion is not intended 

to prevent an adjudicatory body, such as the Authority, from 

reexamining applicable legal principles where necessary. 

14 Scope of cross examination: In adversarial proceedings, cross 

examination is normally limited to matters raised on direct 

examination and/or matters going to the witness' credibility. This 

has no application in representation hearings. A cross-examiner 

who wants to question a witness regarding relevant matters is 

permitted to do so irrespective of whether the subject was raised 

on direct examination. 

The Hearing Officer is obligated to control cross examination 

regarding materiality, relevancy and necessity. If a party‟s cross 

examination is repetitive of matters already on the record or enters 

into irrelevant areas, the Hearing Officer instructs the party to move 

to another area of examination. If the party fails to follow these 

instructions, the Hearing Officer normally disallows the line of 

questioning. 

 

15 Exhibits: 

15.1 General overview: Exhibits are introduced either through a 

witness, by stipulation, or as a joint exhibit of the parties. A party 

seeking to have an exhibit admitted in evidence through a witness 

adheres to specific procedural steps: 

a) Mark for identification: the party representative has the 

document marked for identification by the court reporter 

(see HOG 15.2 for a discussion on marking exhibits). 

b) Show to other parties: the document is shown to the 

other party's representative before it is offered to the 

witness. 

c) Authenticate by witness: the witness is then given the 

document and asked if s/he can authenticate it by 

identifying it. The witness is examined on any relevant 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

details (see HOG 13.2.1).

d) Offer into evidence: if the document is offered into 

evidence, the other parties have the right to conduct a voir 

dire examination and/or object (see HOG 15.6 for a 

discussion of voir dire examinations).

e) Ruling by Hearing Officer: after allowing the parties to 

state their positions regarding any objection, the Hearing 

Officer rules on the objection and on the admission of the 

exhibit by either receiving or rejecting the exhibit (see HOG 

15.8 for a discussion of the Rejected Exhibit File). 

This process usually takes very little time. The Hearing Officer 

ensures that the parties do not take testimony on the exhibit until 

after it is offered and received into the record. 

15.2 Marking exhibits for identification: An exhibit is marked for 

identification by designating the party; i.e., Petitioner, Activity, 

Intervenor or the Authority and the exhibit number on the face or 

cover sheet of the document. Exhibits for each party are numbered 

consecutively. For example, each of three exhibits offered in 

evidence by the petitioner is marked Petitioner 1, Petitioner 2 and 

Petitioner 3. 

Generally, the party offering the exhibit hands the document to the 

reporter, asking that

s Exhibit 4,” etc. The reporter either stamps the 

document with a special exhibit stamp, showing various entries, 

including a place for the designation of the party and the number 

identifying the exhibit, or simply writes the name and number on 

the face of the exhibit. When the exhibit is marked for identification, 

two copies of all exhibits are submitted to the Hearing Officer and a 

copy to all other parties [§ 2422.20(b) of the regulations]. The 

document is then returned to the party. The Hearing Officer enters 

the exhibit number and description on FLRA Form 56. In any 

hearing involving more than one intervenor, the identity of each 

intervenor is reflected on the respective exhibits; e.g., Intervenor 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

AFGE 1; Intervenor NFFE 3; etc. 

15.3 Marking Authority exhibits: HOG 4.1 describes the manner in 

which the Authority‟s formal documents are marked. These 

documents are marked differently than other exhibits. However, 

Authority exhibits other than the formal exhibits are numbered 

consecutively beginning with Authority 2. 

15.4 Authenticating the exhibit: (see HOG 13.2.1). The Hearing 

Officer permits parties to raise questions with respect to information 

contained in exhibits at the hearing. The Hearing Officer gives both 

parties an opportunity to address the exhibits with appropriate 

questions before they are entered and with substantive questions 

to the appropriate witness after they are entered. 

15.5 Offering the exhibit in evidence: After an exhibit is identified and 

authenticated, the party offers it into evidence. The Hearing Officer 

then asks if there are any objections to the receipt in evidence of 

the proposed exhibit. If a party decides not to offer an exhibit into 

evidence, the exhibit is withdrawn; the exhibit is not left “dangling” 

on the record. 

15.5.1 Objection to exhibit: If a party attempts to enter an exhibit through 

a witness who cannot testify to its authenticity and the parties 

object, it is a better practice to ask the party trying to enter the 

exhibit to hold off until a witness who can authenticate it can testify, 

rather than rejecting it outright. Formality is important, but not as 

important as a good clean record that makes sense. 

15.5.2 Handling exhibits that the parties do not want to enter: There 

may be occasions when a party does not want to enter an exhibit, 

but the Hearing Officer considers the document critical for the 

record. The Hearing Officer then introduces it as his/her own 

exhibit and marks it as an Authority exhibit. 

15.6 Voir dire: Technically, in nonadversary proceedings, there is no 

need for voir dire examination. Occasionally, however, a party may 

request permission to examine the witness on voir dire, which is 

defined as the preliminary examination of a witness where an 

objection is m competency or interest. 

Since this type of examination is preliminary to possible objections 

being raised by the party, the Hearing Officer permits such 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

questioning for this limited purpose. 

For example, assume that the parties are in dispute as to whether 

a certain letter bearing the signature of the Director of Labor 

Relations, deceased, was, in fact, signed by the latter. The witness 

on the stand, through whom the activity is seeking to introduce the 

letter into evidence, is questioned by another party on voir dire

regarding the circumstances under which the witness purportedly 

saw the letter being signed by the former Director of Labor 

Relations. 

15.7 Ruling by the Hearing Officer: Every exhibit that is offered into 

evidence is ruled on by the Hearing Officer as to its admissibility. 

Objections by one or more of the parties, including any renewed 

objections by a party after completing its examination of a witness 

on voir dire, is considered. The Hearing Officer allows the parties to 

state their positions regarding any objection before ruling on the 

admissibility of the exhibit. If the Hearing Officer is satisfied as to 

its relevancy and materiality, the objection, if any, is overruled and 

the exhibit is received into evidence. If the exhibit is deemed 

inadmissible, the objection is sustained and the exhibit is placed in 

the Rejected Exhibit File, if not withdrawn by the offering party. The 

Hearing Officer makes the appropriate mark on the FLRA Form 56 

regarding the final disposition of the exhibit. The Hearing Officer 

does not state a reason for receiving or rejecting an exhibit in 

response to an objection. See HOG 28.4.

15.8 Rejected exhibit file: An exhibit which has been ruled upon as 

being inadmissible is either withdrawn or placed in the Rejected 

Exhibit File at the option of the offering party. By retaining the 

exhibit in the rejected file, the party preserves the right to seek a 

reversal of the ruling by the Regional Director (or the Authority, if 

the Decision is appealed) and have the exhibit considered as 

evidence. On the other hand, if the party elects to withdraw the 

rejected exhibit, such post-hearing arguments cannot be raised. 

15.9 Bulky exhibits: The Hearing Officer does not permit a party to 

offer into evidence any voluminous exhibit, such as a manual of 

personnel policies and practices, detailed job descriptions, payroll 

records, etc. unless the particular pages, section, paragraphs, etc. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

for which it is being offered are specified. In addition, the offering 

party explains the relevancy of such material: 

a) to allow the parties to consider whether they wish to object 

to its admissibility, and 

b) to provide the Hearing Officer with an informed basis upon 

which to make a ruling. 

Where necessary, a recess is granted, either upon a party‟s 

request or upon motion by the Hearing Officer, to allow the offering 

party to delineate the desired portion(s). A recess also allows the 

Hearing Officer and parties to review the exhibit to assess the 

relevancy and materiality of the particular document. If necessary, 

the parties and/or the Hearing Officer may request that the 

remainder of the exhibit be admitted on to the record. 

15.10 Joint exhibits: A joint exhibit is an exhibit that is offered into 

evidence by all of the parties (with the exception of the Hearing 

Officer). It is usually a document that has been prepared for the 

hearing by the parties or is an official document of the agency. If 

the parties enter joint exhibits, they: 

a) mark them for identification as “Joint Exhibit 1 ...,” 

b) stipulate to its authenticity, and 

c) offer it into the record. 

The parties have the option of selecting a witness to introduce the 

joint exhibit or may enter it by stipulation. Either way, the parties 

ensure that the witness or the stipulation describes the document‟s 

relevance when authenticating it. It is important that a witness, 

mutually selected by the parties, tie the joint exhibits to the issues 

of the case unless the parties do it in a stipulation. In short, the 

Hearing Officer exercises judgement and ensures the record is 

complete as to the relevance of the joint exhibits. 

15.11 Documentary evidence that the parties refuse to provide to all 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

11

parties: The Hearing Officer does not normally agree to review 

documentary evidence that a party refuses to provide to all parties. 

In other words, there is usually no claim of privilege in a 

representation hearing. 

However, there are some exceptions such as petitions involving 5 

U.S.C. 7112(b)(6) or (7) eligibility issues (security work and 

investigation and audit functions). The Activity representative in 

these types of cases may request the Hearing Officer to review 

certain documentation in-camera. The Hearing Officer is required 

to adequately and accurately describe the content of the 

memorandum or other documentation so as to provide meaningful 

direct and cross-examination. (Note as reflected in the expression 

“in camera,” the document is not put on the record.) See also Part 

2, Chapter J of the Litigation Manual. 

If issues arise at hearing concerning “in camera” inspections of 

exhibits, the Hearing Officer “calls home” for advice. 

15.12 Summary exhibits: Voluminous documents may be reduced to 

summary form for better understanding. Upon request, the 

opposing party is given the opportunity to examine the underlying 

documentation on which the summary is based. This examination 

is often done at periods of time outside of the normal hearing 

hours. The summary is typically received into evidence with the 

understanding that the opposing party may object to the summary 

exhibit after completing review of the entire document. 

15.13 Custody of exhibits: All exhibits which are received into evidence 

or placed in the rejected file are retained in the possession of the 

court reporter. During the proceedings, both sets of exhibits 

provided for the record are held by the reporter when not being 

used for some purpose relevant to the hearing by the Hearing 

Officer or by any of the parties. Similarly, during the period of 

adjournment to a specific date, the reporter retains the exhibits. In 

the latter instance, the Hearing Officer reminds the reporter of the 

obligation to return to the hearing with the exhibits or to arrange 

with the reporting company to transfer the exhibits to the reporter 

who will be at the hearing when it resumes. However, where the 

hearing is postponed or adjourned for an indefinite period, the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

12

reporter usually forwards the exhibits to the Regional Office 

pending resumption, if any, of the hearing. 

After the close of the hearing, the original and duplicate set of the 

transcript and exhibits are sent to the Regional Director by the 

court reporter. 

15.14 Request to withdraw original copy of exhibit: After the original 

exhibit has been received into evidence, the offering party may 

request leave of the Hearing Officer to withdraw it for the purpose 

of substituting a copy. When this request is granted, the Hearing 

Officer reminds the party withdrawing the original of his/her 

responsibility for making the copy(ies) and returning the original as 

soon as possible to the court reporter. The Hearing Officer cannot 

assume responsibility for holding the copy or transmitting it to the 

court reporter on behalf of the borrowing party. 

15.15 Receipt of exhibit after conclusion of hearing: An exhibit that a 

party is unable to introduce during the hearing or an exhibit that the 

Hearing Officer has determined is necessary, may be offered after 

the hearing has ended (but not closed). Under these 

circumstances, the parties enter into a stipulation at the hearing 

that they have no objection to the exhibit being received into 

evidence after the hearing has concluded. The Hearing Officer then 

states on the record that the record will remain open until a 

specified date for the sole purpose of receiving the document into 

the record, and that upon receipt of the particular exhibit, the 

hearing will be closed. 

Alternatively, the Hearing Officer is permitted to rule that the 

hearing will remain open, upon completion of all other testimony, 

for the limited purpose of permitting the party to offer the named 

exhibit by a designated date. The ruling also includes a statement 

that the party entering the document will serve all other parties with 

a copy of the proposed exhibit and that the positions of the parties 

regarding the exhibit are due in the Regional Office not later than a 

specified date. After receiving the exhibit, the Hearing Officer 

issues a written order setting forth the ruling on the proffered 

exhibit as well as formally closing the record. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

13

In view of the delay resulting from this procedure, the Hearing 

Officer considers carefully the materiality of the proposed exhibit 

when deciding whether to permit a party to submit an exhibit after 

the hearing has been concluded. 

If the exhibit is not received by the date specified or is not legible, 

the Hearing Officer consults with the Regional Director, and 

thereafter either closes the record or grants additional time to 

submit a usable document. Consideration is given to the relevance 

and significance of the document to the issues to be decided. See 

CHM 59 for a discussion of Orders and Figures C59.2 and C59.3. 

MOTIONS 

HOG 16 through HOG 21

16 Motions:

16.1 Purpose of a motion: Section 2422.19(a) of the regulations 

states: “Subsequent to the issuance of a Notice of Hearing in a 

representation proceeding, a party seeking a ruling, order, or relief 

must do so by filing or raising a motion stating the order or relief 

sought and the grounds therefor. Challenges and other filings 

referenced in other sections of this subpart may, at the discretion of 

the Regional Director or Hearing Officer, be treated as a motion.” 

16.2 Service of motion: Motions are served according to §§ 2422.4 

and 2429.24 through § 2429.27 of the regulations. 

16.2.1 Basic rule: The regulations require that every petition, motion, 

brief, request, challenge, written objection, or application for review 

is served on all parties affected by issues raised in the filing. The 

service includes all documentation in support thereof, with the 

exception of a showing of interest, evidence supporting challenges 

to the validity of a showing of interest, and evidence supporting 

objections to an election. The filer is required to submit a written 

statement of service to the Regional Director. (See § 2422.4 of the 

regulations and CHM 6 and CHM 7)

16.2.2 Specific rule: An original and four (4) copies of any motion are 

filed with the Regional Director or the Hearing Officer by the party 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

14

filing the motion (§ 2429.25 of the regulations). Copies are served 

by the filing party on all other parties to the proceeding. A 

statement of service accompanies the original motion. 

 

17 Processing prehearing motions: This section provides general 

information about processing motions that are filed after the Notice 

of Representation Hearing issues, but before the hearing opens.

17.1 Generally: Motions are filed at any time prior to the opening of the 

hearing. All motions made prior to a hearing and any responses 

are made in writing and filed with the Regional Director. Responses 

to such motions are filed within five (5) days after service of the 

motion [see § 2422.19(b)]. Copies are served on all parties. A 

statement of such service accompanies the original. If the Hearing 

Officer receives a motion from a party prior to the opening of the 

hearing, s/he gives the motion to the Regional Director for action. 

Regional Directors have the option of ruling on all motions filed with 

them prior to the hearing or they may refer such motions to the 

Hearing Officer for ruling at the hearing with certain exceptions 

noted herein (see HOG 17.4, 17.5 and 23). When a motion is 

referred to the Hearing Officer, all parties are notified that the 

motion has been referred to the Hearing Officer. A prehearing 

ruling made by the Regional Director is in writing and served on the 

parties (see § 2422.19(b) of the regulations). All prehearing 

motions, any responses thereto, and any rulings by the Regional 

Director are made part of the record as Authority exhibits. 

17.2 Prehearing motion to postpone: A motion for postponement of 

the hearing is filed with the Regional Director and a copy served on 

each of the other parties. The request is required to be specific as 

to the reason(s) for the desired postponement, and sets forth the 

suggested date(s) for rescheduling the hearing. The moving party 

is also required to ascertain in advance and set forth in the request, 

the respective positions of the parties regarding the request (See 

FLRA Document 1014 and CHM 29.7.4).

17.2.1 Policy on granting prehearing motions to postpone: Cases set 

for hearing are heard on the day set, and postponements are 

granted only for good cause shown.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

15

17.2.2 Granting the motion to postpone: When the Regional Director 

grants a motion to postpone a representation hearing, the Regional 

Office notifies the reporting service immediately. A FLRA Form 48, 

Order Rescheduling Hearing, is also issued and served on all the 

parties. The following sentence is inserted immediately below the 

title, namely, “After due consideration of the request by the 

(activity) (petitioner) (intervenor) . . . .” When completing the 

remainder of the form, the date to which the hearing is being 

rescheduled is inserted. The time and place is restated in the Order 

even if unchanged. 

17.2.3 Denying the motion to postpone: If the Regional Director denies 

a motion to postpone a representation hearing, the parties are 

notified immediately by telephone, followed by an Order Denying 

Motion to Postpone (see CHM 59 for a discussion about preparing 

Orders). 

17.2.4 Indefinite postponement: In appropriate circumstances, a 

Regional Director has discretion to postpone a hearing indefinitely 

by issuing an Order Postponing Hearing Indefinitely (see CHM 59). 

A Regional Director may order an indefinite postponement upon 

receipt of a motion form a party(ies) or on his/her own. 

17.2.5 Resumption of indefinitely postponed hearing: An Order 

Rescheduling Hearing as shown in Figure C29.7C is issued and 

served on all parties and the reporting service where a hearing that 

has been postponed indefinitely is scheduled to resume. 

17.3 Prehearing motions (requests) to intervene, cross-petition, 

challenges to the validity of the showing of interest and 

challenges to the status of a labor organization: The 

regulations provide that a motion to intervene, cross-petition, 

challenge to the validity of the showing of interest or challenge to 

the status of a labor organization may be filed at any time prior to 

the opening of a hearing (see §§§ 2422.8, 2422.10, and 2422.11 of 

the regulations), unless good cause is shown for granting an 

extension. If no hearing is held, a request to intervene, crosspetition, challenge the validity of a showing of interest or the status 

of a labor organization must be filed prior to action being taken 

pursuant to § 2422.30. This subsection provides an overview of 

these procedures. For specific guidance, see referenced chapters 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

16

in the REP CHM or the HOG. 

a) Prehearing cross-petitions or motions to intervene are 

normally processed in the Regional Office in accordance 

with CHM 17 as soon as they are received. Cross-petitions 

or motions to intervene that are received too close to the 

hearing to process are referred to the Hearing Officer and 

processed in accordance with HOG 17.4, HOG 23 and 

CHM 17.3. See also HOG script 35.5. Cross-petitions or 

motions to intervene filed during the hearing are processed 

according to HOG 18.4. 

 

b) Challenges to the validity of the showing of interest are not 

referred to the Hearing Officer, but are handled 

administratively in accordance with CHM 18.19 (challenges 

to the validity of the showing of interest). Challenges to the 

validity of the showing of interest that are submitted to the 

Hearing Officer prior to the opening of the hearing or after 

the hearing opens are referred to the Regional Director 

(see HOG 24 and 33.2). These challenges raise threshold 

issues that are investigated and decided prior to issuing 

the Decision and Order. 

c) Challenges to the status of a labor organization are 

normally processed in the Regional Office in accordance 

with CHM 19. 

(i) Timeliness: If the challenge is filed too late to 

investigate and decide prior to the hearing, the Regional 

Director refers it to the Hearing Officer. The Hearing 

Officer treats such challenges to the status of a labor 

organization as a threshold issue about which evidence is 

taken before proceeding with the remainder of the hearing. 

(ii) Procedures: The Hearing Officer discusses the issues 

and procedures for handling the status challenge with the 

Regional Director prior to opening the hearing. All 

supporting evidence is required to be submitted with the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

17

challenge. If the Regional Director gives the Hearing 

Officer permission to make a recommendation on the 

record regarding the challenge, the Hearing Officer takes 

evidence on and makes his/her recommendation in 

accordance with HOG 35.13 before proceeding with the 

rest of the hearing. If the Regional Director does not give 

permission to the Hearing Officer to make a 

recommendation, the Hearing Officer still takes evidence 

on the status challenge before proceeding with the other 

issues (see HOG 24.3 and 33.3). 

(iii) Decision: Ultimately, in either situation, the Regional 

Director decides the status issue as part of his/her 

Decision and Order, or in an election petition, may exercise 

the option of deferring his/her decision by issuing a 

Direction of Election. Status challenges that are filed after 

the hearing opens are untimely unless the challenging 

party can establish good cause for granting an extension. 

HOG 24.3 provide guidance for considering status 

challenges filed during the hearing. 

(iv) Challenges based on claims made pursuant to section 

7111(f)(1) of the Statute: HOG 24.3, RCL 10B, HOG 46B, 

CHM 19, CHM 20.1.8 and CHM 23.9.3 provide guidance 

on investigating and processing status challenges based 

on claims that a labor organization is subject to corrupt 

influences or influences opposed to democratic principles 

pursuant to section 7111(f) of the Statute. Challenges 

raised pursuant to 7111(f)(1) of the Statute do not appear 

to be subject to any timeliness requirements. See U.S. 

Information Agency, Washington, D.C. and American Federation 

of Government Employees, Local 1812, AFL-CIO, (USIA), 53 

FLRA 999 (1997)U.S. Information Agency, Washington, D.C. 

and American Federation of Government Employees, 

Local 1812, AFL-CIO, (USIA), 53 FLRA 999 (1997) 

NOTE: Regional Directors rule on all cross-petitions, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

18

interventions, and challenges including those received too 

late to process prior to the hearing. Thus, Regional Directors 

(or their designees) are required to be available to respond to 

situations that arise immediately prior to or during the 

hearing. 

17.4 Motions to intervene received too late for the region to 

process prior to the opening of the hearing: In accordance with 

§ 2422.8 of the regulations, requests to intervene must be in writing 

and/or filed and submitted to the Regional Director or the Hearing 

Officer before the hearing opens, unless good cause is shown for 

granting an extension of time to file a request to intervene or crosspetition. 

NOTE: CHM 17.3.1 discusses grounds for granting extensions 

and procedures for processing untimely intervention requests 

under such circumstances. In the event that a request to 

intervene is filed untimely, i.e., after the hearing opens, refer to 

HOG 18.4 for processing guidelines.

17.4.1 Reviewing motions to intervene received too late for the 

region to process prior to the opening of the hearing: Prior to 

opening the record, the Hearing Officer reviews a request to 

intervene to determine whether the request complies with § 2422.8 

of the regulations. For instance, if the petition seeks an election, 

the intervention request must be accompanied by a showing of 

interest or other form of evidence as described in § 2422.8(c) 

unless the intervenor claims to be the incumbent [§ 2422.8(d)]. If 

the petition seeks to clarify or amend a matter relating to 

representation, a party proffers appropriate evidence of interest to 

support its intervention request. See generally, CHM 17. If 

necessary, the Hearing Officer delays the opening of the hearing to 

review the request to intervene. See also HOG 17.4.3 and 17.4.4

for processing procedures and exceptions.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

19

 

17.4.2 Considerations when reviewing the showing of interest 

accompanying requests to intervene or cross-petition in 

election proceedings that are received too late for the region 

to process prior to the opening of the hearing: 

a) A showing of interest is required to support any 

intervention request or cross-petition that is filed 

immediately prior to the opening of the hearing. If no 

evidence is proffered, the intervening party or crosspetitioner cannot participate and the hearing is not delayed 

(CHM 18.8). 

b) Where a request to intervene or cross-petition is based on 

evidence of interest made immediately prior to the opening 

of the hearing, the showing of interest is not examined by 

any other party to the proceeding and is never introduced 

or received into the record. Argument on the adequacy of 

interest is inappropriate and the Regional Director‟s 

eventual ruling on the request is based on the investigation 

of interest made by the Hearing Officer. The parties are 

reminded that adequacy of a showing of interest is an 

administrative matter made by the Regional Director which 

is not subject to collateral attack by the parties [see § 

2422.9(b) of the regulations]. 

c) Where requests to intervene or cross-petition are received 

immediately prior to the opening of a hearing, any 

accompanying showing of interest is checked on the spot 

unless the showing is voluminous and the Hearing Officer 

decides that it would unduly delay the hearing (see CHM 

18.13.6). If it appears sufficient on its face, the Regional 

Director instructs the Hearing Officer to grant the motion to 

intervene, "subject to a subsequent check of the sufficiency 

of interest" (see HOG 17.4.4 guidelines relating to granting 

“conditional intervention”). The check is usually made 

between sessions using the activity/agency list furnished in 

response to the opening letter. The Hearing Officer is 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

20

authorized to announce the Regional Director‟s 

subsequent ruling on the intervention/cross-petition. If the 

hearing record closes before the Hearing Officer has an 

opportunity to check the showing of interest, the Hearing 

Officer [see HOG 34.4(c)] reports the results in the Hearing 

Officer's Report and an amended showing of interest 

report, FLRA Form 52 (see CHM 18.15). 

d) If the Hearing Officer‟s check of the showing of interest 

reflects that the showing is inadequate and the scope and 

size of the unit is not an issue in the proceeding, the 

Hearing Officer refers the request to intervene or crosspetition to the Regional Director. The party attempting to 

intervene or cross-petition is not given additional time to 

obtain sufficient showing of interest. The hearing is not 

delayed and the party requesting status as an intervenor or 

cross-petitioner does not participate in the hearing. 

e) If the size or scope of the unit is an issue at the hearing 

and the decision could affect the intervenor‟s or crosspetitioner‟s request, then the Regional Director permits the 

intervenor or cross-petitioner to “conditionally intervene” 

and participate in the proceedings. See HOG 17.4.4. 

See also HOG 23 for a discussion of cross-petitions filed 

immediately prior to the opening of the hearing. 

17.4.3 Ruling on motions to intervene prior to the opening of the 

hearing: The Hearing Officer does not have the authority to grant 

or deny an intervention request made immediately prior to the 

opening of the hearing. Only the Regional Director grants or 

denies an intervention request. Once the Hearing Officer reviews 

the intervention request or cross-petition, s/he contacts the 

Regional Director for a decision. The Regional Director has three 

options: 1) grant the request; 2) deny the request; and 3) grant 

conditional intervention which allows the party to participate in the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

21

hearing, but reserves the Director‟s ruling for the Decision and 

Order. 

17.4.3.1 Granting a motion to intervene: If the intervention 

request is simple and meets the requirements for intervention, the 

Hearing Officer obtains permission to name the party as an 

intervenor prior to opening the record. If the Regional Director 

grants the intervention request, the Hearing Officer allows the 

intervenor to enter his/her appearance on the record. See HOG 

script 35.5.

17.4.3.2 Referring a motion to intervene to the Regional 

Director: If the motion to intervene is unsupported by appropriate 

evidence, the Regional Director instructs the Hearing Officer to 

refer the motion to the Regional Director for action in accordance 

with § 2422.30 of the regulations. The Hearing Officer 

acknowledges receipt of the request to intervene or cross-petition 

after opening the record and then refers the motion to the Regional 

Director on the record with supporting statements. Absent unusual 

circumstances, the hearing is not postponed and the party 

requesting intervention is not permitted to participate in the hearing. 

(See HOG Script 35.5). 

17.4.4 Conditional intervention: If the intervention request is 

complicated or there is a question of timeliness, the Regional 

Director may consider an intervention request received too late for 

the region to process prior to the opening of the hearing as an 

issue for the hearing. The Regional Director grants a party 

“conditional intervention” only in exceptional circumstances. 

Factors to consider include: 

a) The showing of interest is voluminous, but the intervention 

is timely and otherwise appears valid. 

b) The petition is amended prior to the opening of the hearing 

or at the hearing and the amendment changes the scope of 

the unit. As a result, issues are raised relating to 

identifying parties affected by issues raised by the 

amended petition pursuant to § 2422.6 of the regulations. 

See Utah Army National Guard, U.S. Department of the Army, 

Draper, Utah, an unnumbered Authority Decision denying an 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

22

application for review in Case No. DE-RP-80021, (1999)Utah 

Army National Guard, U.S. Department of the Army, 

Draper, Utah, an unnumbered Authority Decision denying 

an application for review in Case No. DE-RP-80021, 

(1999). See CHM 17.13. 

By allowing conditional intervention in these extraordinary 

circumstances, the hearing is not delayed and the intervening party 

is given an opportunity to participate in the proceedings conditioned 

on the party satisfactorily complying with the requirements for 

intervention or status as an interested party. Ultimately, the 

Regional Director decides the intervenor‟s status in the Decision 

and Order. If the other parties object to handling an intervention 

request in this manner, their objections become part of the record. 

Specific instructions follow: 

17.4.4.1 As part of the opening statement and after ascertaining the 

correct names of the known parties to the proceeding, the Hearing 

Officer calls attention to any prehearing motions to intervene which 

were received too late for the region to process prior to the opening 

of the hearing. The Hearing Officer also calls attention to any 

motions to intervene that have been filed after the hearing opens 

that argue that good cause has been shown for granting an 

extension to intervene (see HOG script 35.5). 

17.4.4.2 If the motion to intervene is based on an existing or 

recently expired agreement or other documentation, a copy of the 

agreement or other documentation is placed into the record at the 

time the motion is made. If the motion is based on evidence of 

interest presented to the Regional Office or the Hearing Officer, the 

fact is noted on the record, but the numerical showing of interest is 

not introduced or received into evidence. Argument on the 

adequacy of the showing of interest is not allowed.

17.4.4.3 The Hearing Officer makes certain that the full and precise 

name of any intervenor or potential intervenor is placed on the 

record and that the record is clear regarding whether the intervenor 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

23

is the local, the parent labor organization or both. Similarly, the full 

name of an agency or activity intervenor is also ascertained. 

Additionally, the Hearing Officer ensures that the intervenor places 

its position on the record and the basis for the intervention.

17.4.4.4 The Hearing Officer asks all other parties for their 

positions. 

17.4.5 Handling conditional motions to intervene on the record: 

17.4.5.1 If the motion to intervene was filed timely and appears 

sufficient or justified under the circumstances discussed in HOG 

17.4.4, then the Hearing Officer states that the Regional Director is 

granting the motion, "subject to a subsequent check of the 

sufficiency of the showing of interest," where necessary, or if 

showing of interest was not the basis for the intervention, “subject 

to the evidence adduced during the hearing.”

17.4.5.2 If the Hearing Officer has any doubt regarding the propriety 

of permitting intervention in any instance, s/he recesses the 

hearing for a time sufficient to enable him/her to resolve the doubt 

by contacting the Regional Director or by other appropriate means. 

The Regional Director grants conditional intervention only in 

exceptional circumstances. If the Regional Director decides to 

allow conditional intervention, the Director instructs the Hearing 

Officer to make it clear, however, that although “conditional 

intervention” is granted, the final decision is being reserved for the 

Regional Director in his/her Decision and Order.

17.5 Prehearing motions to dismiss: Prehearing motions to dismiss 

are ruled on by the Regional Director and are not referred to the 

Hearing Officer. Normally such motions are deferred for ruling until 

such time as the Regional Director issues the Decision and Order 

following the hearing. If the Regional Director grants a motion to 

dismiss a petition in a Decision and Order, the petitioner may file 

an application for review with the Authority. If the Regional Director 

denies a motion to dismiss, the decision is not subject to appeal 

unless it is made part of the Decision and Order. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

24

17.6 Prehearing motions to withdraw: See HOG 19.

17.7 Other prehearing motions: Other motions, such as motions to 

change the location of the hearing, are processed in accordance 

with HOG 17.1.

17.8 Orders: If the notice of hearing was issued without a time or 

location or is amended, an appropriate Order is issued by the 

Regional Director (see Figure C29.7B). See also CHM 59 for 

general guidance in preparing orders. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

25

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

18 Motions made during the hearing: 

18.1 Generally: During the hearing, motions are made to the Hearing 

Officer and may be made orally on the record, unless a written 

submission is otherwise required in this section. Responses may 

also be made orally on the record or in writing, but, absent 

permission of the Hearing Officer, are provided in writing before the 

hearing closes. When appropriate, the Hearing Officer rules on 

motions made at the hearing or referred to the Hearing Officer by 

the Regional Director [see § 2422.19(c)]. (See also HOG 30 that 

provides for automatic exceptions to all adverse rulings.) 

18.2 Procedural requirements: A party seeking to make a motion 

during the hearing adheres to the following specific procedural 

steps: 

a) Motions are generally made orally on the record. A written 

motion, if desired, may be filed with the Hearing Officer; 

b) The reason for the motion, if not self-evident, is given. For 

example, motions to strike certain testimony, dismiss a 

petition, postpone the hearing, etc., are supported with 

specific reasons, whereas a motion to amend the petition 

by the petitioner need not be justified. 

After the motion is made, the party affected by the motion is 

permitted to state its position on the motion. Thereafter: 

a) All motions are ruled on by the Hearing Officer with the 

exception of a motion to dismiss a petition. A ruling is 

stated in terms of a motion being denied or granted; 

b) The basis for the ruling is not explained (see HOG 28.4);

c) A party is not granted a postponement during the hearing 

to appeal an adverse ruling by the Hearing Officer to the 

Regional Director. In view of the automatic exception 

afforded a party to any adverse ruling, the Regional 

Director considers the matter when reviewing the record; 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

d) Parties are limited to a reasonable length of time to argue 

their positions; and 

e) All matters spoken in relation to the motion are made on 

the record. 

18.3 Motions to dismiss made during the hearing: The Hearing 

Officer has no authority to rule on a motion to dismiss a petition. 

Generally, when such a motion is made, the moving party is 

informed that the Hearing Officer has no authority to make a ruling 

and that the motion is referred to the Regional Director for ruling at 

such time as the record is considered by the Regional Director. 

There are limited circumstances where a motion to dismiss 

warrants the immediate consideration of the Regional Director. In 

such cases, the Hearing Officer refers the motion to the Regional 

Director in the following manner: 

a) The Hearing Officer recesses the hearing for the purpose 

of contacting the Regional Director; 

b) The Regional Director is fully apprized of the relevant 

evidence or the actions of the parties bearing upon the 

motion to dismiss, including any objections to the motion; 

c) If the Regional Director intends to grant the motion to 

dismiss the petition, the Hearing Officer goes back on the 

record and states: “the motion to dismiss the petition is 

being referred to the Regional Director for ruling.” 

Normally, no more evidence is taken on any issue. 

d) The Hearing Officer cannot state, on or off the record, that 

the latter intends to grant the motion to dismiss, unless 

specifically authorized by the Regional Director; 

e) The hearing is then adjourned indefinitely; and 

f) If the Regional Director does not intend to rule on the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

motion immediately, the Hearing Officer informs the parties 

of the Director‟s preliminary decision on the record. The 

Hearing Officer then completes the record and refers the 

motion to dismiss the petition to the Regional Director who 

acts upon it when s/he considers the entire record. 

18.4 Motions to intervene made during the hearing: Motions to 

intervene made during the hearing are generally untimely unless 

the intervening party shows good cause for granting the 

intervention [§ 2422.8(b)]. The Hearing Officer asks the party 

requesting intervention for the grounds for the request and the 

reasons for the delay in filing. The Hearing Officer then goes off 

the record and contacts the Regional Director to discuss the 

intervention request. As discussed in HOG 17.4, the Regional 

Director has discretion to give permission to the Hearing Officer to 

grant “conditional intervention” under the limited circumstances 

discussed in HOG 17.4.4 or instruct the Hearing Officer to refer the 

intervention request to the Regional Director for consideration. If 

the Regional Director grants the party “conditional” intervention, the 

Hearing Officer announces the Regional Director‟s decision and 

follows the procedures in HOG 17.4.4.

a) If the Regional Director instructs the Hearing Officer to 

refer the request to him/her for consideration, the Hearing 

Officer goes back on the record and announces that the 

request is being referred to the Regional Director for 

action. The party requesting to intervene is not permitted 

to participate in the hearing and the hearing continues. 

b) If the Regional Director decides that good cause has been 

shown for granting the intervention, the party may be 

permitted to participate in the hearing if it is still open. If 

the record is closed, the record is reopened for the limited 

purpose of allowing the intervenor to supplement the 

record with its position and evidence in support of its 

position. The other parties are permitted to participate 

fully. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

18.5 Motions to participate as amicus curiae: For good cause and 

with the permission of the Regional Director, the Hearing Officer 

may grant a party‟s request to participate in the hearing as an 

amicus curiae. Long Beach Veterans Administration Medical 

Center, Long Beach, California, 7 FLRA 434 (1981). See also § 

2429.9 of the regulations. 

18.6 Motions to sequester witnesses: 

18.6.1 A motion for sequestration is made by a party in order to seek the 

exclusion of potential witnesses from the hearing room. The 

purpose is to ensure that they are not influenced when giving their 

testimony by the testimony of the preceding witness or witnesses. 

The Hearing Officer obtains the positions of all parties on the 

motion for sequestration. 

Motions to sequester witnesses at a representation hearing 

normally are not granted by the Hearing Officer unless credibility 

questions are at issue in objections cases (see HOG 36).

 

18.6.2 The request is made at the start of the hearing so that it applies to 

all witnesses and parties equally. If the request is made during the 

hearing, the Hearing Officer considers reasons for the delay in filing 

the motion and the parties‟ positions when making his/her decision. 

18.6.3 If the Hearing Officer grants a sequestration request, s/he cautions 

witnesses not to discuss their testimony with anyone, or read the 

transcript testimony of other witnesses. The sequestered 

witness(es) then leaves the hearing room until called to testify. 

18.6.4 Irrespective of the Hearing Officer's ruling to grant sequestration, a 

party is normally allowed to have an advisor present in the hearing 

room to assist the representative of record during the hearing, even 

if that advisor later testifies. 

18.7 Motion to amend the petition: 

18.7.1 General: During the course of a hearing, a petitioner may seek to 

amend its petition. This is done by means of a request, or motion 

to amend, and if necessary, a supporting statement. The Hearing 

Officer, after soliciting the positions of the other parties and 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

argument, grants the request unless the Regional Director gives 

approval to deny the request. NOTE: it is very unusual to deny a 

petitioner’s request to amend its petition. 

18.7.2 Considerations on amending petitions: The Hearing Officer 

considers any consequences of an amendment of the petition at 

hearing: 

18.7.2.1 Although the amendment does not have to be explicit, it 

may be necessary for the Hearing Officer to clarify what the 

petitioner seeks and solicit a clearer amendment. See e.g., 

18.7.2.2U.S. Department of the Interior, National Park Service, Washington, DC, 

55 FLRA 311 (1999): A motion to amend the unit may be made only

by the petitioner. If any party, other than the petitioner, makes a 

“motion to amend the unit,” it is regarded as being, at most, a 

statement of position or contention of what the unit should be, and 

no ruling is made on such a “motion.” 

However, if the Hearing Officer believes that the record would be 

better served by clarifying the unit description through the inclusion 

or exclusion of particular classifications, a suggestion to this effect 

is made to the petitioner. Off the record discussion regarding a 

possible amendment of the unit is permitted, but takes place in the 

presence of all parties. The Hearing Officer summarizes the off the 

record discussions on the record (see HOG 11.7). 

18.7.5 Obtaining complete description of amended unit: When a 

motion to amend the unit is made by the petitioner, the entire unit is 

set forth on the record. It is not acceptable for the petitioner to 

state, for example, that it moves to amend the unit by “changing the 

unit only with respect to . . .” or “keeping the inclusions but adding 

the classification of . . . for the classification of . . .,” etc. 

Irrespective of the nature or the extent of the change being made 

by the amendment, whether involving a minor modification of 

terminology, such as changing the wording from “blue collar” to 

“Wage Board,” or enlarging the scope of the unit substantially, the 

entire unit description is stated.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

18.7.6 Ruling on a motion to amend the unit that does not change the 

scope of the unit: A motion to amend the unit, like any other 

motion, is ruled on by the Hearing Officer after the other parties are 

asked whether they have any objections to the motion. 

Irrespective of any objections raised or any contention that the 

motion be denied, the Hearing Officer grants the motion to amend 

the unit since: 

a) a petitioner has complete latitude to seek whatever unit it 

desires; 

b) in allowing the petitioner to amend the unit, the Hearing 

Officer does not, and cannot, pass upon the 

appropriateness or timeliness of the amended unit; and 

c) it is, therefore, left 

s ruling in granting the 

motion to amend the unit will be reviewed, as a matter of 

course, by the Regional Director. 

NOTE: Best practice: use a motion to amend a petition to 

withdraw a position whose eligibility is no longer in dispute 

rather than a stipulation to withdraw the position from the 

case. This is a situation in which the parties “make a deal” rather 

than obtain a solution since neither party seeks a ruling from the 

Regional Director on the position. See CHM 25.13.1. In addition, 

the Authority has previously held that a stipulation concerning the 

resolution of positions in dispute is “deemed a motion to amend the 

petition and is hereby granted.” Pennsylvania Air National Guard, 

13 FLRA 538 (1983). 

18.7.7 Ruling on a motion to amend the unit that changes the scope 

of the unit: A motion to amend the unit, like any other motion, is 

ruled on by the Hearing Officer after the other parties are asked 

whether they have any objections to the motion. Before granting a 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

motion to amend the unit, the Hearing Officer takes the following 

actions (see also HOG 18.7.2):

a) Goes off the record and assesses whether the amendment 

has substantially affected the scope of the unit. Changes 

in terminology only are distinguished from changes 

affecting the scope and content of the unit (see CHM 13.9, 

13.10 and 13.11);

b) Checks the showing of interest to determine if it is sufficient 

to support the proposed amendment. In any instance 

where additional showing of interest is required, it is 

submitted with the amendment. See : 

18.9.1 A motion to strike is designed to have the Regional Director 

disregard a particular response by a witness or testimony given to 

a line of questioning. The basis in support of the motion to strike 

may be that the answer was unresponsive to the question or that 

the witness answered the question notwithstanding the fact that the 

objection to the question was sustained by the Hearing Officer. In 

ruling on the motion, the Hearing Officer uses the tests for 

relevancy and materiality. However, note that sustaining the motion 

results only in the disputed testimony being disregarded by the 

Regional Director in r

s ruling is reversed by the Regional Director. Thus, 

granting such a motion does not involve a physical expunging of 

the testimony from the record. 

18.9.2 A motion to expunge, if sustained, results in the total eradication of 

the particular testimony or other matter stated, and, thus, is denied 

in all but the most extreme instances.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

18.10 Motion for continuance made during the hearing: A party may 

request a continuance at any time during the hearing. The 

authority to grant such requests rests with the Hearing Officer. The 

Hearing Officer approves a motion for continuance upon a showing 

of good cause. When ruling on a continuance request, the Hearing 

Officer reconciles two policies: the importance of promptly 

processing representation cases under the Statute and the 

obligation to obtain a complete record (see also HOG 17.2). 

Absent unusual circumstances, before granting the motion for 

continuance, the Hearing Officer proceeds on those aspects where 

progress is possible. Such efforts to complete as much of the 

record as possible before adjourning the hearing may result in the 

motion being withdrawn. 

18.10.1 Grounds for continuance: 

18.10.1.1 To bring in additional evidence: If the ground given for a 

continuance is to bring in additional, relevant information, the 

Hearing Officer explores every alternative avenue by which the 

information may be elicited promptly (e.g., stipulation, adjournment 

to a more convenient place, etc.). If necessary, and only in rare 

situations, an adjournment may be avoided by arranging for the 

close of the hearing subject to the later introduction of an exhibit 

(see HOG 15.13). 

18.10.1.2 Hearing Officer adjourns hearing when evidence 

reflects a change in issues and/or a party(ies’) status: When 

evidence identifies additional issues that were not contemplated, 

the Hearing Officer, on his/her own motion, continues the hearing 

to review the record and the issues, and to notify any additional 

parties. See National Park Service, 55 FLRA 466 (1999) where the 

Authority found that when the Regional Director decided the issues 

involved successorship, the status of the former incumbents 

changed from that of intervenor to incumbent. Therefore, the 

Authority found that these parties should have been recontacted to 

confirm their participation in the case . 

Before adjourning a hearing when new issues arise to allow the 

parties to gather relevant evidence: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

a. the record is completed on any issues that were outlined in 

the Notice of Hearing, and 

b. the Hearing Officer explains to the parties what information 

is necessary for introduction upon the resumption of the 

hearing. 

When the hearing resumes, the Hearing Officer concentrates on 

the additional information, but does not exclude other relevant 

evidence that may be offered. 

18.10.2 Hearing rescheduled: Continuances may be to a date certain or 

may be indefinite. In the latter event, the hearing is rescheduled by 

an Order from the Regional Director to the parties. The Order is 

made part of the record on the resumption of the hearing. If the 

basis for the hearing is resolved or becomes moot, the hearing may 

be closed by Order of the Hearing Officer (see CHM 59). 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

19 Motions to withdraw: A petitioner(s) may request to withdraw a 

petition at any time during the processing of the case. The Hearing 

Officer may not rule on requests to withdraw a petition(s). 

Intervenors or interested parties may also request to withdraw from 

representation proceedings at any time. The Hearing Officer may 

not rule on requests from intervenors to withdraw from 

representation proceedings. 

 

19.1 Prehearing motions to withdraw: 

19.1.1 Petitioner requests to withdraw: 

a) If a request to withdraw is received immediately prior to the 

opening of the hearing, the Hearing Officer asks the 

petitioner to put the request in writing. 

b) The Hearing Officer calls the Regional Director and 

advises him/her about the request to withdraw. 

c) Once the Regional Director advises the Hearing Officer 

that s/he intends to approve the request, the Hearing 

Officer: 

(i) notifies the parties, 

(ii) advises the petitioner of the regulations pertaining 

to the effects of withdrawal after a notice of hearing 

issues [see § 2422.14(b) and HOG 19.4], 

(iii) cancels the court reporter, 

(iv) does not open the record, and 

(v) forwards the withdrawal request to the Regional 

Director. 

The approval is in the form of a Withdrawal of the Notice of Hearing 

and Approval of Request for Withdrawal of Petition (see FLRA 

Form 49) with language added that the approval request is subject 

to the provisions in § 2422.14(b) of the regulations. 

19.1.2 Intervenor requests to withdraw: If an intervenor requests to 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

withdraw from the case immediately prior to the opening of the 

hearing, the Hearing Officer: 

a) asks the intervenor to put the request in writing, 

b) contacts the Regional Director. 

Once the Regional Director advises the Hearing Officer that s/he 

will approve the request, the Hearing Officer notifies the parties and 

if necessary, reassesses the need for a hearing. Thereafter, the 

Regional Director approves the withdrawal request in writing.

19.2 Motions to withdraw made during the hearing: 

19.2.1 Petitioner requests to withdraw: If the request to withdraw is 

received after the hearing has opened, the Petitioner is required to 

put the request on the record. The hearing is recessed while the 

Hearing Officer contacts the Regional Director to seek approval of 

the withdrawal. 

Once the Regional Director states that s/he will approve the 

withdrawal request, the Hearing Officer: 

a) goes back on the record, 

b) notifies the parties of the approval, 

c) continues the hearing indefinitely, and 

d) forwards the withdrawal request to the Director. 

Thereafter, the Regional Director issues an Order Closing the 

Hearing and Approving the Request to Withdraw (see CHM 59 for 

guidance in preparing Orders). The same provisions concerning 

withdrawal with prejudice that are outlined in § 2422.14(b) apply to 

requests to withdraw during the hearing. 

19.2.2 Intervenor requests to withdraw: If the request to withdraw is 

received after the hearing has opened, the intervenor is required to 

put the request on the record. The hearing is recessed while the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

Hearing Officer contacts the Regional Director for approval of the 

withdrawal request. Once the Director states that s/he will approve 

the withdrawal request, the Hearing Officer goes back on the 

record, notifies the parties of the approval and if necessary, 

reassesses the need for continuing the hearing. Thereafter, the 

Regional Director approves the withdrawal request in writing. 

19.3 Motions to withdraw made post-hearing: A motion to withdraw 

that is received after a hearing is closed is processed similarly to 

one filed after the notice of hearing issues. The Regional Director 

issues an Order Withdrawing the Notice of Hearing and Approval of 

Request to Withdraw Petition subject the provisions in § 2422.14(b) 

of the regulations. See HOG 19.4. 

19.4 Withdrawal with prejudice: Section 2422.14(b) of the regulations 

provides that a petitioner who submits a withdrawal request for a 

petition seeking an election that is received by the Regional 

Director after the notice of hearing issues or after approval of an 

election agreement, whichever comes first, will be barred from filing 

another petition seeking an election for the same unit or any 

subdivision of the unit for six (6) months from the date of the 

approval of the withdrawal by the Regional Director. This 

statement is added to any Order approving a request to withdraw 

that is submitted within three days prior to the opening of the 

hearing or anytime after the hearing opens. 

This section does not apply to a request to withdraw by an 

intervenor unless the intervenor is an incumbent that disclaims any 

representational interest in a unit which is subject of an election 

petition (see RCL 12, HOG 48 and CHM 11.10).
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

20 Post-hearing motions: Motions filed after the close of the 

hearing, but prior to the issuance of the Decision and Order, are 

submitted to the Regional Director. The party filing the motion is 

required to state succinctly the order or relief sought and the 

reasons for the motion. A copy of each motion is served on all 

other parties [see § 2422.19(d) and HOG 16.2]. Any response to a 

post-hearing motion is filed with the Regional Director within five (5) 

days after service of the motion. The Regional Director rules on 

post-hearing motions, either by Order or as part of the Decision 

and Order. See also CHM 31.

21 Motions to correct transcript: The purpose of correcting the 

transcript is to correct mistakes made by the reporter in taking or 

transcribing the record and not to afford the parties an opportunity 

to add new material to the record or to correct errors of omission or 

commission made by any of the parties during the hearing. 

Motions to correct the transcript are filed with the Regional Director. 

Copies of motions to correct the transcript are served on each of 

the other parties and proof of such service furnished to the 

Regional Office. The Regional Director rules on motions to correct 

the transcript, either by Order or as part of the Decision and Order. 

See also CHM 31.6.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

PROCEDURAL MATTERS 

HOG 22 through 31

22 Disclaimers: A disclaimer of interest may be filed by an incumbent 

exclusive representative to disclaim any representational interest in 

a unit that is the subject of a petition pending before the Regional 

Director. Any disclaimer is in writing and states clearly that the 

recognized or certified exclusive representative no longer wishes to 

represent the employees in the unit for which it is the exclusive 

representative. To be effective, a disclaimer is made in good faith, 

clear and unequivocal, and leaves no doubt that a matter relating to 

the incumbent‟s representation does not exist with respect to the 

bargaining unit. Department of Defense, Department of the Navy, 

Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 14 

FLRA 76 (1984). If a labor organization that is a party to a 

representation hearing files a disclaimer during the hearing, the 

Hearing Officer recesses the hearing and calls the Regional 

Director for guidance (see § 2422.14(c), CHM 5.9, 20.1.7, and 

20.9 for more information on disclaimers). 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

23 Filing a cross-petition: Section 2422.8(a) of the regulations 

defines a cross-petition as a petition which involves any employees 

in an unit covered by a pending representation petition. Crosspetitions are filed in accordance with § 2422.8 on a form prescribed 

by the Authority. Cross-petitions, accompanied by any necessary 

supporting evidence or showing of interest, are filed and/or 

submitted to the Regional Director or the Hearing Officer before the 

hearing opens, unless good cause is shown for granting an 

extension. 

23.1 Filing requirements: A cross-petition is filed on a FLRA Form 21 

and in accordance with the requirements set forth in CHM 4 

through 10, concerning procedures for filing. A cross-petition is 

docketed as a new case and is subject to the same standards for 

review and sufficiency as any petition. In all respects, a crosspetition is treated as any other petition and is processed in the 

same manner. However, a cross-petition is distinguished from 

other petitions because it concerns employees in a unit covered by 

a pending representation petition and is filed according to the 

timeliness requirements for filing requests to intervene (see CHM 

17.6). 

23.2 Processing cross-petitions received too late for the region to 

process prior to the opening of the hearing: The Regional 

Director may refer a cross-petition to the Hearing Officer that has 

been received too late for the region to process prior to the opening 

of the hearing. A cross-petition may also be filed directly with the 

Hearing Officer before the hearing opens. 

23.2.1 Handling cross-petitions received too late for the region to 

process prior to the opening of the hearing: 

a) Immediately upon receipt of the cross-petition, the Hearing 

Officer contacts the Regional Director, informs the latter of 

the filing, and procures a docket number. Copies of the 

newly filed petition are forwarded via fax to the Regional 

Director as soon as possible. The Hearing Officer inserts 

as the date of filing, the date of receipt of the petition (see 

CHM 63 for docketing procedures). 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

b) The Hearing Officer is responsible for reviewing the crosspetition to ensure compliance with filing requirements. A 

cross-petition seeking an election must be accompanied by 

an appropriate showing of interest which is checked for 

prima facie adequacy (see HOG 17.4.2 and CHM 18.8). 

c) If the cross-petition appears to meet the filing 

requirements, the Hearing Officer obtains approval from 

the Regional Director to name the party as a crosspetitioner and consolidate the petitions prior to opening the 

record (see CHM 17). Once on the record, the Hearing 

Officer then proceeds in accordance with HOG 23.2.2

through 23.2.4 and script 35.5(B)(2). If the cross-petition 

request appears more complicated, the merits of the crosspetition may be considered as an issue in the hearing. 

Under exceptional circumstances, the Regional Director 

may grant the petitioner “conditional” approval to 

participate in the hearing. The considerations for granting 

a cross-petitioner permission to participate in the hearing 

on a “conditional basis” are the same as the factors 

considered in intervention requests. See HOG 17.4.4.

That way the hearing is not delayed and the crosspetitioner is given an opportunity to participate in the 

proceedings conditioned on the party satisfactorily 

complying with the filing requirements for cross-petitions. 

The Regional Director ultimately decides the issue in the 

Decision and Order. 

d) If the Hearing Officer believes that it is appropriate to 

conduct the hearing on the merits of the cross-petition 

simultaneously with the hearing on the pending petition(s), 

s/he obtains the parties‟ positions on consolidating the 

petitions and the need for a continuance, if any [see HOG 

script 35.5(B)(1)].

e) If the other parties object to handling a cross-petition in this 

manner, the Hearing Officer includes the party‟s objections 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

in the record. 

23.2.2 Ruling on cross-petitions that are received too late for the 

region to process prior to the opening of the hearing: Upon 

resuming the hearing, if the Regional Director decides to 

consolidate the cross-petition with the pending petition(s), the 

Hearing Officer: 

a) announces the Regional Director‟s decision. 

b) introduces the new petition into the record as an Authority 

exhibit. 

c) If the hearing is held in the Regional Office, the Hearing 

Officer prepares and introduces Regional Director's 

Amended Notice of Hearing and Order Consolidating 

Cases into the record as Authority exhibits. 

If the hearing is held outside of the Regional Office, the Hearing 

Officer states on the record the Regional Director's rulings and 

reserves Authority exhibit numbers for later introduction of the 

Amended Notice of Hearing and Order. Once the petitions are 

consolidated for hearing, each petitioner becomes a crosspetitioner. 

23.2.3 Evidence of interest: If the cross-petition is based on an existing 

or recently expired agreement or other document, a copy of the 

agreement or document is placed into the record at the time the 

motion is made. If the cross-petition is based on evidence of 

interest presented to the Regional Office or presented to the 

Hearing Officer, the fact is noted on the record, but any showing of 

interest is not introduced or received into evidence. Argument on 

the adequacy of the showing of interest is not allowed (see HOG 

17.4.2 for a detailed discussion of handling showing of interest at a 

hearing). 

23.2.4 Ensuring the record is clear: The Hearing Officer makes certain 

that:

a) the full and precise name of any cross-petitioner is placed 

on the record. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

b) the record is clear regarding whether the cross-petitioner is 

the local, the parent labor organization or both. 

c) the full name of an agency or activity cross-petitioner are 

also ascertained. 

d) if there is any question regarding the appropriateness of 

consolidating the cross-petition with the original petition, 

the parties are given the opportunity to state their positions 

on the record. 

The issue of the cross-petition becomes an issue in the hearing 

that is decided by the Regional Director in the Decision and Order. 

23.3 Cross-petitions filed after the hearing opens: If a cross-petition 

is filed after the hearing opens, the Hearing Officer: 

a) asks the party filing the cross-petition to explain why the 

petition should be accepted as a timely filed cross-petition, 

b) obtains the other parties‟ positions, and 

c) then goes off the record to contact the Regional Director. 

The cross-petition is usually referred to the Regional 

Director for action (HOG script 35.5). 

Unlike intervention requests, cross-petitions are not subject to 

immediate dismissal if they are otherwise filed timely (see CHM 

17.6.2). The factors for determining whether a petitioner has shown 

good cause for granting an extension for filing a cross-petition are 

the same as those for considering intervention requests (see CHM 

17.3.1) with the exception of petitions filed pursuant to 5 U.S.C. 

7111(f)(1). See HOG 23.5.

a) Like intervention requests, if the Regional Director decides 

that the petitioner has shown good cause for establishing 

that its cross-petition is timely, the cross-petitioner is 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

permitted to participate in the hearing on a “conditional” 

basis [HOG 17.4, 17.4.4 and 23.2 (for docketing and 

processing procedures)]. The Hearing Officer takes 

evidence on the timeliness of the cross-petition during the 

hearing and the Regional Director considers the merits of 

the cross-petitioner‟s argument that good cause has been 

shown for granting an extension in his/her Decision and 

Order. 

b) If the Regional Director decides that the petitioner has not 

established good cause for granting the extension, the 

petition is forwarded to the region for processing as a 

separate petition (CHM 17.6.3). 

23.4 If the Regional Director does not permit participation by the 

cross-petitioner: If the Regional Director decides not to 

consolidate the petitions or allow conditional participation, the 

Hearing Officer states on the record that a cross-petition was filed 

and that the cross-petition is being referred to the Regional Director 

for processing.

23.5 Cross-petitions filed immediately prior to the opening of the 

hearing or after the hearing opens that challenge the status of 

a petitioning or intervening labor organization on the basis 

that it is subject to corrupt or anti-democratic influences 

pursuant to 5 U.S.C. 7111(f)(1): These cross-petitions do not 

appear to be subject to the timeliness provisions of the regulations 

and raise threshold issues that are considered prior to taking 

evidence on the remaining issues at a hearing. If the cross-petition 

is filed immediately prior to the opening of the hearing or during the 

hearing, the Hearing Officer follows the outline in CHM 23.9.3.

The Hearing Officer ensures the moving party has supported the 

challenge or petition by asking the same questions on the record 

that would have been asked in an Order to Show Cause (CHM 

23.9.3). Ultimately, the Regional Director decides these issues and 

the issues defined in the Notice of Hearing in one Decision and 

Order. See also HOG 24.3 for a discussion of challenges to the 

status of a labor organization made at a hearing. See also RCL 12 

for substantive issues and HOG 48 for hearing questions. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

24 Challenges to the validity of the showing of interest and 

challenges to the status of a labor organization: 

24.1 When to file: The regulations provide at §§ 2422.10 and 2422.11 

that challenges to the validity of the showing of interest (i.e., 

procurement of the evidence of interest by fraud, forgery, 

supervisory involvement in the collection of the showing, etc.), and 

challenges to the status of a labor organization [i.e., compliance 

with 5 U.S.C. 7103(a)(4) or claims made pursuant to 5 U.S.C. 

7111(f)(1)], respectively, may be submitted to the Regional Director 

or to the Hearing Officer before the hearing opens, unless good 

cause is shown for granting an extension. If no hearing is held, 

challenges to the validity of a showing of interest or the status of a 

labor organization should be filed prior to action being taken 

pursuant to § 2422.30. (Exception: a petition or challenge claiming 

the petitioning labor organization, intervenor or incumbent is 

subject to corrupt or undemocratic principles may be filed at any 

time.) 

HOG 24 concerns processing challenges to the validity of the 

showing of interest and challenges to the status of a labor 

organization that are received too late for the region to process 

prior to the opening of the hearing. 

 

24.2 Challenges to the validity of the showing of interest: Any 

challenges to the validity of the showing of interest submitted to the 

Hearing Officer prior to the opening of the hearing or after the 

hearing opens, must be accompanied by all supporting evidence. 

The Hearing Officer forwards the challenge and supporting 

evidence to the Regional Director as soon as possible. Evidence 

related to these challenges is not introduced or litigated at the 

hearing. A challenge to the validity of aa showing of interest is a 

threshold issue that is investigated and decided before the 

Regional Director issues his/her Decision and Order on the hearing 

matters. The hearing is not delayed by the filing of such challenges. 

See HOG 33.2 and CHM 18.19.4 and 18.19.5 for processing 

procedures. 

24.3 Challenges to the status of a labor organization: 

24.3.1 Any challenges submitted to the Hearing Officer prior to the 

opening of the hearing must be accompanied by all supporting 

evidence. Challenges to the status of a labor organization are 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

treated as a threshold issue that are considered before proceeding

with the hearing. If the challenge is filed too late to investigate and 

decide prior to the opening of the hearing, the Regional Director 

refers the challenge to the Hearing Officer. Status challenges may 

also be filed directly with the Hearing Officer prior to the opening of 

the hearing. The Hearing Officer treats challenges to the status of a 

labor organization as a threshold issue to consider before 

proceeding with the remainder of the hearing. 

After a status challenge is referred to the Hearing Officer, s/he 

discusses the issues and procedures for handling the status 

challenge with the Regional Director prior to opening the hearing. 

The Hearing Officer takes evidence on the status challenge before 

proceeding with the other issues (see HOG 23.5 for specific 

procedures for handling and HOG 33.3). The Hearing Officer does 

not generally make a recommendation on the record regarding a 

status challenge. The Regional Director decides the status issue 

as part of his/her Decision and Order. If, however, the Regional 

Director finds merit in a status challenge, the Director does not 

normally rule on the remaining issues (CHM 53). 

24.3.2 Status challenges that are filed after the hearing opens are:

24.3.2.1 Untimely if they challenge the labor organization on the 

basis of 5 U.S.C. 7103(a)(4) unless good cause is shown for 

granting an extension. All supporting evidence is required to be 

submitted with the challenge or the challenge is not considered. To 

consider the challenge, the challenger must show that good cause 

exists for being granted an extension. If the challenge alleges that 

the labor organization does not comply with 5 U.S.C. 7103(a)(4), 

the challenging party must support the challenge with evidence as 

outlined in RCL 10A and HOG 46A. 

24.3.2.2 Timely if the challenge raises claims pursuant to 5 U.S.C. 

7111(f)(1). The challenging party must support the challenge with 

evidence as outlined in RCL 10B and HOG 46B. The Hearing 

Officer follows the procedures set forth in HOG 23.4 as 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

summarized below.

The factors for deciding whether the challenging party has shown 

good cause for being granted an extension to file the challenge are 

contained in CHM 23.9.3. The procedures for processing untimely 

filed status challenges are as follows: 

a) the Hearing Officer asks the challenger to state the 

grounds for the status challenge and the reasons for the 

delay in filing, 

b) the Hearing Officer contacts the Regional Director (or 

acting RD) to discuss the reasons for the party‟s delay in 

filing, 

c) the Hearing Officer asks the moving party to respond to 

questions outlined in CHM 23.9.3.2 that would have 

otherwise been issued as part of an Order to Show Cause. 

24.3.3 The Regional Director ultimately decides the status issue as part of 

his/her Decision and Order. If it does not appear that the party has 

not shown good cause for extending the time limitations, the 

Regional Director instructs the Hearing Officer to refer the 

challenge to the Regional Director for action. 

See CHM 19 and CHM 23.9.3 for more information about 

processing status challenges, RCL 10 for substantive information 

and HOG 33.3 and 46 for handling such challenges at the hearing. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

25 Intervening circumstances which can change scope of 

hearing, status of the parties or the issues: Intervening 

circumstances may occur either prior to or during the hearing which 

can change the scope of the hearing (e.g., a petition presents 

appropriate unit issues and the parties also raise eligibility issues; a 

cross-petition is filed which raises new contract bar issues). These 

issues arise in the form of motions, amendments of the petition, 

requests to intervene, cross-petitions or evolve as the evidence is 

secured. 

Whether these matters arise before the hearing or during the 

hearing, the Hearing Officer is responsible for ensuring that: 

a) these matters are addressed, 

b) issues are identified, 

c) parties that are affected by issues raised are notified 

properly, and 

c) the hearing is structured appropriately. 

This includes a review of any relevant sections of this Guide (e.g., 

HOG 18.7.2, 18.7.5, 23 and 33.9). See e.g., U.S. Department of 

the Interior, National Park Service, 55 FLRA 466 (1999) where the 

Authority found that the Regional Director committed prejudicial 

error when, during the course of the hearing, he found that the 

employees from each of the affected units in a reorganization 

constituted a separate appropriate unit, but did not properly notify 

the former incumbents of their rights with respect to the 

successorship issue. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

26 Stipulations: A stipulation is an important evidentiary device by 

which the parties agree upon a particular fact or set of facts which 

may be accepted by the Regional Director as evidence without the 

necessity for extensive development of the record through 

witnesses or exhibits. Stipulations serve to narrow the issues and 

shorten the record. Stipulations may be oral or in writing. 

For a discussion of stipulations in lieu of hearings see HOG 9. 

26.1 Requirements. The Authority considers a stipulation as evidence 

when: 

a) All parties join in the stipulation; 

b) It includes a statement of facts in support of an issue which 

is a subject of the hearing; 

c) The stipulation is expressly received in evidence by the 

Hearing Officer like any other offer of evidence. See HOG 

26.4.

The parties are not required to agree on the outcome of the issue, 

i.e., agree that the unit is appropriate, a position is confidential, 

etc., just secure an agreement on the facts. The parties have 

opportunity to argue their position on the issue in their briefs. 

26.2 Preparing a stipulation: A stipulation may be proposed by any 

party or by the Hearing Officer regarding any matter in issue. The 

discussion between the Hearing Officer and the parties in 

formulating the content of the stipulation are not material to the 

record and therefore, in most instances, such discussions are 

conducted off the record. 

The Hearing Officer takes an active role in the discussions and 

offers suggested language to reflect as clearly and fully as possible 

the intent of the parties. The Hearing Officer apprizes the parties, 

where appropriate, of applicable policies and decisions of the 

Authority. When the language of the stipulation is agreed upon by 

all parties, the Hearing Officer is permitted to draft it and read it 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

back for their concurrence as to its accuracy. The Hearing Officer 

goes back on the record for the purpose of receiving the stipulation 

in evidence. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

26.3 Receiving stipulation in evidence: In receiving the stipulation in 

evidence, the Hearing Officer states on the record as follows: 

ON THE BASIS OF AN OFF-THE-RECORD DISCUSSION, 

THE FOLLOWING STIPULATION IS PROPOSED: 

IT IS STIPULATED BY THE PARTIES THAT (read entire 

stipulation unless it is entered in writing as a joint exhibit) . . . . 

IS IT SO STIPULATED BY THE ACTIVITY? 

BY THE PETITIONER? 

BY THE INTERVENOR? 

THE STIPULATION IS RECEIVED. 

Each party, in responding to the question put by the Hearing 

Officer, states its agreement aloud. If a party responds by nodding 

in assent, the Hearing Officer requests that the response be stated 

for the record. 

26.4 Content of stipulations: A stipulation which states only a 

conclusion without a supporting foundation of fact is not acceptable 

and may not be received in evidence (see HOG script 35.9 for a 

sample stipulation). 

An example of a stipulation of facts which the parties submitted to 

the Assistant Secretary for Labor-Management Services and which 

was later transferred to the Authority for decision is attached to 

USA DARCOM Materiel Readiness Support Activity (MRSA), 

Lexington, Kentucky, 1 FLRA 430 (1979). An example of a case 

involving an insufficient stipulation of facts which the Authority 

remanded for more evidence is Department of Justice, 

Washington, DC, 50 FLRA 439, at 442 (1995). 

26.5 Stipulations obviating the need to continue the hearing: If the 

parties are willing to enter into a stipulation that would eliminate the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

need to continue the hearing, the Hearing Officer recesses the 

hearing to allow the parties to draft the stipulation. 

For example: the parties are willing to stipulate regarding unit 

appropriateness and agree to enter into an election agreement 

(HOG 31.3). The Hearing Officer goes off the record to draft the 

stipulation and obtain an election agreement. Once the Regional 

Director signs the agreement, the hearing is resumed for the limited 

purpose of the Hearing Officer stating on the record that the parties 

have entered into an Election Agreement. Thereafter, the hearing is 

adjourned indefinitely. A copy of the agreement for election is not

introduced in evidence. If the Regional Director does not approve 

the stipulation or the Election Agreement, the Hearing Officer 

resumes the hearing. 

26.6 Special circumstances that may arise during a hearing:

26.6.1 Attempt to withdraw from a stipulation already received in 

evidence: 

A Hearing Officer may properly refuse to allow a party to amend or 

withdraw from a stipulation once the parties have agreed to it, and 

it has been received into evidence. In such situations, the Hearing 

Officer allows the party(ies) wishing to withdraw from or amend the 

stipulation to proffer documents and testimony to support their 

revised position. Environmental Protection Agency, Region VIII, 

Denver, Colorado, 15 FLRA 184 (1984). 

26.6.2 Stipulations involving determinative challenged ballots: 

During a hearing involving determinative challenged ballots, the 

parties may express a willingness to enter into a stipulation(s) 

regarding the bargaining unit eligibility of certain employees who 

have cast determinative challenged ballots. The Hearing Officer 

recesses the hearing and contacts the Regional Director to discuss 

potential stipulations and seek permission to entertain them. 

Acceptance of the stipulation is a discretionary matter with the 

Regional Director. Veterans Administration Medical Center, 

Fayetteville, North Carolina, 8 FLRA 651 (1982). See also CHM 

47.18 for post tally party resolution of determinative challenged 

ballots. When the parties are unable to resolve any or all of their 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

challenges pursuant to CHM 47.18, the Regional Director 

investigates and decides proceeds determinative challenged 

ballots pursuant to CHM 49. The parties cannot withdraw 

challenges at this point; the Regional Director decides all 

remaining determinative challenged ballots. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

27 Subpoenas: 

27.1 General: Section 2429.7 of the regulations provides that Regional 

Directors may issue subpoenas requiring the attendance and 

testimony of witnesses and the production of documentary or other 

evidence. However, no subpoena shall be issued which requires 

disclosure of intra-management guidance, advice, counsel, or 

training within an agency or between an agency and the Office of 

Personnel Management. 

A subpoena (FLRA Form 62) directs a witness to appear at a 

specified time and place to give oral testimony. A subpoena duces 

tecum (FLRA Form 61) requires a witness to appear and bring 

certain specified documents and to give oral testimony. 

See CHM 23.5.3 for a discussion of investigatory subpoenas. 

HOG 27 concerns subpoenas issued in preparation for a hearing. 

27.2 Application for subpoena: Where the parties are in agreement 

that the appearance of a witness or the production of documents at 

the hearing is necessary, and the witness agrees to appear, no 

subpoena is necessary. See § 2429.7(b). 

When necessary, any subpoena requested by any person, as 

defined by 5 U.S.C. 7103(a)(1), shall be in writing and filed with the 

Regional Director, not less than ten (10) days prior to the opening 

of the hearing. Requests for subpoenas made less than 10 days 

prior to the opening of the hearing are granted on sufficient 

explanation of why the request was not timely filed [§ 2429.7(c)]. 

The Regional Director or the Hearing Officer furnishes the 

requester the subpoenas sought, provided the request is timely 

made. Requests for subpoenas may be made ex parte. 

27.3 Preparation of subpoena: Completion of the specific information 

in the subpoena and service of the subpoena are the responsibility 

of the party on behalf the subpoena was issued. See § 2429.7(d) 

for procedures for serving a subpoena. 

27.4 Issuance and control of subpoenas: A copy of any subpoenas 

issued and served by the Regional Director or the Hearing Officer 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

is retained in the case file.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

27.5 Issuance of subpoena during the hearing: If it becomes 

necessary during the hearing for the Hearing Officer to issue a 

subpoena on his/her own motion or that of any party, the Hearing 

Officer recesses the hearing in order to prepare the subpoena. 

The subpoena form is either typed or handwritten. Service 

of subpoena: Service of a subpoena is the responsibility of the 

requesting party. A subpoena is served by any person who is at 

least 18 years old and who is not a party to the proceeding. The 

person who served the subpoena certifies that he or she did so: 

a) By delivering it to the witness in person, 

b) By registered or certified mail, or 

c) By delivering the subpoena to a responsible person 

(named in the document certifying the delivery) at the 

residence or place of business (as appropriate) of the 

person for whom the subpoena was intended. The 

subpoena shows on its face the name and address of the 

party on whose behalf the subpoena was issued. (see § 

2429.7 of the regulations). 

A subpoena is served in sufficient time to enable the witness to 

make necessary arrangements and to allow the witness or a party, 

five (5) days after the date of service to petition to revoke the 

subpoena pursuant to § 2429.7(e) of the regulations. 

27.7 Witness fees: See HOG 6 for information on witness fees and 

reimbursement procedures. 

27.8 Petition to revoke subpoena: 

27.8.1 Filing: Any person served with a subpoena who does not intend to 

comply, is required to, within five (5) days after the date of service 

of the subpoena, petition in writing to revoke the subpoena. When 

a petition to revoke is made prior to hearing, the petition and a 

written statement of service is filed with the Regional Director for 

ruling. A petition to revoke a subpoena filed during the hearing 

shall be accompanied by a written statement of service and shall 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

be filed with the Hearing Officer. § 2429.7(e)(1). 

27.8.2 Service: A copy of any petition to revoke a subpoena shall be 

served on the party on whose behalf the subpoena was issued. 

The Regional Director or the Hearing Officer, as a matter of course, 

serves a copy of the petition to revoke the subpoena on the party 

on whose behalf the subpoena was issued, but are not deemed to 

assume responsibility for such service. See § 2429.7(e) of the 

regulations for further guidance. 

27.8.3 Ruling: The Regional Director or Hearing Officer or any other 

employee designated by the Authority, as appropriate, shall revoke 

the subpoena if the person or evidence, the production of which is 

required, is not material and relevant to the matters under 

investigation or in question in the proceedings, or the subpoena 

does not describe with sufficient particularity the evidence the 

production of which is required, or if for any other reason sufficient 

in law the subpoena is invalid. The Regional Director, Hearing 

Officer, or any other employee of the Authority designated by the 

Authority, as appropriate, shall state the procedural or other ground 

for the ruling on the petition to revoke. The petition to revoke, any 

answer thereto, and any ruling thereon shall not become part of the 

official record except upon the request of the party aggrieved by 

the ruling. § 2429.7(e)(2). 

27.9 Enforcement of subpoena: Pursuant to § 2429.7(f) of the 

regulations, when any person fails to comply with a subpoena, the 

Solicitor of the Authority, upon request of the party on whose behalf 

the subpoena was issued, shall institute proceedings on behalf of 

such party in the appropriate district court for enforcement thereof, 

unless to do so would be inconsistent with law and the policies of 

the Statute. See § 2429.7(f) of the Statute and Litigation Manual, 

Part 2, Chapter J. 

27.10 Delays for enforcement: If the Hearing Officer is faced with a 

request for adjournment so that a subpoena may be served or to 

enforce a subpoena not complied with, s/he reconciles the 

objective of resolving representation questions quickly with the 

objective of obtaining a full and complete record upon which the 

Regional Director can make a reasoned decision. The following 

guidance is provided: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

a) The Hearing Officer asks the party seeking the delay what 

the testimony of the witness would add, whether it is 

necessary, and whether there are any satisfactory 

substitutes. 

b) The Hearing Officer obtains the other party‟s(ies‟) 

position(s) and reviews the record to determine whether it 

contains all relevant facts and/or is otherwise complete. 

c) The Hearing Officer consults with the Regional Director. 

d) If, upon consideration, the Hearing Officer concludes that 

the testimony sought is relevant and necessary, s/he 

adjourns the hearing. 

e) If, upon consideration, the Hearing Officer concludes that 

the testimony sought is not relevant and necessary, s/he 

denies the request for the delay. 

 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

28 Evidentiary and procedural objections:

28.1 General: In the hearing process, the Hearing Officer is required to 

make rulings on objections involving a wide range of evidentiary 

and procedural matters. 

28.2 Stating basis for objection: Statements of reasons in support of 

objections are specific and concise. The Hearing Officer does not 

infer or assume the ground upon which the party may be relying in 

raising the objection. 

28.3 Arguing the objection: The parties generally are permitted to 

argue briefly to support their objection. However, the Hearing 

Officer does not permit the parties to engage in extended debate. 

In most instances, the issue that the Hearing Officer eventually 

rules on is clear by the way the particular question is framed and 

the basis offered in support of the objection. 

28.4 Stating the ruling: 

s statement is limited to, “Objection sustained” or 

“Objection overruled,” depending on whether or not the objection 

has merit. The Hearing Officer does not explain or volunteer the 

basis of the ruling. It is the ruling itself which the Regional Director 

reviews in determining whether the ruling was proper. The right 

ruling, for the wrong reason, remains a right ruling. If a party 

requests the reason for the ruling, the Hearing Officer refuses to do 

so and points out that automatic exceptions are allowed to all 

adverse rulings. 

28.5 Interjection by Hearing Officer: The Hearing Officer has an 

obligation to control the admissibility of evidence and need not wait 

for the parties to object before ruling on the admissibility of certain 

testimony or other evidence. For example, in the course of an 

examination of a witness, a line of questioning may be undertaken 

which is totally irrelevant, or even prejudicial to one of the other 

parties (e.g., that the activity engaged in possible unfair labor 

practices). The Hearing Officer properly interjects at this point and 

requests that the party explain the purpose of the question. If not 

persuaded otherwise, the question is “disallowed” (see HOG 2.1).

The Hearing Officer is permitted to interject and ask a follow up 

question when appropriate during another party‟s questioning of a 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

witness if the Hearing Officer‟s question is on point and does not 

interrupt the flow of the hearing. The Hearing Officer avoids the 

perception of controlling the hearing or interfering with the parties‟ 

right to present its best evidence as long as the evidence is 

relevant and material. See also HOG 11.8 and HOG 32.16.

 

28.6 Objection to questioning by Hearing Officer: The Hearing 

Officer is subject to the same requirements regarding the proper 

framing of questions to witnesses as are the parties. Thus, if an 

objection is raised by a party to a question posed by the Hearing 

Officer to a witness, the objection is given full consideration. If the 

Hearing Officer concludes that the objection has merit, the question 

is withdrawn or rephrased. An objection based solely on the 

contention that the Hearing Officer should not be engaged in any 

kind of questioning of a witness is without merit and is overruled. 

28.7 Decide all objections: All objections, whether made in good faith 

or seemingly frivolous, are handled on the record. If not withdrawn 

by the objecting party, the Hearing Officer rules the objection. 

Objections cannot be left dangling on the record. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

29 Offer of proof: 

An offer of proof may be made when the Hearing Officer rules that 

a party may not examine a witness or offer exhibits on a topic to 

which an objection has been sustained. The party adversely 

affected by the ruling may state that it wishes to make an offer of 

proof. This allows the party to describe the evidence on the record 

so that a ruling can be reviewed. The Hearing Officer permits the 

party to make the offer by stating: "I will hear the offer" or "you may 

proceed with your offer." The offer is made in one of three ways, 

depending on the discretion of the Hearing Officer: 

a) Verbally by the offering party -- The party states on the 

record what the evidence would be if permitted to proceed. 

b) Question and answer by a witness -- The examining party 

has the witness answer questions on the record as in a 

normal examination. This is only suitable if the questioning 

is brief. 

c) Written statement which is included in the record as the 

offer of proof. 

No cross-examination pertaining to the offer of proof is permitted. 

The Hearing Officer decides upon conclusion of the offer whether 

the testimony or exhibit is relevant and material to the issue 

involved. In ruling on the offer, the Hearing Officer states whether 

the previous ruling on the objection stands or is reversed. If the 

previous ruling sustaining the objection is reversed, the party may 

proceed to question the witness. If the objection is sustained, the 

matter is then in the record for the reviewing official to decide 

whether the Hearing Officer's ruling was proper. If correct, the 

evidence is not considered in making the ultimate decision. If, on 

review, the evidence is found to be relevant, then the matter may 

be remanded for further examination. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

30 Appeals from adverse rulings by the Hearing Officer: 

Automatic exceptions are afforded to all adverse rulings by the 

Hearing Officer. Immediate appeals to rulings by the Hearing 

Officer are not permitted. The Regional Director considers all 

rulings when reviewing the record. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

31 Obtaining an election agreement preceding or during the 

hearing: 

31.1 General: After the Notice of Representation Hearing is issued, the 

parties may entered into an election agreement prior to or after the 

hearing is opened. 

31.2 Prehearing election agreements: During the initial telephone 

contact and during subsequent prehearing meetings, the Hearing 

Officer initiates discussions with the parties concerning entering 

into an election agreement. The Hearing Officer need not continue 

such discussions beyond the point when the parties indicate a fixed 

position, precluding a basis for a consent election agreement. 

31.2.1 Election agreement obtained: Where the parties enter into an 

agreement for election prior to the opening of the hearing, the 

Regional Director is contacted promptly to determine whether the 

Regional Director will approve the agreement. The Hearing Officer 

informs the parties that holding the hearing is contingent upon 

approval of the agreement by the Regional Director. Therefore, the 

parties remain at the hearing site until the Regional Director 

indicates that s/he will approve or disapprove the agreement. 

Similarly, the court reporter is not released until the Regional 

Director informs the Hearing Officer that the agreement will be 

approved. Absent approval, the hearing proceeds. 

In presenting the details of the election agreement, the Hearing 

Officer apprizes the Regional Director of the basis supporting the 

agreed upon unit. Similarly, if the parties have agreed to utilize the 

challenged ballot procedure with respect to certain employees 

whose eligibility is still in dispute, the percentage of potential 

challenged ballots to the total number of eligible employees is 

reflected in the agreement. The Regional Director cannot approve 

an agreement for election where the percentage of challenged 

ballots is more than fifteen percent (15%). Additionally, the 

Regional Director cannot approve an Election Agreement: 

a) if s/he does not agree that the unit is appropriate pursuant 

to 5 U.S.C. 7112(a); or 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

b) when the petition raises a substantial question of policy 

requiring a hearing and decision by the Regional Director. 

See CHM 28.11.3.

For guidance and policy considerations in obtaining Election 

Agreements generally, see CHM 28. 

31.2.2 Procedure upon approval of agreement: When the Regional 

Director states s/he will approve an Election Agreement, the 

Hearing Officer informs the parties, and the parties sign the 

agreement. Thereafter, the parties and the court reporter are 

allowed to leave. 

The hearing is not opened for any purpose, such as to state on the 

record an election agreement has been obtained or to place a copy 

of the agreement in evidence. 

31.2.3 Withdrawal of notice of hearing: No formal action is required to 

withdraw the notice of hearing. A provision is contained in the 

agreement for election, which reads as follows: “If Notice of 

Hearing has been issued in this case, the approval of this 

agreement by the Regional Director shall constitute withdrawal of 

the Notice of Hearing heretofore issued, provided that the hearing 

has not been closed.” 

31.3 Election agreement obtained during the hearing: When the 

parties indicate a willingness to enter into an agreement for 

election: 

a) Discussion regarding the details of the agreement are 

conducted off the record; (see CHM 28.6 for checklist) 

b) The Hearing Officer participates in the discussion, 

particularly with regard to formulating the unit description. 

The Hearing Officer obtains the essential information 

regarding the criteria for determining the appropriateness 

of the unit agreed upon by the parties. Such information is 

recorded in the form of a stipulation or memorandum to the 

file. It is necessary to establish the basis upon which the 

Regional Director will approve or disapprove the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

agreement for election; 

c) The appropriate election agreement form is drafted 

reflecting the parties‟ agreement on the unit and other 

substantive matters. The parties do not sign the 

agreement until the Regional Director states that the 

agreement will be approved; 

d) After all matters relating to the proposed election have 

been agreed upon, the Hearing Officer apprizes the 

Regional Director of the proposed agreement of the 

parties, particularly with regard to the essential facts 

bearing upon the appropriateness of the unit; 

e) If the Regional Director indicates approval, the appropriate 

election agreement is completed by the Hearing Officer 

and signed and dated by the parties. It is then faxed to the 

Regional Director for approval if the hearing is held outside 

the Regional Office; and 

f) Once the Regional Director signs the agreement, the 

hearing is resumed for the limited purpose of the Hearing 

Officer stating on the record that the parties have entered 

into an Election Agreement. Thereafter, the hearing is 

adjourned indefinitely. 

Note: A copy of the agreement for election is not introduced in 

evidence. 

For more information on election agreements, see CHM 28.

31.4 Refusal by parties to sign election agreements: 

31.4.1 Prehearing: Prior to the opening of the hearing, the parties may 

state their general willingness to proceed to election. The hearing is 

not opened and the parties discuss the details of the election 

agreement. In accordance with § 2422.16(b) of the regulations, if 

the parties are unable to agree on procedural matters, specifically, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

the eligibility period, method of election, dates, hours, or locations 

of the election, the Regional Director decides these election 

procedures and issues a Direction of Election, without prejudice to 

the right of a party to file objections to the procedural conduct of the 

election (see CHM 28.11.1). 

If the parties are unable to agree to the unit or other nonprocedural 

matters, the Hearing Officer proceeds with the hearing (see CHM 

28.11.2).

31.4.2 During the hearing: During the hearing, the parties may state 

their willingness to enter into an election agreement, but are unable 

to agree on procedural matters [§ 2422.16(b)]. The Hearing 

Officer: 

a) obtains a stipulation on all substantive portions of the 

election agreement including appropriate unit and eligibility 

issues; 

b) incorporates the stipulation onto an election agreement, 

FLRA Form 33 or 34, as appropriate; 

c) notes on the record those matters on which the parties do 

not agree; 

d) obtains on the record the parties‟ respective positions with 

respect to each disputed procedural matter (rather than 

securing the positions in writing as discussed in CHM 

28.11.1);

e) refers the matter to the Regional Director for review and a 

Direction of Election; and 

f) adjourns the hearing. 

NOTE: This subsection does not apply when the parties are 

unable to agree on the unit or other nonprocedural matters {§ 

2422.16(c)]. If the parties are willing to enter into an Election 

Agreement, but are unable to agree on the unit or other 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

nonprocedural matters, the hearing continues.

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

CONDUCTING THE HEARING 

HOG 32 through HOG 34

32 Conducting the hearing: The Regional Director or his/her 

designee are required to be available to respond to situations that 

arise prior to or during the hearing. 

32.1 An overview: A representation hearing follows an orderly 

sequence assuring that all issues are fully developed and that a 

complete factual record is obtained. This section includes a 

description of a typical hearing. It does not purport to cover all 

situations nor is the order given necessarily the best in every case. 

This outline, or some variation of it, is used by the Hearing Officer 

both in the preparation for and the unfolding of the hearing. A 

sample of an actual script can be found in HOG script 35 and 

Figure 35 which is available at n:\figures\. 

32.2 Appearance sheets: Appearance sheets, FLRA Form 50, are 

completed by the Hearing Officer and by the parties. Each person 

who represents a party and who is likely to speak is introduced to 

the others, including the court reporter. The Hearing Officer makes 

sure all parties are ready (see HOG 4.3).

32.3 Calling the hearing to order: The hearing is called to order. The 

opening statement is read, including the parties' recorded 

statements of appearance. All representatives who may 

subsequently speak are identified on the record (see HOG script 

35.1).

Note: The Hearing Officer has the authority to limit the number 

of party representatives who participate on the record to a 

reasonable number.

32.4 Formal papers: Formal papers are identified and received. 

Prehearing motions and rulings/referrals, where appropriate, are 

also identified and received as formal papers (see HOG script 35.2 

and HOG 4.1).

32.4.1 Objections to formal papers or lack thereof are affirmatively placed 

on the record. Objections are normally withdrawn after an 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

explanation is given. That explanation consists of a statement that 

the papers in question constitute a routine introduction of a hearing; 

that admission of the documents does not irrevocably establish the 

truth of any allegations therein; that any relevant evidence may be 

introduced irrespective of such allegations; and that in any event, 

the Regional Director passes on the validity of this as any other 

evidence.

32.4.2 Any Request to Proceed, FLRA 44, is not part of the formal papers 

and does not go into the record at any point.

32.5 Ascertaining correct names of parties: The Hearing Officer 

ascertains for the record the correct names of the parties. The 

Hearing Officer is responsible for establishing on the record the 

correct and complete names of all parties making an appearance 

(see HOG script 35.3). The Hearing Officer also notes the formal 

paper(s) that includes the correspondence relating to any other 

party that was notified by the Regional Director that it may be 

affected by issues raised by the petition and did not respond to the 

letter or appear at the hearing. If the party was identified as an 

incumbent or employing agency, then the record reflects why that 

party is not appearing. See HOG 4.1, script at 35.3. 

32.6 Motions to amend the petition: The Hearing Officer rules on any 

corrective motions to amend the petition (see HOG script 35.4 and 

HOG 18.7).

32.7 Intervention: Motions to intervene or cross-petition filed 

immediately prior to the opening of the hearing are reviewed if 

necessary (see HOG script 35.5 and HOG 17.4 and 23).

32.8 Other prehearing motions or motions presented by the parties 

upon opening the hearing: The Hearing Officer considers and 

rules on any other motions raised by the parties (see HOG 17.4, 

18, 23 and HOG script 35.6).

32.9 Outlining the issues presented by the petition(s): Based on 

conversations and attachments to the Notice of Hearing issued 

prior to the hearing, the Hearing Officer sets forth the issues 

addressed by the petition as well as those matters that are nonissues (e.g., where there are no eligibility issues tied to an 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

appropriate unit hearing). After the issues are presented, the 

Hearing Officer seeks a stipulation from the parties that the issues 

and non-issues have been described accurately (see HOG script 

35.7, and HOG 2 and 3.7).

32.10 Timeliness issues: This section pertains to petitions seeking an 

election. At any hearing involving a petition seeking an election, 

the Hearing Officer inquires whether any of the parties contend that 

there is a bar to the election pursuant to § 2422.12 of the 

regulations (see HOG script 35.7.6 and HOG 48; RCL 12 for a 

substantive discussion). 

32.11 Alternative unit(s): If appropriate to the issues, the Hearing 

Officer asks all parties if there are any alternative units in which 

they would be willing to proceed to an election (see HOG script 

35.8). This allows the parties to explore alternatives to the 

positions initially taken with respect to the unit petitioned for. If 

necessary, the Hearing Officer reminds the petitioner, that any 

alternative unit must be supported by the showing of interest that 

has already been submitted. If the petitioner seeks to amend the 

petition, additional showing of interest is submitted with the 

amendment and the petitioner is required to be specific as to the 

scope of the unit. U.S. Department of the Interior, National Park 

Service, Washington, DC, 55 FLRA 311 (1999). HOG 18.7.6.

32.12 Receiving stipulations: The Hearing Officer introduces and 

receives any stipulations entered into by the parties prior to the 

hearing. Oral stipulations are read into the record. Written 

stipulations are received as joint exhibits of the parties (see HOG 

26 and HOG script 35.9).

32.13 Outlining the issues to address at the hearing: There may be 

occasions when the parties contest the relevance of issues that the 

Regional Director has identified as crucial to resolution of the 

petition. The Hearing Officer outlines these issues and reviews the 

issues presented by the petition(s) (see HOG script 35.10 and 

HOG 2 and 33.9). The Hearing Officer also advises the parties 

whether s/he has been given discretion to make recommendations 

on the record. 

32.14 Summarizing the parties' positions: If not already placed into 

the record by this point, each party makes an opening statement 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

summarizing its position on each issue raised by the petition as 

well as any other issue outlined by the Hearing Officer. These 

opening statements are necessary to ensure that each party 

correctly understands the issues that will be addressed at the 

hearing. In addition, these statements assist the Hearing Officer 

and the reader of the record in analyzing the relevance and 

materiality of the evidence (see HOG script 35.11).

32.15 Evidence: Prior to the opening of the hearing, the Hearing Officer 

and the parties discuss who presents their evidence first. See 

HOG 10.2.3. 

32.15.1 Overview: Evidence is received in the form of sworn testimony, 

exhibits or stipulations (see HOG 12 through 31). Each party is 

permitted to introduce any relevant testimony. The Hearing Officer 

administers the oath to every witness called to testify (see HOG 

script 35.12) and has the witness state his/her name, title and 

business address. Opportunity for cross examination of witnesses 

is accorded to all parties. Examination of each witness is allowed 

to continue until neither the parties nor the Hearing Officer have 

any further questions for the witness. 

Since the decision and further proceedings are based on the 

record, it is important that the record is accurate. The Hearing 

Officer carefully listens to the record as it is being delivered and 

initiates efforts to correct or clarify material errors. Corrections may 

be made by stipulation or by motion inserted in the record as it is 

still in session. 

32.15.2 Issues that may arise during the hearing: 

32.15.2.1 The Hearing Officer goes off the record to discuss possible 

stipulations, correct a party‟s behavior or review proper 

hearing procedures when necessary. All off the record 

remarks are summarized on the record. HOG 11.7.

32.15.2.2 The Hearing Officer‟s demeanor sets the tone for the 

hearing. The Hearing Officer does not use inappropriate 

remarks, “off the cuff” comments or demeaning remarks 

when questioning or conversing with the party 

representatives or the witnesses. HOG 11.5 and 11.6. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

32.15.2.3 The Hearing Officer ensures that the record reflects when 

a party does not cooperate generally, present evidence 

previously requested or make an effort to obtain it. This 

ensures that the reader of the record has a complete 

picture of the hearing and any unsuccessful efforts made 

by the Hearing Officer to obtain a complete record. In this 

connection, if testimony reveals the existence of a relevant 

document(s), but no party indicates an intention to 

introduce this document(s) as an exhibit(s), the Hearing 

Officer is responsible for obtaining the document from the 

appropriate party and, if necessary, entering the 

document(s) into the record as an exhibit(s) on his/her own 

motion.

32.15.2.4 During the prehearing conference the parties discuss 

representative testimony - where the testimony of one 

employee is representative of others in the same positions. 

Details and agreements reached are resolved prior to the 

opening of the hearing and repeated on the record. See 

HOG 8.2f.

Representative testimony is taken from only one witness 

(unless there is a stipulation that aggregation of testimony 

of identified witnesses is representative of a group of 

employees‟ testimony). NOTE: only one decision is made 

based on aggregate testimony. If testimony appears to 

conflict, Hearing Officer decides whether aggregate 

testimony is inconclusive and additional testimony is 

required. 

32.15.2.5 Details concerning taking testimony from witnesses via 

telephone or video transmission are resolved prior to the 

opening of the hearing. All details and agreements thereto 

are placed on the record. If these issues surface during 

the hearing, contact the Regional Director for guidance. 

HOG 8.2g. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

32.15.2.6 Use of memory joggers or witness notes are discouraged 

and disallowed in some situations. If the memory joggers 

came from a personal log maintained daily, they are placed 

on the record. Personal notes prepared just for the hearing 

cannot be used. 

32.15.2.7 A party may not introduce an affidavit into the record in lieu 

of witness testimony.

32.15.2.8 It is unacceptable to obtain adequate testimony from, for 

example, two of three contested employees, but nothing on 

the third (who is being contested for another reason). The 

third witness testifies as well. Regions cannot piece the 

record on the third witness from documentation.

32.15.2.9 In all representation cases, including those limited to 

eligibility issues, the mission, organization and agency 

functions are placed on the record. This information lays a 

foundation for the reader of the record for understanding in 

what context the disputed employees perform their work. 

32.16 Examination by the Hearing Officer: The Hearing Officer is 

responsible for: 

a) keeping track of the extent of the evidence in the record by 

whatever means s/he finds most comfortable (e.g., note 

taking). 

b) conducting whatever necessary examination has been 

omitted by the parties that s/he considers relevant to 

resolving the issues. The Hearing Officer may call 

witnesses and/or ask for documentation to fill the gaps in 

the evidence, address new issues that arise during the 

hearing and overrule the objection of any party in doing so. 

c) remembering that it is his/her responsibility to get the facts, 

while at the same time not appearing to side with any party 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

or lead any witness. 

d) ensuring that the record is understandable to the decision 

writer (see HOG 28.5 and 28.6). However, the Hearing 

Officer is not permitted to take over the hearing as the lead 

examiner except under exceptional circumstances. See

HOG 11.8.

32.17 Recommendations on the record: Section 2422.21(a) provides 

that the Hearing Officer may make recommendations on the record 

to the Regional Director. The decision to permit a Hearing Officer 

to make recommendations on the record is solely within the 

discretion of the Regional Director. With the exception of 

objections cases that are discussed in HOG 36, the Regional 

Director decides prior to the opening of the hearing whether the 

Hearing Officer may make recommendations on the record. In 

granting the Hearing Officer the discretion to make 

recommendations on the record, the Regional Director is required 

to specify the issues for which the Hearing Officer may make 

recommendations. 

If the Hearing Officer is permitted to make recommendations on the 

record, s/he adheres to the following guidelines: (see also HOG 

35.13) 

a) all evidence relevant to the specific issue is placed on the 

record; 

b) the Hearing Officer asks the parties whether they have any 

further information; 

c) the Hearing Officer summarizes the evidence referencing 

on the record testimony and documentation so that the 

reader of the record may refer directly to the evidence used 

to support the recommendation; 

d) the Hearing Officer asks the parties again if there is any 

information which is relevant that the Hearing Officer may 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

have overlooked; 

e) the Hearing Officer goes off the record to deliberate the 

issues, evidence and what the recommendation will be; 

f) when the Hearing Officer goes back on the record, s/he 

makes his/her recommendation. It is not sufficient to state 

simply that: “I am prepared to recommend that Ms. Smith is 

not a confidential employee ... .” Any recommendation is 

supported by a factual summary, an analysis of the factors 

considered in making the recommendation and references 

to applicable case law, as appropriate; and 

g) a party is not permitted to respond to the recommendation 

on the record except during the closing argument, or after 

the close of the hearing, in his/her brief. 

Under certain limited circumstances, the Hearing Officer may 

decide during the hearing to make a recommendation on the 

record. The Hearing Officer goes “off the record” and contacts the 

Regional Director for clearance to make the recommendation. If 

the Regional Director allows the Hearing Officer the make the 

recommendation, the Hearing Officer goes back on the record and 

states his/her reasons for making the recommendation before 

stating the recommendation. 

32.18 Before closing the record: Before making any 

recommendation(s), or in the absence of a recommendation, prior 

to closing the hearing, the Hearing Officer (HOG script 35.14):

a) reviews his/her notes to ensure that all issues raised prior 

to or during the hearing are dealt with on the record. If 

there are changes, the Hearing Officer notes on the record 

any regulatory requirements. 

b) asks the petitioner to amend the petition if the parties 

reached agreement on any issue on which the petitioner no 

longer seeks a Regional decision. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

c) reviews notes to identify whether evidence reveals that 

additional parties should be notified and given an 

opportunity to participate in the hearing. 

d) contacts the Regional Director to recommend 

postponement if the issues or parties change to allow for 

proper notification and preparation for the hearing. 

e) asks the parties to restate their positions to ascertain if any 

party wishes to change its 

position. 

32.19 Change of party position: Once the evidence is presented, the 

Hearing Officer asks the parties to repeat their positions and 

whether, in light of the evidence received, they wish to make any 

changes to their respective positions on the issues. In addition, if 

applicable, the Hearing Officer also asks whether the parties will 

agree to proceed to an election in the proposed unit or in an 

alternative unit. This is done on the record (see HOG script 35.15). 

See HOG 32.11 regarding rechecking the showing of interest, 

when it is appropriate to require an amended petition or obtain 

specificity with respect to the proposed amendment. 

32.20 Closing argument: The Hearing Officer encourages each party to 

argue orally and/or submit a post-hearing brief. All parties that 

wish to argue orally are given the opportunity to do so. If any party 

expresses a desire to file a post-hearing brief, the Hearing Officer 

provides a date certain as the deadline for receipt of briefs and 

instructions for extending the filing date. Section 2422.20(d) of the 

regulations provides that an original and two (2) copies of a brief 

must be filed with the Regional Director within thirty (30) days from 

the close of the hearing. A written request for an extension of time 

to file a brief must be filed with and received by the Regional 

Director no later than five (5) days before the date the brief is due 

(see HOG script 35.17). 

32.21 Closing the hearing: When the parties state they have nothing 

further, the Hearing Officer reads his/her closing statement and 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

declares the hearing closed (see HOG script 35.17).
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

33 Special admissibility matters: In addition to the normal 

considerations bearing on admissibility of evidence -- relevance, 

form, etc., -- there are a number of admissibility problems peculiar 

to the representation hearing. 

33.1 Attempt to litigate adequacy of showing of interest: If a party 

attempts to raise an issue regarding the adequacy of the showing 

of interest by the petitioner or intervenor(s) (i.e., whether the 

requisite minimum thirty percent (30%) or ten percent (10%), 

respectively, has been submitted), the Hearing Officer reads the 

following statement into the record: 

MR./MS. ..., SECTION 2422.9(b) OF THE regulations PROVIDES 

THAT THE REGIONAL DIRECTOR SHALL DETERMINE THE 

ADEQUACY OF THE SHOWING OF INTEREST 

ADMINISTRATIVELY, AND SUCH DECISION SHALL NOT BE 

SUBJECT TO COLLATERAL ATTACK AT A REPRESENTATION 

HEARING OR ON APPEAL TO THE AUTHORITY. 

For showings of interest submitted prior to the hearing, add: 

THE REGIONAL DIRECTOR DETERMINED THAT THE 

SHOWING OF INTEREST SUPPORTING THE (PETITION) 

(INTERVENTION) WAS ADEQUATE. 

For showings of interest submitted immediately prior to the opening 

of the hearing and not checked for adequacy, add: 

THE SHOWING OF INTEREST WILL BE CHECKED AS SOON 

AS POSSIBLE AND WILL NOT BE MADE PART OF THE 

RECORD. 

33.2 Attempt to litigate validity of showing of interest: 

a) If a party attempts to raise an issue regarding the validity of 

the showing of interest by the petitioner or intervenor(s); 

i.e., procurement of the evidence of interest by fraud, 

forgery, etc. that the Regional Director has already acted 

on, the Hearing Officer reads the following statement into 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

the record: 

MR./MS. ..., SECTION 2422.10 OF THE regulations PROVIDES 

THAT ANY PARTY CHALLENGING THE VALIDITY OF THE 

SHOWING OF INTEREST OF THE PETITIONER, CROSSPETITIONER, OR AN INTERVENOR MAY FILE ITS CHALLENGE 

WITH THE REGIONAL DIRECTOR OR THE HEARING OFFICER 

PRIOR TO THE OPENING OF THE HEARING. 

THE CHALLENGE SHALL BE SUPPORTED WITH EVIDENCE. 

THE REGIONAL DIRECTOR SHALL INVESTIGATE THE 

CHALLENGE AND TAKE SUCH ACTION AS DEEMED 

APPROPRIATE. SUCH ACTION SHALL BE FINAL AND NOT 

SUBJECT TO REVIEW BY THE AUTHORITY, UNLESS THE 

PETITION IS DISMISSED OR THE INTERVENTION IS DENIED 

ON THE BASIS OF THE CHALLENGE. 

PRIOR TO THE OPENING OF THIS HEARING, THE REGIONAL 

DIRECTOR ADMINISTRATIVELY DETERMINED THAT THE 

SHOWING OF INTEREST SUPPORTING THE (PETITION) 

(INTERVENTION) WAS VALID. 

b) For challenges received too late for the region to process 

prior to the opening of the hearing, the Hearing Officer 

reads the following statement into the record: 

IMMEDIATELY PRIOR TO THE OPENING OF THIS HEARING, 

THE (name party) FILED A CHALLENGE TO THE VALIDITY OF 

THE (name party)‟S SHOWING OF INTEREST. I AM 

REFERRING THE CHALLENGE AND SUPPORTING 

DOCUMENTATION TO THE REGIONAL DIRECTOR FOR 

CONSIDERATION AND DECISION PRIOR TO ISSUANCE OF 

THE DECISION AND ORDER PERTAINING TO THIS HEARING. 

THE CHALLENGE WILL NOT DELAY THE CONTINUATION OF 

THIS HEARING AT THIS TIME. NO EVIDENCE REGARDING 

THE CHALLENGE MAY BE INTRODUCED OR LITIGATED AT 

THIS HEARING. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

c) For challenges filed during the hearing, the Hearing Officer 

reads the following statement into the record: 

THE (name party) FILED A CHALLENGE TO THE VALIDITY OF 

THE (name party)‟S SHOWING OF INTEREST. MR./MS. ....., 

SECTION 2422.10 OF THE regulations PROVIDES THAT ANY 

PARTY CHALLENGING THE VALIDITY OF THE SHOWING OF 

INTEREST OF THE PETITIONER, CROSS-PETITIONER, OR AN 

INTERVENOR MAY FILE ITS CHALLENGE WITH THE 

REGIONAL DIRECTOR OR THE HEARING OFFICER PRIOR TO 

THE OPENING OF THE HEARING, UNLESS GOOD CAUSE IS 

SHOWN FOR GRANTING AN EXTENSION. I AM REFERRING 

THE CHALLENGE AND SUPPORTING DOCUMENTATION TO 

THE REGIONAL DIRECTOR FOR CONSIDERATION ON 

TIMELINESS AND THE MERITS OF THE CHALLENGE. THE 

CHALLENGE WILL NOT DELAY THE CONTINUATION OF THIS 

HEARING AT THIS TIME. NO EVIDENCE REGARDING THE 

CHALLENGE MAY BE INTRODUCED OR LITIGATED AT THIS 

HEARING. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

33.3 Attempt to litigate challenge to status of labor organization: A 

challenge to the status of a labor organization may be based on 

compliance with 5 U.S.C. 7103(a)(4) or claims that the labor 

organization is subject to corrupt influences or influences opposed 

to democratic principles pursuant to 5 U.S.C. 7111(f)(1). 

a) If a party attempts to raise an issue regarding the status of 

the petitioner and/or any intervenor as a labor organization 

within the meaning of the Statute that has been considered 

and decided by the Regional Director prior to the hearing, 

the Hearing Officer reads the following statement into 

record: 

MR./MS. ..., SECTION 2422.11 OF THE regulations PROVIDES 

THAT ANY PARTY CHALLENGING THE STATUS OF A LABOR 

ORGANIZATION MAY FILE ITS CHALLENGE WITH THE 

REGIONAL DIRECTOR OR THE HEARING OFFICER PRIOR TO 

THE OPENING OF THE HEARING. 

 

THE REGIONAL DIRECTOR SHALL INVESTIGATE THE 

CHALLENGE AND TAKE SUCH ACTION AS DEEMED 

APPROPRIATE. 

PRIOR TO THE OPENING OF THIS HEARING, THE REGIONAL 

DIRECTOR ISSUED A DECISION AND ORDER DETERMINING 

THAT THE (name) . . . . . IS A LABOR ORGANIZATION WITHIN 

THE MEANING OF THE STATUTE. 

The foregoing restrictions, of course, do not apply in any instance 

in which the issue of labor organization status was raised timely by 

challenge and which the Regional Director concluded required a 

hearing and issuance of a Decision and Order. In such cases, the 

status issue becomes a threshold issue at the hearing.

b) For challenges filed too late to be investigated and decided 

by the Regional Director prior to the hearing or filed with 

the Hearing Officer at the hearing, the Hearing Officer 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

contacts the Regional Director to discuss the issues and 

procedures for handling. The challenging party is required 

to submit all supporting evidence with the challenge and be 

prepared to proceed on the issue at the hearing. The 

Hearing Officer takes evidence on before proceeding with 

the rest of the hearing. Ultimately, the status issue is 

decided by the Regional Director when s/he issues the 

Decision and Order or Direction of Election. The Hearing 

Officer reads the following statement into the record: 

IMMEDIATELY PRIOR TO THE OPENING OF THIS HEARING, 

THE (name party) FILED A CHALLENGE TO THE STATUS OF 

THE (name party). BECAUSE THE ISSUE OF THE STATUS OF 

THE (name party) IS A THRESHOLD ISSUE THAT IS 

CONSIDERED BEFORE PROCEEDING WITH THIS HEARING, I 

AM PREPARED TO HEAR TESTIMONY AND TAKE EVIDENCE 

ON (name of challenging party)‟S STATUS CHALLENGE. THE 

ISSUE OF THE (name party)‟S STATUS AS A LABOR 

ORGANIZATION WILL BE DECIDED BY THE REGIONAL 

DIRECTOR AS PART OF THE DECISION AND ORDER OR 

DIRECTION OF ELECTION. At this point, the Hearing Officer 

states that the challenging party is required to provide evidence 

that the Department of Labor or other third party has found a 

violation of standards of conduct such that there is reasonable 

cause to believe that the challenged labor organization was: 

(i) was suspended or expelled from, or was otherwise 

sanctioned by, a parent organization, or federation 

of organizations with which it had been affiliated, 

based on its demonstrated unwillingness or 

inability to comply with the governing procedures 

set out in § §7120(a)(1) through (4); or 

(ii) is in fact subject to corrupt or anti-democratic 

influences. If evidence is filed, follow the 

procedures discussed in CHM 19.10.2 and CHM 

23.9.3. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

c) If the challenge is filed during the hearing, the Hearing 

Officer asks the challenger to state the grounds for the 

status challenge and the reasons for the delay in filing. 

The Hearing Officer then contacts the Regional Director (or 

acting RD) to discuss the reasons for the party‟s delay in 

filing. If the Regional Director determines that the 

challenger has established good cause for extending the 

time limits, the Director instructs the Hearing Officer to take 

evidence on the issue. 

MR./MS.... HAS JUST CHALLENGED THE STATUS OF THE 

(name party) AS A LABOR ORGANIZATION. SECTION 2422.11 

OF THE regulations PROVIDES THAT ANY PARTY 

CHALLENGING THE STATUS OF A LABOR ORGANIZATION 

MAY FILE ITS CHALLENGE WITH THE REGIONAL DIRECTOR 

OR THE HEARING OFFICER PRIOR TO THE OPENING OF THE 

HEARING, UNLESS GOOD CAUSE IS SHOWN FOR GRANTING 

AN EXTENSION. MR./MS ..., YOUR CHALLENGE HAS BEEN 

FILED AFTER THE HEARING HAS BEEN OPENED. WHAT IS 

YOUR POSITION WITH RESPECT TO THE TIMELINESS OF 

YOUR CHALLENGE? ON WHAT BASIS DO YOU ARGUE THAT 

THERE IS GOOD CAUSE FOR GRANTING YOU AN EXTENSION 

OF TIME FOR FILING THE CHALLENGE TO THE STATUS OF 

THE (name party)? WHAT ARE THE GROUNDS ON WHICH 

YOU BASE YOUR CHALLENGE? DO YOU HAVE EVIDENCE TO 

SUPPORT THE CHALLENGE? [Timeliness does not apply to 

claims filed pursuant to 5 U.S.C. 7111(f)(1).] 

WHAT ARE THE POSITIONS OF THE OTHER PARTIES? 

At this point, the Hearing Officer asks the challenging party the 

same questions asked in “(b)” above; then goes off the record to 

contact the Regional Director and obtain instructions on how to 

proceed. See HOG 24.3 and HOG 46A [status challenges 

pertaining to compliance with 5 U.S.C. 7103(a)(4)] and HOG 

46B [status challenges pertaining to claims made pursuant to 

5 U.S.C. 7111(f)(1)]. See also RCL 10A and 10B. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

33.4 Attempt to litigate noncompliance with 5 U.S.C. 7111(e): 

Challenges alleging that a labor organization failed to submit the 

materials required by 5 U.S.C. 7111(e) may not be litigated in 

either an unfair labor practice proceeding or a representation 

proceeding. Compliance with 5 U.S.C. 7111(e) is an administrative 

matter determined by the Regional Director and not subject to 

collateral attack at a representation hearing. See U.S. Department 

of Transportation, U.S. Coast Guard Finance Center, Chesapeake, 

Virginia, 34 FLRA 946 (1990). 

33.5 Attempt to litigate noncompliance with 5 U.S.C. 7120: 5 U.S.C. 

7120 establishes the internal union standards of conduct applicable 

to labor organizations that hold exclusive representation under the 

Statute or seek that status. 5 U.S.C. 7120(d) commits standards of 

conduct issues to the exclusive jurisdiction to the Assistant 

Secretary of Labor, unless they are raised as part of a claim that a 

labor organization is subject to corrupt influences within the 

meaning of 5 U.S.C. 7111(f)(1). HOG 33.3.

If the challenging party is only alleging a violation of the Standards 

of Conduct described in 5 U.S.C. 7120, the Regional Director 

issues a letter to the challenging party referring that party to the 

Department of Labor (if the challenge is filed prior to the hearing). 

If such allegations are raised at a hearing, the Hearing Officer 

allows an offer of proof on the record and then sustains any 

objection to the admission of testimony or documentary evidence 

bearing on this issue. If no objection is made, the Hearing Officer 

on his/her own, excludes such evidence. See American Federation 

of Government Employees, Local 2000, AFL-CIO, 8 FLRA 718 

(1982); National Association of Government Employees, Local R5-

66, 17 FLRA 796 at 813 

(1985) and American Federation of Government Employees, Local 

2419, 53 FLRA 835, 841-842 (1997). See also CHM 19.10.4.

33.6 Attempt to litigate unfair labor practices: Evidence of unfair 

labor practices by any of the parties involved in the proceedings is 

not admissible. Any line of questioning or exhibits that seek to 

establish or inquire into conduct by the activity, petitioner or any 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

intervenor, which allegedly violated 5 U.S.C. 7116 are wholly 

inadmissible. The Hearing Officer is particularly alert to interject, 

even if there are no objections, and to disallow such questioning, 

including striking any such testimony, if necessary. 

33.7 Attempt to litigate supervisory assistance: Evidence of conduct 

by a supervisor or management official with respect to soliciting or 

obtaining any showing of interest in support of a petition or 

intervention seeking an election or a determination of eligibility for 

dues allotment is not admissible unless it is an issue of the hearing. 

See United States Army Air Defense Artillery Center and Fort Bliss, 

Fort Bliss, Texas, 55 FLRA 940 (1999). Such hearings are very 

rare and are avoided. See CHM 18.19. 

33.8 Attempt to litigate petitioner’s unit eligibility: In an election 

petition requiring a showing of interest, an issue that may be 

litigated is whether the petitioner in a decertification case or the 

petitioner‟s representative in a representation election case is 

bargaining unit eligible (e.g., supervisor or management official). 

However, only evidence which relates to the criteria set forth in 5 

U.S.C. 7103(a) and 7112(b) is relevant. Testimony is not permitted 

regarding any alleged conduct in obtaining any showing of interest 

in support of these petitions except when the issue of supervisory 

involvement is the issue in a hearing concerning a challenge to the 

validity of the showing of interest (such hearings are very rare and 

are avoided - See CHM 18.19).

33.9 Evidence with respect to the appropriateness of potential 

appropriate units other than those which may be identified in 

the petition: Pursuant to § 2422.3 of the regulations, a petitioner 

is only required to describe the unit(s) affected by the issues raised 

in the petition and provide a clear and concise statement of the 

issues raised by the petition and the results the petitioner seeks. 

Normally, in petitions that seek elections, petitioners describe the 

unit they seek to represent. 

NOTE: In a Decision and Order involving an appropriate unit 

question in an election petition, the Regional Director decides 

only whether the unit petitioned for in an election case or any 

alternative unit the petitioner has agreed to is appropriate. 

The Regional Director does not decide whether there is a more 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

appropriate unit or whether the Activity’s proposed unit is 

appropriate if s/he finds that the petitioner’s unit(s) are not 

appropriate. See Department of Transportation, Federal 

Aviation Administration, New England Region (FAA), 20 FLRA 

224 (1985). 

However, in cases where the scope of any resulting unit is unclear 

(e.g., reorganizations, election versus accretion cases), the 

petitioner may not be able to describe the proposed unit(s) with any 

specificity. In such cases, the evidence taken during the hearing is 

broad enough to encompass all potential appropriate units, whether 

identified as such by the parties, the Regional Director, or the 

Hearing Officer. See RCL 3 and HOG 39.

NOTE: In a petition in which the parties are not sure what 

happened to their unit as a result of a reorganization, the 

Regional Director’s decision is based on the facts and the 

issues not only defined by the petitioner but also by the facts 

and circumstances that resulted in the petition. CHM 1.1. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

34 Hearing Officer's Report: (Not for use in an election objections 

case, see HOG 36 of this Guide). 

34.1 Purpose: s report is to give a 

summary of the issue(s) involved, the pertinent evidence presented 

with respect to such issue(s), any unusual or significant procedural 

problems affecting the proceedings, information concerning 

submission of briefs, and the motions on which the Regional 

Director rules. No recommendations are included in the report 

although the Hearing Officer notes the issues and 

recommendations for which s/he was given discretion to make. 

34.2 Submission: s report is submitted to the 

Regional Director, placed in the case file and provided to the 

reviewer of the record as soon as possible after the closing of the 

hearing. 

34.3 s Report: Preparation of the 

report is based upon the events which occurred at the hearing. 

Notwithstanding the fact that a hearing involves extensive evidence 

and/or novel or complex issues, submission cannot be delayed for 

the purpose of checking the transcript and exhibits in the 

preparation of the report. 

34.4 Contents of Report:

s Report. A draft of the report is located at 

n:\figures\H34_4.wpd. In completing the items in the report, the 

following details are noted: 

a) Item 1(c)--Pleadings and Parties: Enter the name of each 

party as stated on the record. If amended, the name is 

shown as amended. Note the date(s) of the hearing and 

its location. 

b) Item 2--Issue(s): Summarize the matters that were in issue 

at the hearing and the pertinent evidence presented with 

respect to each issue. Any issue litigated other than those 

listed is checked under the heading “Other” and discussed 

in item 8.

c) Item 3 --Procedure: Discuss any unusual or significant 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

procedural problems affecting the proceeding and/or any 

rulings made about which the Hearing Officer is in doubt. 

d) Item 4 --Bars to election: Include an affirmative statement 

concerning whether there were any bars to a petition for an 

election. 

e) Item 5--Showing of Interest: In addition to checking the first 

entry; i.e., that the completed FLRA Form 52, and any 

amendment(s), are attached to the report, each of the 

remaining three (3) items are completed by entering either 

a checkmark or NA (Not Applicable). Any party's showing 

of interest is examined to determine its adequacy in 

relation to any or all of the remaining three items, if 

relevant to the particular hearing. The adequacy or 

inadequacy of the showing of interest is indicated, of 

course, by striking out or underscoring the word “(not).” 

Example 1: if the activity contends that a unit different from 

that sought is appropriate and examination reveals that the 

showing of interest is adequate, the second item is 

checked, the word “(not)” stricken and the arithmetic details 

set forth. 

Example 2: where the inclusion of seasonal and part-time 

employees is in issue, the petitioner contending that these 

employees should be excluded, the l

s showing of interest is adequate 

in the event that these categories are included in the unit 

by the Regional Director and the arithmetic details set 

forth. 

In each instance, the showing of interest for any 

intervenor(s) is also reflected. 

f) Item 6--Stipulations: List the stipulations. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

g) Item 7--Recommendations made on the record: Review the 

instructions given by the Regional Director concerning 

making recommendations on the record. Note the issue 

and the recommendation made. 

h) Item 8--Other issues or problems: Summarize relevant 

facts regarding any issue(s) or problem(s) not covered 

under any of the above paragraphs; e.g., status of labor 

organization. 

i) Item 9–Briefs: State whether the parties intend to file briefs 

and the due date established for filing any brief(s). 

j) Item 10--Reporter‟s estimate of transcript pages: Insert the 

number of estimated pages. 

SAMPLE SCRIPT 

HOG 35 

35 Script: The following is a basic outline for a hearing. It can be 

modified as necessary to fit particular circumstances (see Figure 

35 at n:\figures\H35.wpd). 

35.1 Appearances and opening statement:

 ON THE RECORD. THE HEARING WILL BE IN ORDER. 

THIS IS A FORMAL HEARING IN THE MATTER 

OF............................, CASE 

NUMBER.............................................BEFORE THE FEDERAL 

LABOR RELATIONS AUTHORITY. 

Read the entire caption of the case from the notice of hearing. 

THE HEARING OFFICER APPEARING FOR THE FEDERAL 

LABOR RELATIONS AUTHORITY IS .............................. 

WILL REPRESENTATIVES FOR EACH OF THE PARTIES 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

PLEASE STATE THEIR APPEARANCE FOR THE RECORD, 

INCLUDING TITLE, ADDRESS AND ZIP CODE? 

 FOR THE (ACTIVITY) (AGENCY)? 

 FOR THE PETITIONER? 

 FOR THE INTERVENOR(S)? 

If appearance is by an attorney, obtain full name of law firm. 

Appearance by a labor organization representative reflects the 

national with whom affiliated. 

I WISH TO INFORM ALL PARTIES THAT THE OFFICIAL 

REPORTER MAKES THE ONLY OFFICIAL TRANSCRIPT OF 

THESE PROCEEDINGS AND ALL CITATIONS IN BRIEFS OR 

ARGUMENTS MUST REFER TO THE OFFICIAL RECORD. 

AFTER THE CLOSE OF THE HEARING ONE OR MORE OF THE 

PARTIES MAY WISH TO HAVE CORRECTIONS MADE IN THE 

RECORD. ALL SUCH PROPOSED CORRECTIONS, EITHER BY 

AN AGREED STATEMENT, STIPULATION, OR MOTION SHALL 

BE MADE IN WRITING TO THE REGIONAL DIRECTOR. 

I WISH TO STRESS THE FACT THAT ALL MATTERS SPOKEN 

IN THE HEARING ROOM ARE RECORDED BY THE OFFICIAL 

REPORTER WHILE THE HEARING IS IN SESSION. IN THE 

EVENT THAT ANY OF THE PARTIES WISHES TO MAKE OFFTHE-RECORD REMARKS, REQUESTS TO MAKE SUCH 

REMARKS ARE DIRECTED TO THE HEARING OFFICER AND 

NOT TO THE OFFICIAL REPORTER. STATEMENTS OF 

REASONS IN SUPPORT OF MOTIONS AND OBJECTIONS ARE 

AS CONCISE AS POSSIBLE. OBJECTIONS AND EXCEPTIONS 

MAY, UPON APPROPRIATE REQUEST, BE PERMITTED TO 

STAND TO AN ENTIRE LINE OF QUESTIONING. AUTOMATIC 

EXCEPTIONS ARE ALLOWED TO ALL ADVERSE RULINGS. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

THE SOLE OBJECTIVE OF THE HEARING IS TO ASCERTAIN 

AND INQUIRE INTO THE RESPECTIVE POSITIONS OF THE 

PARTIES AND TO OBTAIN A COMPLETE AND FULL FACTUAL 

RECORD UPON WHICH A DECISION MAY BE BASED. IT MAY 

BECOME NECESSARY FOR THE HEARING OFFICER TO ASK 

QUESTIONS, AND TO EXAMINE WITNESSES, WITH RESPECT 

TO MATTERS NOT RAISED OR PARTIALLY RAISED BY THE 

PARTIES. THE SERVICES OF THE HEARING OFFICER ARE 

EQUALLY AVAILABLE TO ALL PARTIES TO THIS 

PROCEEDING. 

AFTER THE CLOSE OF THE HEARING, THE REGIONAL 

DIRECTOR WILL ISSUE A DECISION AND ORDER. 

35.2 Receiving formal papers in evidence: (see HOG 4.1, 10.2.2 and 

32.4) 

I NOW PROPOSE TO RECEIVE THE FORMAL PAPERS INTO 

THE RECORD. 

THE PARTIES WERE AFFORDED THE OPPORTUNITY TO 

EXAMINE THE FORMAL PAPERS PRIOR TO THE OPENING OF 

THIS HEARING. 

ARE THERE ANY OBJECTIONS TO RECEIVING IN EVIDENCE 

THE FORMAL PAPERS AS AUTHORITY EXHIBITS MARKED 1a 

THROUGH 1... FOR IDENTIFICATION? 

 HEARING NO OBJECTION, THEY ARE RECEIVED INTO THE 

RECORD. 

A party is allowed to state its objections, in full, on the record. If the 

objection is raised as to the admissibility of an exhibit, the Hearing 

Officer explains that: 

a) the formal papers are necessary to the Authority's 

jurisdiction in the matter, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

b) receipt of the exhibits in evidence does not establish the 

truth of the matters contained therein, 

c) any relevant evidence may be introduced irrespective of 

the contents of the exhibits, and 

d) in any event, the Regional Director passes on the 

admissibility of such exhibits and any other evidence. 

If the other party does not withdraw its objection after this 

explanation, the objection is overruled. 

If a party seeks to raise an issue or makes a motion on any matter 

unrelated to the formal papers (e.g., intervention, showing of 

interest, etc.,) before all papers are received in evidence, ruling by 

the Hearing Officer on that motion is deferred until disposition of 

the Authority exhibits is completed. 

If an issue is raised regarding: 

a) the adequacy of the showing of interest, see HOG 33.1; 

b) the validity of the showing of interest, see HOG 33.2; 

c) the status of a labor organization, see HOG 33.3; or

d) or motion to dismiss petition, see HOG 18.3.

35.3 Ascertaining correct names of parties: (see HOG 3 and 32.5) 

MR./MS. ..., IS THE NAME OF THE ACTIVITY AND THE AGENCY 

APPEARING ON THE PETITION NAMELY, .... CORRECT? 

MR./MS. ..., IS THE NAME OF THE PETITIONER APPEARING 

ON THE 

PETITION, 

NAMELY ... 

CORRECT? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

MR./MS. ................, IS THE NAME OF THE INTERVENOR 

APPEARING ON THE PETITION/NOTICE OF HEARING, 

NAMELY, ... CORRECT? 

If a party states that its name is not correct, the correct name is 

provided for the record, after which the Hearing Officer reads the 

following statement into the record: 

ARE THERE ANY OBJECTIONS TO HAVING THE PETITION 

AND THE OTHER FORMAL PAPERS AMENDED SO THAT THE 

NAME OF THE (ACTIVITY, AGENCY, PETITIONER, 

INTERVENOR) WILL APPEAR CORRECTLY IN THE CAPTION 

AS ................? 

The affiliation, if any, with national, international, and/or parent 

federation, is included in full. No abbreviation in the name of a 

labor organization is permitted, except in the single instance of 

AFL-CIO. 

The correct name of a labor organization, as provided by its 

representative, need not be supported by documentary evidence or 

testimony. 

35.4 Other motions to amend the petition: If the Hearing Officer 

knows in advance (as a result of prehearing discussions) that the 

petition will be amended, it is amended at this time (see HOG 18.7 

and 32.6 for instructions on handling amendments to petitions). 

35.5 Intervention and cross-petition: Motions to intervene and crosspetitions that were filed immediately prior to the opening of the 

hearing are reviewed and, if necessary, ruled on (see HOG 17.4, 

23, 32.7 and 33).

 (A)(1) When the motion to intervene is being granted: 

MR./MS. .....,YOUR MOTION TO INTERVENE, ON BEHALF OF 

....., IS GRANTED.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

 (2) If the Hearing Officer has any doubt as to the propriety of 

permitting intervention, s/he states the following: 

 MR./MS. ......,YOUR MOTION TO INTERVENE, ON 

BEHALF OF ...., IS GRANTED, CONDITIONALLY (if necessary, 

AND SUBJECT TO A SUBSEQUENT CHECK OF THE 

SUFFICIENCY OF THE SHOWING OF INTEREST). A FINAL 

DECISION IS BEING RESERVED FOR THE REGIONAL 

DIRECTOR IN THE DECISION AND ORDER. 

(B)(1) With respect to cross-petitions: 

 WITH RESPECT TO THE CROSS-PETITION, WHAT ARE 

THE POSITIONS OF THE PARTIES ON CONSOLIDATING THE 

CROSS-PETITION WITH THE PETITION PRESENTLY BEFORE 

THE HEARING OFFICER? 

 ON THE BASIS OF A DISCUSSION WITH THE 

REGIONAL DIRECTOR, THE REGIONAL DIRECTOR HAS 

DECIDED TO CONSOLIDATE / NOT TO CONSOLIDATE THE 

CROSS-PETITION WITH THE PETITION PENDING BEFORE 

THIS HEARING OFFICER. 

If the Regional Director grants the cross-petitioner status 

on a “conditional basis”, the Hearing Officer adds: 

MR./MS. ......,YOUR REQUEST TO CROSS-PETITION IS 

GRANTED, CONDITIONALLY. A FINAL DECISION IS BEING 

RESERVED FOR THE REGIONAL DIRECTOR IN THE DECISION 

AND ORDER. 

 

 (2) If the petitions are consolidated: 

I WILL NOW INTRODUCE THE CROSS-PETITION AS 

AUTHORITY EXHIBIT #... 

ARE THERE ANY OBJECTIONS TO RECEIVING INTO 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

EVIDENCE AUTHORITY EXHIBIT # ...........? 

HEARING NO OBJECTION, AUTHORITY EXHIBIT # ............ IS 

RECEIVED. 

 (3) If the intervention or cross-petition is filed during the 

hearing: the Hearing Officer asks the party to state the 

grounds for the request and the reasons for the delay in 

filing. The Hearing Officer then contacts the Regional 

Director (or acting RD) to discuss the reasons for the 

party‟s delay in filing. If it appears that the party requesting 

intervention has shown good cause for granting an 

extension to the timeliness requirements, the Regional 

Director may allow the Hearing Officer to grant 

“conditional” intervention and the script in “(2)” is read into 

the record. If it does not appear that the party‟s untimely 

intervention warrants further consideration, the Regional 

Director instructs the Hearing Officer to refer the 

intervention request to the Regional Director for action 

(HOG 17.4, and 18.4 and 23 for cross-petitions). 

35.6 Other prehearing motions presented by the parties upon 

opening the hearing: Other motions are handled similarly to 

those discussed above (see HOG 18, 24, 32.8 and 33).

Other parties that were notified of the petition and did not respond 

are listed in the record at this time. See HOG 32.5. 

35.7 Outlining the issues presented by the petition: The following 

are examples of scripts which concern issues that are commonly 

raised in petitions (see HOG 32.9, 2 and 3.7).

35.7.1 Appropriate unit: (see HOG 37for information required for the 

record and RCL 1 for substantive discussions of the issues) 

 This sample involves a consolidated hearing for two election 

petitions: 

THE UNIT SOUGHT BY THE PETITIONER IN CASE NO. ....., IS 

DESCRIBED AS FOLLOWS IN THE AMENDED PETITION: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

(describe proposed unit) 

THE UNIT SOUGHT BY THE SAME PETITIONER IN CASE NO. 

....., IS DESCRIBED AS FOLLOWS IN THE AMENDED PETITION:

 (describe proposed unit) 

MR./MS. ........, WHAT IS THE POSITION OF THE PETITIONER 

REGARDING THE APPROPRIATENESS OF THE PETITIONEDFOR UNITS? 

MR./MS. ......., WHAT IS THE POSITION OF THE ACTIVITIES 

REGARDING THE APPROPRIATENESS OF THE PETITIONEDFOR UNITS? 

ALTERNATIVE UNIT(S) (optional, see HOG script 35.8).

AT THIS TIME, WILL THE PETITIONER STATE FOR THE 

RECORD ITS POSITION AS TO WHAT UNIT(S), IF ANY, IT 

WOULD BE WILLING TO PROCEED TO AN ELECTION IN AS AN 

ALTERNATIVE TO THE UNITS SOUGHT BY THE AMENDED 

PETITIONS? 

WHAT IS THE POSITION OF THE ACTIVITIES REGARDING ANY 

SUCH ALTERNATIVE UNIT(S)? 

35.7.2 Eligibility: (see HOG Employee Category 51 through 64 for 

information required for the record and RCL 15 through 28 for 

substantive discussions of the issues) 

 This sample involves a request to clarify multiple bargaining 

positions. 

IN THIS CASE, THE PETITIONER SEEKS TO CLARIFY THE 

BARGAINING UNIT DESCRIBED BELOW WHICH WAS 

CERTIFIED ON ....... IN CASE NO. .......: 

(Describe the recognized or certified unit directly from the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

11

recognition or certification; if neither document is available, the 

Hearing Officer relies on the unit description in the contract. If 

there are any discrepancies between the names of the parties to 

the case as opposed to the names of the parties on these 

documents, this is clarified on the record, either through a 

stipulation or testimony.) 

THROUGH THIS PETITION, THE PETITIONER, ....., PROPOSES 

THAT THE ABOVE-DESCRIBED UNIT BE CLARIFIED BY 

INCLUDING THE FOLLOWING EMPLOYEE(S): 

 TITLE GRADE SERIES

 INCUMBENT

Note: When clarifying units, the petitioner is required to specify the 

positions held by specific individuals that it seeks to clarify. For 

example, a petition may seek to clarify only certain Program 

Analysts, GS-9. The record tracks the petition and reflects the 

names of the individuals who encumber the positions affected by 

the petition. The record in this example includes an explanation 

why the petitioner seeks to clarify the status of certain individuals 

and not others. 

When a petition seeks to clarify the status of an entire 

classification of employees, e.g., all Program Analysts, GS-345-9, 

the parties prepare an exhibit that identifies the names and 

organizational location of the incumbents. This is a joint exhibit 

absent a stipulation that the petition seeks to clarify the status of all 

employees who encumber the specific position at issue. This 

example is also appropriate for selecting one individual to provide 

representative testimony. HOG 32.15.2.4. 

MR./MS. ......, HAVE I CORRECTLY STATED THE PURPOSE OF 

THE ....'S PETITION TO CLARIFY THE UNIT? 

MR./MS. ....., IS THIS .....(other party)'S UNDERSTANDING OF 

THE PURPOSE OF THE PETITIONER'S CLARIFICATION OF 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

12

UNIT PETITION? 

WILL EACH OF THE PARTIES STATE ITS POSITION WITH 

RESPECT TO THE INCLUSION OR EXCLUSION OF (EACH OF) 

THE CLASSIFICATION(S) IN ISSUE, NAMELY...........................? 

MR./MS. .............., FOR THE PETITIONER? 

 

MR./MS. .............., FOR THE (ACTIVITY) (AGENCY)? 

MR./MS. .............., FOR THE INTERVENOR? 

35.7.3 Matters relating to representation (e.g., reorganization, 

accretion, successorship, Montrose): (see HOG 37 through 50 

for questions and RCL 1 through 14 for substantive discussions of 

the issues) 

IN THIS CASE, THE PETITIONER SEEKS TO CLARIFY THE 

BARGAINING UNIT DESCRIBED BELOW WHICH WAS 

CERTIFIED ON ...... IN CASE NO. .......: 

In this sample, there is only one unit being clarified as a result of a 

substantial change in the character and scope of the unit. The 

existing unit description is read into the record. On the other hand, 

a large reorganization may affect many units. Rather than read all 

of the units into the record, the parties prepare a joint exhibit setting 

forth descriptions of the units and the dates of recognition or 

certification with copies of appropriate recognitions and 

certifications. 

THROUGH THIS PETITION, THE PETITIONER(S) SEEKS TO 

CLARIFY THE CERTIFIED UNIT(S) BY: [Provide a clear and 

concise statement of the issues raised by the petition and the 

results the petitioner(s) seeks.] 

MR./MS. ...., HAVE I CORRECTLY STATED THE PURPOSES OF 

THE PETITIONER'S PETITION? 

MR./MS. ...., IS THIS THE (other party)'S UNDERSTANDING OF 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

13

THE PURPOSES OF THE PETITIONER'S PETITION? 

The Hearing Officer confirms that all parties understand the 

purpose of the petition. 

35.7.4 Unit consolidations: (see HOG 39 for information required for the 

record and RCL 13 for substantive discussions of the issues)

 This example is a request to consolidate two separate bargaining 

units. 

THROUGH THIS PETITION, THE PETITIONER, ....., SEEKS TO 

CONSOLIDATE (cite number of units) TWO SEPARATE 

EXISTING BARGAINING UNITS WHICH IT CURRENTLY 

REPRESENTS. ONE OF THE UNITS IS A UNIT OF 

EMPLOYEES OF .....(name of Activity/Agency), WHICH AS MOST 

RECENTLY CERTIFIED ON .... (cite date) IN CASE NO. ..... IS 

DESCRIBED AS FOLLOWS: 

(describe current unit "A" directly from the recognition or 

certification; if neither document is available, the parties may 

stipulate that the unit described in the negotiated agreement is 

representative of the recognition. Any discrepancies between the 

names of the parties to the case as opposed to the names of the 

parties on the certifications or recognitions are clarified on the 

record, either through a stipulation or testimony, and if necessary, a 

designation of representative.) 

THE SECOND OF THESE UNITS CURRENTLY REPRESENTED 

BY ...... (union) IS A UNIT OF EMPLOYEES OF................ (name 

of activity/agency), WHICH AS MOST RECENTLY CERTIFIED 

ON...........(date) IN CASE NO. ......... IS DESCRIBED AS 

FOLLOWS: 

(describe current unit "B" directly from the recognition or 

certification; if neither document is available, per the parties‟ 

stipulation, the Hearing Officer may rely on the unit description in 

the contract. Any discrepancies between the names of the parties 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

14

to the case as opposed to the names of the parties on the 

certifications or recognitions are clarified on the record, either 

through a stipulation or testimony, and if necessary, a designation 

of representative.) 

THE DESCRIPTION OF THE UNIT SOUGHT BY THE 

PETITIONER TO CONSOLIDATE THE ABOVE DESCRIBED 

EXISTING BARGAINING UNITS IS AS FOLLOWS: 

(describe proposed consolidated unit - see CHM 28.13 that 

discusses conforming units to Statutory exclusions ) 

If there are a significant number of units to consolidate, the Hearing 

Officer requires the parties to prepare a joint exhibit describing 

each of the units sought in the consolidation, showing the date of 

recognition or certification and attaching copies of the recognitions 

and certifications, if available.

Questions when the petition is not jointly filed (tailor if petition is 

jointly filed): 

MR./MS. .............., DOES THE ABOVE ACCURATELY DESCRIBE 

THE EXISTING BARGAINING UNITS WHICH ARE THE 

SUBJECTS OF THIS PETITION AND THE 

ACTIVITIES/AGENCIES' UNDERSTANDING OF THE 

CONSOLIDATED BARGAINING UNIT SOUGHT BY THE 

PETITIONER? 

MR./MS. .............., DOES THE ABOVE ACCURATELY DESCRIBE 

THE EXISTING BARGAINING UNITS WHICH ARE THE 

SUBJECTS OF THIS PETITION AND THE PETITIONER'S 

UNDERSTANDING OF THE CONSOLIDATED BARGAINING 

UNIT SOUGHT BY THE PETITION? 

35.7.5 Determinative challenged ballots: (see CHM 49) 

 This sample involves determinative challenged ballots. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

15

THE SOLE PURPOSE OF THIS HEARING IS TO DETERMINE 

THE BARGAINING UNIT ELIGIBILITY STATUS OF ( ... number of 

employees of -name activity/agency- and whose challenged ballots 

are determinative) EMPLOYEES IN ORDER TO RESOLVE THEIR 

DETERMINATIVE CHALLENGED BALLOTS. 

OF THESE DETERMINATIVE CHALLENGED BALLOTS, THOSE 

OF THE FOLLOWING EMPLOYEES WERE CHALLENGED BY 

THE (identify challenging party) BASED ON ITS CONTENTION 

THAT THESE EMPLOYEES ARE (e.g., supervisors, managers, 

etc.) WITHIN THE MEANING OF (cite applicable section of 

Statute): 

NAME POSITION DESCRIPTION TITLE

MR./MS. ..., HAVE I ACCURATELY IDENTIFIED THE 

EMPLOYEES WHOSE BALLOTS WERE CHALLENGED AND 

THE REASON FOR THOSE CHALLENGES .......? 

MR./MS. ..., DOES THIS ACCURATELY REFLECT THE (name of 

party) ....'S UNDERSTANDING REGARDING WHICH 

EMPLOYEES' BALLOTS THE ... CHALLENGED AND THE 

REASON FOR THOSE CHALLENGES? 

THE REMAINING DETERMINATIVE CHALLENGED BALLOTS, 

AS CAST BY ........(name of employees), WERE CHALLENGED 

BY THE ...... AS FOLLOWS: 

 NAME POSITION DESCRIPTION TITLE REASON 

FOR 

CHALLENGE

MR./MS. ......., HAVE I ACCURATELY IDENTIFIED THE 

EMPLOYEES WHOSE BALLOTS WERE CHALLENGED AND 

THE REASONS FOR THOSE CHALLENGES BY THE ............? 

MR./MS. ........., DOES THIS ACCURATELY REFLECT THE ....'S 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

16

UNDERSTANDING REGARDING WHICH EMPLOYEES' 

BALLOTS THE ... CHALLENGED AND THE REASONS FOR 

THOSE CHALLENGES? 

IF THE REGIONAL DIRECTOR, OR ULTIMATELY, AS 

APPLICABLE, THE AUTHORITY, DETERMINES THAT FOR 

PURPOSES OF THE FEDERAL SERVICE LABORMANAGEMENT RELATIONS STATUTE, ANY OF THE 

EMPLOYEES WHO CAST DETERMINATIVE CHALLENGED 

BALLOTS ARE, IN FACT, ELIGIBLE TO VOTE IN THE 

ELECTION HELD IN THIS CASE, THOSE ELIGIBLE 

EMPLOYEES' BALLOTS WILL BE OPENED AND COUNTED 

TOGETHER WITH THE OTHER ELIGIBLE EMPLOYEES WHO 

CAST BALLOTS IN THE ELECTION. A REVISED TALLY OF 

BALLOTS WILL THEN BE PREPARED, REFLECTING THEIR 

DESIRE ON THE QUESTION OF REPRESENTATION. 

MR./MS. ........., DOES MY DESCRIPTION OF THE PURPOSE OF 

THIS HEARING ACCURATELY REFLECT THE ACTIVITY'S 

UNDERSTANDING OF THE MATTERS AT ISSUE IN THIS 

PROCEEDING? 

MR./MS. .........., DOES MY DESCRIPTION OF THE PURPOSE 

OF THIS HEARING ACCURATELY REFLECT THE UNION'S 

UNDERSTANDING OF THE MATTERS AT ISSUE IN THIS 

PROCEEDING? 

35.7.6 Timeliness issues: This issue is always addressed in a hearing 

involving a petition that seeks an election. Even if timeliness is not 

an issue in dispute, the following questions are asked so that the 

issue is resolved and cannot be raised later (see HOG 32.10 and 

48, RCL 12). 

DOES ANY PARTY CONTEND THAT THERE IS A BAR TO AN 

ELECTION IN EITHER OF THE PETITIONED-FOR UNITS IN 

THESE CASES BASED ON AN AGREEMENT, PRIOR 

ELECTION, OR CERTIFICATION? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

17

MR./MS. ................, WHAT IS THE POSITION OF THE LABOR 

ORGANIZATION YOU REPRESENT ON THIS ISSUE? 

MR./MS. ................, WHAT IS THE POSITION OF THE 

ACTIVITIES ON THIS ISSUE? 

 If timeliness is not an issue, it may be stipulated as a nonissue: 

IT IS HEREBY STIPULATED BY ALL PARTIES THAT THERE IS 

NO BAR TO AN ELECTION IN THIS CASE BASED UPON AN 

AGREEMENT, PRIOR ELECTION OR CERTIFICATION. 

If timeliness is an issue, the Hearing Officer frames the issue in the 

form of a stipulation of an issue to explore at the hearing (see HOG 

32.13). The following is an example of a stipulation reached at a 

hearing where timeliness is the sole issue: 

THE SOLE ISSUE RAISED BY THE SUBJECT PETITION FOR 

PURPOSES OF THIS HEARING IS WHETHER AN ELECTION IN 

THE PROPOSED UNIT IS BARRED BY A COLLECTIVE 

BARGAINING AGREEMENT. THERE ARE NO OTHER ISSUES 

WHICH WOULD PRECLUDE AN ELECTION BEING HELD IN 

THIS CASE. 

35.8 Alternative unit(s): If appropriate to the issues, the Hearing 

Officer asks the petitioner if there are any alternative units for which 

the petitioner is willing to seek representation through an election. 

As noted in HOG 32.11, the Hearing Officer reminds the petitioner, 

that any alternative unit must be supported by the showing of 

interest that has already been submitted. If the petitioner seeks to 

amend the petition, additional showing of interest is submitted with 

the amendment and the petitioner must be specific as to the scope 

of the unit. U.S. Department of the Interior, National Park Service, 

Washington, DC, 55 FLRA 311 (1999). HOG 18.7.6.

The Hearing Officer asks the parties for their positions on 

alternative units at both the beginning and the end of the hearing. 

The point is to make sure the record contains sufficient evidence 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

18

for the Regional Director to make a decision on the 

appropriateness of the alternative unit.

35.9 Receiving stipulations: (see HOG 10.2.4, 26, and 32.12)

 The following is an example of a stipulation for a non-issue: 

IN AN OFF-THE-RECORD DISCUSSION, THE PARTIES 

AGREED TO THE FOLLOWING STIPULATION: 

THE PARTIES HEREBY STIPULATE THAT NO INDIVIDUAL UNIT 

ELIGIBILITY MATTERS ARE AT ISSUE FOR PURPOSES OF 

THIS HEARING AND THAT NO INDIVIDUAL ELIGIBILITY 

DISPUTES STAND IN THE WAY OF PROCEEDING TO AN 

ELECTION SHOULD THE PETITIONED FOR UNITS SOUGHT BY 

THE PETITIONER IN THESE CASES, AS DESCRIBED ABOVE, 

BE FOUND APPROPRIATE FOR EXCLUSIVE RECOGNITION BY 

THE FEDERAL LABOR RELATIONS AUTHORITY. 

 IS IT SO STIPULATED? 

 

 Have the parties state their agreement with the stipulation. 

 THE STIPULATION IS RECEIVED. 

The following is an example of a factual stipulation for a 

supervisory position:

ON THE BASIS OF AN OFF-THE-RECORD DISCUSSION, 

THE FOLLOWING STIPULATION IS PROPOSED: 

IT IS HEREBY STIPULATED BY THE PARTIES THAT ... (name of 

person) IS A SUPERVISOR WITHIN THE MEANING OF SECTION 

7103(a)(10) OF THE STATUTE BASED ON HIS/HER AUTHORITY 

TO HIRE EMPLOYEES. ON THREE OCCASIONS S/HE HAS 

BEEN THE SELECTING OFFICIAL FOR MERIT PROMOTION 

ACTIONS INCLUDING...... (identify the positions and/or promotion 

announcements as well as the names of those hired). 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

19

IS IT SO STIPULATED BY THE ACTIVITY? 

BY THE PETITIONER? 

BY THE INTERVENOR? 

 THE STIPULATION IS RECEIVED INTO THE RECORD. 

Note that this stipulation includes a description of the legal 

conclusion agreed upon by the parties and a justification for that 

conclusion. 

The following is a sample stipulation where the parties agree that 

the testimony of one employee holding a particular position at a 

particular grade is representative of all employees holding that 

position at that grade: 

THE PARTIES STIPULATE THAT THE DUTIES PERFORMED BY 

(identify individual) ARE REPRESENTATIVE OF ALL ACTIVITY 

EMPLOYEES AT ISSUE IN THIS PETITION WHO HOLD THE 

POSITION OF (identify position title, series and grade). THE 

PARTIES FURTHER STIPULATE THAT THE DECISION 

REACHED BY THE REGIONAL DIRECTOR/AUTHORITY 

REGARDING THE BARGAINING UNIT ELIGIBILITY OF (identify 

same individual named in first sentence) WILL BE APPLIED TO 

DETERMINE THE BARGAINING UNIT ELIGIBILITY OF (identify 

all other employees at issue in the petition who hold the same 

position at the same grade). THESE EMPLOYEES ALSO HOLD 

THE POSITION OF (identify same position title, series, and grade 

name in the first sentence). 

 

NOTE: Using more than one employee as a “representative 

sample” defeats the purpose of the stipulation since the 

employees could contradict each other, necessitating 

expanding the testimony to include all employees in the 

disputed category. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

20

35.10 Outlining issues to explore at the hearing: Outline the issues to 

address at the hearing. These include issues identified by the 

Regional Director as crucial to resolution of the petition, even if the 

parties do not agree that they are relevant (see HOG 2, 3.7, 32.13, 

and 33.9).

 I WILL NOW OUTLINE THE ISSUES TO ADDRESS AT THIS 

HEARING: 

The Hearing Officer outlines the issues. 

If the Regional Director authorizes the Hearing Officer to make 

recommendations on the record, the Hearing Officer states: 

THE REGIONAL DIRECTOR HAS GIVEN ME DISCRETION TO 

MAKE RECOMMENDATIONS ON THE RECORD ON THE 

FOLLOWING ISSUES. 

If the Hearing Officer is not authorized to make recommendations 

on the record, the Hearing Officer states: 

I WILL NOT BE MAKING RECOMMENDATIONS ON THE 

RECORD IN THIS PROCEEDING. 

35.11 Summarizing the parties' positions: (see HOG 32.14) If not 

already placed into the record by this point, each party makes an 

opening statement summarizing its position on each issue raised 

by the petition as well as any other issue outlined by the Hearing 

Officer (see HOG 32.13). Note that in eligibility issues, the parties 

state their position on each disputed position.

MR./MS. ......., WHAT IS THE POSITION OF THE PETITIONER 

REGARDING THE.... ...... (state issue)? 

MR./MS. ....., WHAT IS THE POSITION OF THE ACTIVITY(IES) 

REGARDING THE .... .......(state issue)? 

35.12 Presentation of evidence: (see HOG 32.15) 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

21

WE ARE NOW READY FOR DISCUSSION AND EXAMINATION 

OF THE ISSUE(S) IN THIS CASE. 

 MR./MS. ........, YOU MAY PROCEED WITH YOUR FIRST 

WITNESS. 

Usually the Activity/Agency goes first. When the witness reaches 

the stand, the Hearing Officer administers the oath: 

DO YOU SWEAR THAT THE TESTIMONY YOU ARE ABOUT TO 

GIVE WILL BE TRUE AND CORRECT TO THE BEST OF YOUR 

KNOWLEDGE OR BELIEF? 

The Hearing Officer then asks the witness to state his/her name, 

position and business address (optional), and place of employment 

for the record. Once this information is provided, the Hearing 

Officer advises the Representative to proceed with the 

examination. 

See HOG 12 through 14, "Evidence," which addresses leading 

questions, relevancy, etc.; HOG 15 specifically concerns 

"Exhibits." 

35.13 Recommendations on the record: (see HOG 32.17). If the 

Hearing Officer is permitted to make recommendations on the 

record, the following is a guideline for ensuring the record reflects 

the issue, the recommendation and the basis for the 

recommendation. The Hearing Officer states: 

I WILL NOW MAKE MY RECOMMENDATIONS WITH RESPECT 

TO THE FOLLOWING ISSUES: (list issues) 

WITH RESPECT TO THE ISSUE OF .... , I WILL SUMMARIZE 

THE RELEVANT EVIDENCE: 

When summarizing the evidence, the Hearing Officer references 

testimony and documentation so that the reader of the record is 

able to refer directly to the evidence used to support the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

22

recommendation. 

DO ANY OF THE PARTIES HAVE ANY FURTHER FACTS. THIS 

INCLUDES ANY INFORMATION WHICH IS ON THE RECORD 

THAT I HAVE NOT SUMMARIZED ON ANY OTHER EVIDENCE 

THAT THE PARTIES WOULD LIKE TO ENTER INTO THE 

RECORD. NO ARGUMENT IS PERMITTED AT THIS TIME. 

The Hearing Officer allows the parties to reference evidence that 

the Hearing Officer did not summarize, but is already in the record 

and the party(ies) consider relevant. The Hearing Officer cannot 

permit the parties to place on the record new evidence without 

calling witnesses and/or introducing documentation. If the parties 

argue that the evidence cited by the Hearing Officer is incorrect, 

then the Hearing Officer notes the disagreement for the record, but 

does not engage in a discussion or argument of the merits. 

I WILL NOW GO OFF THE RECORD TO PREPARE MY 

RECOMMENDATION(S). I ANTICIPATE THAT I WILL REQUIRE 

APPROXIMATELY (minutes, hours or one day) (depending on the 

issues) ... WE WILL RESUME AT (state time). 

After hearing additional evidence, the Hearing Officer makes 

his/her recommendation. 

I RECOMMEND THAT THE REGIONAL DIRECTOR FINDS .... 

It is not sufficient to state simply that: “I am prepared to recommend 

that Ms. Smith is not a confidential employee... .” Any 

recommendation is supported by a factual summary, an analysis of 

the factors considered in making the recommendation and 

references to applicable case law, as appropriate. 

A PARTY IS NOT PERMITTED TO RESPOND TO THE 

RECOMMENDATION ON THE RECORD EXCEPT DURING THE 

CLOSING ARGUMENT OR, AFTER THE CLOSE OF THE 

HEARING, IN HIS/HER BRIEF. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

23

35.14 Before closing the record: Before making any 

recommendation(s), or in the absence of a recommendation, prior 

to closing the hearing, the Hearing Officer: 

a) reviews his/her notes to ensure that all issues raised prior 

to or during the hearing are dealt with on the record. If 

there are changes, the Hearing Officer notes on the record 

any regulatory requirements. 

b) asks the petitioner to amend the petition if the parties 

reached agreement on any issue on which the petitioner no 

longer seeks a Regional decision. 

c) reviews notes to identify whether evidence reveals that 

additional parties should be notified and given an 

opportunity to participate in the hearing. 

d) contacts the Regional Director to recommend 

postponement if the issues or parties change to allow for 

proper notification and preparation for the hearing. 

e) asks the parties to restate their positions to ascertain if any 

party wishes to change its 

position. 

35.15 Change of party position: Once the presentation of evidence has 

been completed, the Hearing Officer asks the parties whether, in 

light of the evidence received, they wish to make any changes to 

their respective positions on the issues. In addition, if applicable, 

the Hearing Officer also asks whether the parties would now agree 

to proceed to an election in the proposed unit or in an alternative 

unit (see HOG 32.19). 

If the petitioner states it is willing to proceed to an election in the 

event the Regional Director found ... unit appropriate, the Hearing 

Officer reminds the petitioner, that any alternative unit must be 

supported by the showing of interest that has already been 

submitted. If the petitioner seeks to amend the petition, additional 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

24

showing of interest is submitted with the amendment and the 

petitioner must be specific as to the scope of the unit. U.S. 

Department of the Interior, National Park Service, Washington, DC, 

55 FLRA 311 (1999). HOG 18.7.6 and 32.11.

 

IN LIGHT OF THE EVIDENCE PRESENTED, DO ANY OF THE 

PARTIES WISH TO CHANGE THEIR POSITION ON ANY ISSUE? 

IN LIGHT OF THE EVIDENCE PRESENTED, ARE THE PARTIES 

WILLING TO PROCEED TO AN ELECTION IN THE PROPOSED 

UNIT OR IN AN ALTERNATIVE UNIT? 

35.16 Additional matters: 

IS THERE ANYTHING FURTHER THAT EITHER OF THE 

PARTIES WISH TO PRESENT? 

35.17 Closing remarks: (see HOG 32.20 and 32.21) 

DOES EITHER OF THE PARTIES WISH TO ARGUE ORALLY AT 

THIS TIME? 

AT THIS TIME, SINCE NEITHER OF THE PARTIES DESIRES TO 

PRESENT FURTHER EVIDENCE IN THE ABOVE-REFERENCED 

CASE, I WILL MAKE THE FOLLOWING REMARKS. A PARTY 

DESIRING TO FILE A BRIEF IN THIS MATTER WITH THE 

REGIONAL DIRECTOR, ....... (provide address of the appropriate 

regional office) MUST FILE THE ORIGINAL AND TWO (2) 

COPIES WITHIN THIRTY (30) DAYS FROM THE CLOSE OF 

THIS HEARING. THE DATE OF FILING SHALL BE 

DETERMINED BY THE DATE OF MAILING INDICATED BY THE 

POSTMARK DATE. IF NO POSTMARK DATE IS EVIDENT ON 

THE MAILING, IT SHALL BE PRESUMED TO HAVE BEEN 

MAILED FIVE (5) DAYS PRIOR TO RECEIPT. IF THE FILING IS 

BY PERSONAL DELIVERY, IT SHALL BE CONSIDERED FILED 

ON THE DATE IT IS RECEIVED BY THE REGIONAL DIRECTOR. 

COPIES OF THE BRIEF SHALL BE SERVED ON ALL PARTIES 

TO THE PROCEEDING. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

25

REQUESTS FOR ADDITIONAL TIME IN WHICH TO FILE A 

BRIEF SHALL BE MADE TO THE REGIONAL DIRECTOR, IN 

WRITING, AND COPIES SHALL BE SERVED UPON THE OTHER 

PARTIES, AND A STATEMENT OF SUCH SERVICE SHALL BE 

FILED WITH THE REGIONAL DIRECTOR. REQUESTS FOR 

EXTENSION OF TIME SHALL BE IN WRITING AND RECEIVED 

NOT LATER THAN FIVE (5) DAYS BEFORE THE DATE SUCH 

BRIEFS ARE DUE. NO REPLY MAY BE FILED IN ANY 

PROCEEDING EXCEPT BY SPECIAL PERMISSION OF THE 

REGIONAL DIRECTOR. 

DOES EITHER OF THE PARTIES INTEND TO FILE A BRIEF 

WITH THE REGIONAL DIRECTOR, FEDERAL LABOR 

RELATIONS AUTHORITY, ....REGION? IF SO, BRIEFS ARE 

DUE TO THE REGIONAL DIRECTOR BY CLOSE OF BUSINESS, 

,_ . IS THERE ANYTHING FURTHER TO COME BEFORE THE 

HEARING OFFICER AT THIS TIME? LET THE RECORD SHOW 

NO RESPONSE. THE HEARING IS NOW CLOSED. 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

HEARING ON ELECTION OBJECTIONS 

HOG 36 

36 Hearings on election objections: 

36.1 General: To the extent they are adaptable, the procedures 

discussed previously also apply to hearings on objections to the 

procedural conduct of the election or to conduct which may have 

improperly affected the outcome of the election. However, there 

are substantial distinctions between hearings on objections and 

hearings on other representation matters. 

36.2 When hearings on election objections are appropriate: 

Hearings are conducted in election objections cases which involve 

material issues of fact which may have affected the results of the 

election or when the Regional Director determines that a hearing is 

a more expeditious and cost effective method to gather evidence 

on the objections rather than a field investigation. See also CHM 

50 and 51. 

36.3 Nature and objective: A hearing on objections is a formal 

proceeding designed to elicit information based on which the 

Regional Director makes a decision on the merits of the objections. 

While the objecting party bears the burden of proof pursuant to § 

2422.27(b) of the regulations, the proceeding is considered 

investigatory and not adversary. 

36.4 Participating Authority personnel: In cases where the 

objections involve the conduct of Authority personnel, the Regional 

Director has the discretion to assign an attorney, designated as 

Counsel for the Regional Office, to appear at the hearing. 

36.5 Hearing Officer: The Hearing Officer is usually an Authority 

agent from the Region in which the hearing is held, except: 

a) when an issue involves the conduct of an Authority agent 

and a hearing is directed by the Regional Director or the 

Authority; 

b) when the hearing is directed by the Authority concerning 

credibility findings by the Regional Director. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

There may be unusual circumstances that, in the Regional 

Director's judgment, warrant further exceptions to this procedure. 

In any event, all requests and arrangements for the procurement of 

a Hearing Officer from outside the region are cleared and made 

through the Office of the General Counsel. 

36.6 Functions and duties of the Hearing Officer: The Hearing 

Officer's duties and responsibilities are similar to those in other 

representation proceedings with two significant exceptions: 

a) a Regional Director has discretion only to allow the Hearing 

Officer to make recommendations on credibility issues, not 

the objections themselves. 

b) The second exception has to do with the scope of the 

hearing. The scope of the hearing is normally limited to the 

objections raised in the objecting party's initial filing with 

the region. An exception is when evidence is presented by 

a party which appears to demonstrate procedural election 

misconduct that was not raised by any party as an 

objection. See CHM 50.10 for other exceptions. 

 

Initial evidence to establish a prima facie case for each objection is 

obtained through witnesses and documentation provided by the 

objecting party. Thereafter, if the Hearing Officer determines that 

additional testimony and/or documentation regarding any objection 

is necessary, the Hearing Officer obtains that additional evidence. 

 

36.7 Counsel for the Regional Office, functions and duties: The 

primary function of 

Counsel, if one is 

utilized, is to see 

that evidence 

adduced by the 

region's 

investigation 

becomes part of 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

the record. 

Counsel may: 

a) voice objections, 

b) cross-examine, 

c) call and question witnesses, and 

d) call for and introduce appropriate documents. 

If the information in the Counsel's possession warrants it, s/he is 

permitted to seek to impeach the testimony of witnesses called by 

others. 

Counsel for the Regional Office does not offer new material until it 

is certain that the material will not be offered by one of the parties. 

It is important that Counsel exercises self-restraint and displays the 

appearance of impartiality. 

 

36.8 Credibility issues in election objections cases: This section 

concerns making recommendations on the record about credibility 

issues that may be dispositive of objections to an election. A 

Hearing Officer is required to make credibility recommendations on 

the record to give the parties an opportunity to except to the 

Hearing Officer‟s recommendation to the Regional Director. The 

Hearing Officer follows the outline described in HOG 32.17 and the 

HOG script 35.13 when making a recommendation.

This procedure provides the Regional Director with a complete 

record prior to making a decision on the merits: the evidence on the 

objections, the parties‟ positions, the Hearing Officer‟s 

recommendation on any credibility issue and the parties‟ responses 

to the credibility findings. 

36.8.1 When the Regional Director determines prior to a hearing that 

a credibility determination is dispositive of an objection: 

When the Regional Director determines prior to issuing a notice of 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

hearing that a credibility determination is a prerequisite for making 

a decision on the objection, the Regional Director issues a notice of 

hearing pursuant to § 2422.17 of the regulations which includes: 

36.8.1.1 the particular credibility issue which is dispositive of the 

objection; and 

36.8.1.2 a direction to the Hearing Officer to make 

recommendations on the record regarding the resolution of the 

credibility issue with supporting reasons. 

The Notice of Hearing puts the parties on notice that a credibility 

issue is dispositive of one or more of the objections and also 

informs the parties that they may except to the ruling in their briefs 

to the Regional Director. 

 

36.8.2 When the Regional Director is unsure that there is a credibility 

issue: 

36.8.2.1 The Notice of Hearing includes a statement that in the 

event a credibility issue surfaces that is dispositive of one or more 

of the objections, the Hearing Officer will make a recommendation 

on the record regarding the credibility issue(s). The Notice also 

informs the parties of their right to except to the Hearing Officer‟s 

recommendations in their briefs to the Regional Director. This 

notifies the parties of how credibility issues will be handled in the 

event they become an issue at the hearing. 

36.8.2.2 The Regional Director has two options when preparing the 

Hearing Officer for a hearing involving objections to an election and 

is not aware that there is a credibility issue:

a. The Regional Director may require the Hearing Officer to 

contact him/her if the Hearing Officer decides during a 

hearing that a credibility determination is dispositive of an 

objection. The Hearing Officer does not discuss the merits 

of the credibility issue with the Director. 

b. Prior to the hearing, the Regional Director may instruct the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

Hearing Officer to make recommendation on credibility 

issues that surface during the hearing and are dispositive 

of the objection(s) without contacting him/her first. 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

EVIDENTIARY ISSUES 

HOG 37 through HOG 50 

37 Appropriate unit determinations

Any case that concerns a question of representation requires an 

appropriate unit determination prior to proceeding to other issues. 

Section 7112(a) of the Statute sets out the criteria for determining 

whether a unit is an appropriate unit for exclusive recognition: 

 The Authority shall determine the 

appropriateness of any unit. The Authority shall 

determine in each case whether, in order to ensure 

employees the fullest freedom in exercising the 

rights guaranteed under [the Statute], the 

appropriate unit should be established on an 

agency, plant, installation, functional or other basis 

and shall determine any unit to be an appropriate 

unit only if the determination will ensure a clear 

and identifiable community of interest among 

the employees in the unit and will promote 

effective dealings with and efficiency of the 

operations of the agency involved. 

 

A. Standard: The Authority will not find any unit to be appropriate for 

exclusive recognition unless the unit meets all three of the criteria 

set out in section 7112(a). In order for a unit to be found 

appropriate the evidence must show that: 

a) the employees in the unit share a clear and 

identifiable community of interest; 

 b) the unit promotes effective dealings with the agency; and

 c) the unit promotes efficiency of the operations of the 

agency. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

See United States Department of the Navy, Fleet and Industrial 

Supply Center, Norfolk, Virginia, (FISC, Norfolk), 52 FLRA 950 

(1997) citing Defense Mapping Agency, Aerospace Center, St. 

Louis, Missouri, 46 FLRA 502 (1992).

B. Community of Interest: 

Community of interest involves a commonality or sharing of 

interests between the employees in a unit. Its fundamental 

premise is to ensure that it is possible for the employees to deal 

collectively with management as a group. Department of 

Transportation, Federal Aviation Administration, Southwest Region, Tulsa 

Airway Facilities Sector (Tulsa AFS), 3 FLRC 235, 237 (1975)A Policy for 

Employee-Management Cooperation in the Federal Sector, 

November 30, 1961 

39

40

41

42FISC, Norfolk, 52 FLRA at 961. 

In addition, such factors as: 

43 geographic proximity; 

44 unique conditions of employment; 

45 distinct local concerns; 

46 degree of interchange between other organizational 

components; and 

47 functional or operational separation 

may bear upon whether employees in the unit share a community 

of interest. See : 

Effective dealings and efficiency of operations factors are 

considered and decided as separate factors in any case which 

raises appropriate unit issues. The Authority requires that each of 

the appropriate unit criteria be given equal weight in order to foster 

the goal of a more effective and efficient government. Moreover, 

as first clarified by the Federal Labor Relations Council (FLRC), the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

Authority must affirmatively determine that any proposed unit of 

exclusive recognition satisfies each of the three criteria before that 

unit can properly found to be appropriate.FISC, Norfolk, 52 FLRA 

at 961, n. 6.

These factors, therefore, are not dependent on the community of 

interest criteria, but often assess the same evidence on the record 

from a different perspective(s). See Department of the Navy, Naval 

Computer and Telecommunications Area, Master Station-Atlantic, 

Base Level Communications Department, Regional Operations 

Division, Norfolk, Virginia, Base Communications Office -

Mechanicsburg, 56 FLRA 228 (2000) (the Authority found that the 

Regional Director did not separately evaluate and make explicit 

findings with respect to each of the criteria). 

 

Effective Dealings

Effective dealings pertains to the relationship between 

management and the exclusive representative selected by unit 

employees in an appropriate bargaining unit. In assessing this 

requirement the Authority examines such factors as: 

< the efficient use of resources which might be derived from inclusion 

in other units; 

< the past collective bargaining experience of the parties; 

< the locus and scope of authority of the responsible personnel office 

administering personnel policies covering employees in the 

proposed unit; 

< the limitations, if any, on the negotiation of matters of critical 

concern to employees in the proposed unit; and 

< the level at which labor relations policy is set in the agency. See 

Department of Transportation, Washington, D.C. (DOT), 5 FLRA 

646 (1981); Defense Supply Agency, Defense Contract 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

Administration Services Region (DCASR), San Francisco, 

California, et al., 4 FLRC 669 (1976); Department of State, 

Passport Office, Chicago Passport Agency, Chicago, Illinois 

(Chicago Passport Agency), 8 A/SLMR 946 (1978). 

Efficiency of Operations 

Efficiency of operations concerns the benefits to be derived from a 

unit structure bearing a rational relationship to the operations and 

organizational structure of the agency. DCASR, 4 FLRC 669

(1976). Factors examine the effect of the proposed unit on agency 

operations in terms of cost, productivity and use of resources. 

 

D. Impact of the Concept of Fragmentation on Unit 

Determinations:

When considering the three criteria in making appropriate unit 

determinations, the Authority decides appropriate unit questions 

consistent with the policy of preventing further fragmentation of 

bargaining units and reducing existing fragmentation, thereby 

promoting a more comprehensive bargaining unit structure.Army 

and Air Force Exchange Service, Dallas, Texas (AAFES), 5 FLRA 657, 

661-662 (1981): 

The information needed to make appropriate unit determinations is 

addressed in the three attached outlines. The outlines are 

provided to assist in obtaining a complete record. The first outline 

(Representation Outline I) is suitable to give to the parties to 

assist them in preparing for a hearing. The second 

(Representation Outline II) is a briefer version - THAT IS NOT 

GIVEN TO THE PARTIES- and is for the Hearing Officer to use 

to determine which areas to stress in a particular case. The 

third (Representation Outline III) is a very basic outline of the 

evidence required in cases involving appropriateness of unit; 

it is intended as a skeleton for use in developing a more 

detailed outline for a specific case. These outlines are repeated 

as Figures 37.1 - 37.3 and are available on the n:\figures 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

subdirectory. 

These generic outlines will not suit every case. For example, 

Representation Outline I refers to agencies and activities, while the 

case at issue may involve facilities within an activity, departments 

within an activity or other sub-components of agencies and 

activities. The Hearing Officer uses these materials as guidance in 

crafting a specific outline for the case at hand. 

 

Although specific questions may differ from case to case, none of 

the topics addressed in the outlines is ignored. For example, if a 

petition seeks a unit at an activity level, there may be only one 

mission statement pertinent to the case at hearing, and there may 

be no interrelationship between an activity and an agency to 

explore on the record. The Hearing Officer still obtains for the 

record, the mission statement, a description of the agency's 

functions and testimony regarding the relationship of the agency to 

the activity. Similarly, in an election case involving a unit within an 

activity, an activity organizational chart may be relevant to reflect 

the organizational framework, location of employees within the 

organization, what each component does, etc. 

The Hearing Officer errs on the side of obtaining more information 

than is strictly necessary, rather than risking the creation of a 

record which is missing a crucial fact needed to make a reasoned 

decision in the matter. A seemingly insignificant piece of 

information may be the deciding factor in the case. Such minute 

factors as control of parking at a military base or the price setting 

procedure in a retail operation may go to the heart of the inquiry as 

to community of interest or effective dealings. Once again, a 

generic outline cannot possibly address every such possible factor, 

but can be used as a guideline for developing an outline that goes 

to the specifics of a particular case. 

For detailed guidance on this topic see RCL 1.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

REPRESENTATION OUTLINE I

 (TO ASSIST PARTIES IN PREPARING FOR HEARING) 

1. BASIC REQUIREMENTS

A. Evidence

1. Standards. Assertions by the parties are not 

evidence. Evidence is established through the 

testimony of witnesses, stipulations and exhibits 

admitted into the record. 

2. Necessity. At the prehearing conference and 

during the hearing, the Hearing Officer will 

determine the necessity of the testimony of 

proposed witnesses and proposed exhibits and will 

identify additional witnesses whose testimony is 

required and additional exhibits necessary to a 

complete record. 

B. Witnesses

1. Standards. The parties present witnesses who 

can testify to and answer questions concerning all 

facts and issues raised by the petition(s). 

2. Necessity. All participants deemed necessary by 

the Hearing Officer will receive official time under 

section 7131 of the Statute. Any disputes over 

necessity of participants will be decided by the 

Hearing Officer. 

3. Knowledge. Witnesses testify to and answer 

questions about their personal knowledge of the 

facts. Second-hand, third-hand or lesser 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

knowledge reduces the relevance of the testimony. 

4. Reference to record. All testimony during the 

hearing refers to specific exhibits which have been 

introduced into the record. 

 5. Stipulations. All stipulations are based on fact 

and include information and exhibits, as necessary, 

establishing the facts of the matter and/or 

referencing exhibits already received in the record 

which support the factual basis of the stipulation. 

C. Testimony

1. Standards. Witnesses testify to and answer 

questions about their personal knowledge of the 

facts and documents relevant to the issues of the 

case. When testifying about documents, the 

witnesses are generally those who authored or 

initiated the documents. 

 

2. Availability. If witnesses with personal knowledge 

are not readily available, the parties identify those 

with direct knowledge and also name additional 

witnesses whose personal knowledge most nearly 

approximates the direct testimony described 

above. 

 3. Identification. The parties name all of their 

respective witnesses and the subjects about which 

each witness will testify prior to the prehearing 

conference. This allows the Hearing Officer to 

determine the necessity of the proposed testimony 

of these witnesses. 

D. Documents
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

 1. Standards. Documents may be accepted into the 

hearing record by joint submission, by stipulation of 

the parties, or by one of the parties. 

 

2. Identification and authentication. Any exhibit 

introduced by a party is identified by and testified 

to by a witness or witnesses who has\have firsthand knowledge of the authenticity of the exhibit, 

the content of the exhibit, and factual matters 

concerning the exhibit. 

3. Regulations. If a party proposes to introduce 

excerpts from agency regulations, the excerpts are 

authenticated as true and correct copies. In 

addition, if only a portion from a regulation is 

submitted, a copy of the whole regulation is 

available for review by the parties. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

4. Joint exhibits. If the parties jointly introduce 

exhibits, all such exhibits may be referred to by 

witnesses and/or in briefs. 

5. Objections. Any party objecting to the 

introduction of evidence should state the basis for 

the objection on the record. The Hearing Officer 

then allows the party proposing introduction of the 

evidence an opportunity to state a position. The 

Hearing Officer then rules on admissibility. 

Exceptions to overruled objections are 

automatically a part of the record. Thus, there is 

no need for the parties to state such exceptions. 

6. Stipulations. Stipulations concerning the 

introduction of exhibits includes information 

demonstrating the factual basis of the stipulation 

and the relevance of the document. 

2. MISSION AND FUNCTION STATEMENTS

A. Mission. Agency statement of its basic mission. Activities' 

statements of basic mission(s). 

 

B. Function. Description of how each Activity functions (as 

needed). 

1. Differences. If a proposed unit involves 

employees of a particular Activity but a party 

asserts that the unit is broader or narrower, basic 

mission statements of all entities is entered into the 

record and testified to. 

2. Mission and function. Testimony is required from 

witness(es) knowledgeable about the mission and 

function of each Agency and Activity and the 

interrelationships between them. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

3. Exhibits. Obtain for the record copies of the 

mission and function statements from all affected 

Agencies, Activities/organizational components. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

11

3. ORGANIZATION

A. Charts. Organizational charts of Agency and Activity(ies), 

updated as necessary. 

B. Identification. Testimony concerning which Activity(ies) 

employ the employees involved in the petition and where in 

the organization the employees are located is crucial. 

C. Commonality. Testimony is required concerning shared 

mission and functions of organizations in which employees 

involved in the position are employed. Testimony 

specifically identifies where in those organizations the 

employees are located. 

D. Geographic - Physical Location.

1. Organization. What are the geographic locations 

in relation to the organization of the Activities? Do 

Activities have field organizations? Where? 

2. Function. Testimony matches the mission and 

function statements to the organizational charts, 

thereby showing each Activity's function and 

relationship to others. What is the organizational 

framework, beginning with the major organizational 

components and working down the chart? What 

does each component do? Similarities? 

Differences? Interrelationships? 

3. Location. Where are each of the employees 

involved in the petition physically located? How far 

are the separate locations from each other? 

Describe any interchange of work and employees 

between locations. 

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

12

4. Numbers. Obtain information concerning the 

numbers and types of employees at each agency / 

activity / organizational component. This can be 

established by having the Agency prepare an 

employee listing reflecting each employee‟s 

organizational placement, job title, series and 

grade, and unit eligibility. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

13

4. DELEGATIONS OF AUTHORITY

What authority has been delegated for bargaining, management, 

supervision, policy, procedure, regulation, administration, and 

personnel functions? At what level do these delegations exist? 

What is the effect of these delegations? 

5. BARGAINING HISTORY

A. Incumbents. Obtain the complete name of each exclusive 

representative and description of each unit at each Activity. 

B. Units. Obtain copies of certifications/recognitions for each 

unit. 

C. Contracts. Obtain copies of the most recent collective 

bargaining agreements for each unit. What is the status of 

each such agreement, including the status of any 

negotiations? 

D. Dealings. What is the history of former or existing 

recognitions, including information as to elections, 

certifications and contracts. Obtain copies of all 

certifications, letters of recognition and contracts, for the 

proposed unit(s) and any other existing units of the agency. 

When were elections held, what groups of employees were 

involved and how many employees were affected? Did 

contracts automatically renew? At what level were 

negotiations held, both term negotiations and impact 

negotiations? 

6. SUPERVISORY HIERARCHY

A. Structure. What is the supervisory structure at the Agency 

and at each Activity (as relevant) and the lines of 

supervisory authority within each Activity (and/or between 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

14

Activities), using the organizational chart(s)? 

B. Nature. What is the extent and nature of supervisory 

duties and responsibilities within or between Activities? 

Who reports to whom? Who is responsible for specific 

supervisory functions within or between Activities? 

C. Control. Is supervision centrally or locally controlled within 

the organizational structure? Are there differences in the 

supervisory controls between the Activities involved? Are 

supervisors responsible for common supervision over more 

than one work group? 

7. JOB FUNCTIONS AND SKILLS

A. Positions. Obtain copies of the position descriptions for 

the categories of employees involved in the petition. 

B. Employees. The Activity is required to compile listing(s) of 

all employees involved in the petition which show each 

employee's name, position title, classification, grade and 

location within the organization. Include a numerical table 

showing total numbers of employees by eligibility in each 

proposed unit. 

C. Work. Evidence includes the types of work performed by 

employees involved in the petition, including descriptions of 

job duties and actual work performed, the flow of work 

within and between Activities, and the qualifications and 

training necessary to perform the work. 

D. Equipment. Is special equipment needed to perform 

certain work? Where is this equipment located? Is training 

needed to operate the equipment? What is the availability 

of such training? Are opportunities for advancement 

and/or movement between positions affected by the 

availability of this equipment or training? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

15

 

E. Differences. How do work flow, job duties and/or 

necessary qualifications, equipment and training differ 

within and between Activities? 

8. INTEGRATION OF OPERATION AND INTERCHANGE OF 

EMPLOYEES

A. Movement. Testimony and documents showing personnel 

movement, policy and decision making flow, using 

organizational charts. 

B. Commingling. Whether and how employees and 

functions are commingled among different organizations 

within and between Activities. 

C. Commonality. Whether and in what ways components of 

the Activities have employees, supervisors and/or 

managers in common, identifying the individuals involved 

using the organizational charts, employee listings, position 

descriptions, etc. 

D. Work flow. What is the flow of work processes, duties and 

responsibilities in relation to the mission(s)? Is there 

interrelationship or interdependence between components 

in work flow, processes or responsibilities? 

 E. Integration. In what ways are employees and their job 

functions integrated within and between Activities? Are 

there frequent transfers of work and/or personnel? How is 

this accomplished? How is the work coordinated within 

and between Activities? Are employees required to apply 

for openings to cross organizational lines? 

F. Operations. Is there employee contact between 

components in performing or transferring work? What is 

the relative isolation of components? Obtain a description 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

16

of mobility and interchange of employees between 

components. What is the extent of telephone contact or 

inter-component visits? What for? By whom? How often? 

Where to and from? How many people involved? 

Clearance necessary from another component to perform 

certain work? 

G. Interchange. Who substitutes for employees' absences 

for vacation or illness? Over the prior year or so, what is 

the extent, purpose and duration of TDY assignments? 

What category/classification of employee(s) have gone on 

this travel and for what purpose? Within the past three 

years, how many permanent or temporary transfers were 

made laterally or by promotion? What 

category/classification of employee(s) were transferred and 

for what reason? Have the numbers of transfers increased 

or decreased ? If so, why? 

9. PERSONNEL POLICIES AND PRACTICES 

A. Pay systems. Description of the pay systems applicable 

to all of the employees involved (GS, WG, Excepted 

Service, NAF, etc.), including descriptions of the 

differences between pay systems. 

B. Payroll office. Location of servicing payroll office? 

Placement within the organizational structure? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

17

C. Administrative Services

 1. Personnel services. Location of servicing 

personnel office? How is the personnel office 

staffed? Placement within the organizational 

structure? Who handles personnel management? 

Where does personnel management fit within the 

organizational structure? If there is more than one 

personnel office, are there differences in authority 

between personnel offices? 

 2. Personnel actions. Are personnel actions done 

centrally or locally? Who decides on hiring, firing, 

promotion, transfer, layoff, and recall of 

employees? How are these actions accomplished 

and these actions processed? Where do the 

entities performing these functions fit within the 

organizational structure? 

 3. Employment and classification authority. Who 

has classification authority for the employees 

involved in the petition? Who decides to establish 

positions, to fill vacancies, and what skills or 

training are needed for a position? How are 

vacancies filled? What are the differences within 

or between Activities? 

 4. Retention, promotion and RIF. What are the 

areas of consideration? How were these 

established? How have they been applied 

recently? What are the differences within and 

between Activities? 

 5. Disciplinary and adverse action. Who has 

authority to propose and decide such action? 

What are the differences within or between 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

18

Activities? 

 6. Personnel policies and regulations. Are 

personnel regulations promulgated centrally or 

locally? What are the differences within and 

between Activities? To what extent do local 

officials have any discretion with respect to 

implementing policies and regulations initiated 

centrally? 

D. Personnel changes. How are personnel moved between 

non-supervisory positions? From non-supervisory to 

supervisory positions? What are the differences in the 

ways changes are accomplished within and between 

Activities?

 

E. Employee services. At what level are programs 

administered for equal employment, employee assistance, 

upward mobility, disability and workers compensation 

benefits, individual development, retirement, and health 

and life insurance? What are the differences in these 

programs within and between Activities? 

F. Conditions of Employment

 1. Hours. What are the hours of work of employees 

affected by the petition? Alternative Work 

Schedules, including whether employees work 

flexible schedules and/or compressed work 

weeks? Compensatory time? Starting and quitting 

times? Core hours? Restrictions on days off? 

Lunch hours? Break times? How were these 

established? What are the differences within and 

between Activities or organizations within each 

Activity? 

 2. Training. What training is required and/or available 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

19

for the employees involved in the petition? What 

are the differences in training within and between 

Activities? 

 3. Personnel. At what level is the authority for 

personnel policy, service, and/or action? At what 

level are employee service programs provided? 

What are the differences in programs, services, 

and levels of authority within and between 

Activities? 

 4. Associations. At what level do associations exist 

such as Credit Unions, athletic, health or wellness 

groups, blood drives, literacy projects, and/or 

public school sponsorship? What are the 

differences within and between Activities? 

 5. Impact. All parties state specific positions 

concerning impact of the possible unit findings. 

What impact on the Agency/Activity is there from 

the various possible unit findings? What is the 

impact on employees? 

6. Factors. What are the areas of consideration for 

hiring, promotion and RIF? Who issues vacancy 

announcements? Who has the authority to hire, 

fire, lay off, transfer or promote? Who determines 

the compensation and salary structure for 

vacancies? Where are the OPF's maintained? 

Who rates performance and writes appraisals? 

Who reviews and approves the appraisals? Who 

has the authority to initiate disciplinary or adverse 

action? Who has the authority to issue travel 

orders, direct training of employees, grant incentive 

and achievement awards? Who assigns parking, 

determines break and leave schedules, approves 

leave, overtime and compensatory time? Who 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

20

initiates personnel actions, personnel management 

programs, standards for performance evaluation 

and/or standards of personal conduct? Who 

determines the budget or is responsible for 

meeting a budget? Who has authority to negotiate 

and execute a collective bargaining agreement? 

 

10. EFFECTIVE DEALINGS

Efficient use of resources derived from inclusion in existing units 

and negotiation in one unit rather than many units in segments of 

the activities. 

 

A. History. What is the history of collective bargaining 

dealings under the existing unit structure(s)? How have 

labor relations policy and labor relations authority been 

implemented and exercised respectively? 

B. Grievances. What are the formal, informal, negotiated 

and activity grievance procedures for employees involved 

in the petition? What is the past history of grievance 

processing? 

C. Units. In what way would the proposed units involved in 

the petition affect existing bargaining and grievance 

procedures? The parties are required to state their 

positions as to how the proposed units would promote 

effective dealings. 

D. Authority. What is the locus and scope of responsible 

personnel office(s)? Who handles the various personnel 

functions at present? How would the existence of the 

proposed units affect this authority? Are the employees 

involved special or unique because of job duties or work 

location in a manner which could affect the 

appropriateness of unit. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

21

E. Limitations. What is the extent of and who has authority 

to negotiate? What limitations are there on the authority of 

the petitioned-for Activity to negotiate? Are there any 

matters which could be negotiated if the unit were different 

from that proposed in the petition? Are there matters 

which could be negotiated only if the unit structure were 

different from that proposed? Why is this so? 

F. Expertise. What is the likelihood that personnel with 

greater labor relations experience will be available in the 

existing unit, the proposed unit or other possibly 

appropriate units? Who currently handles labormanagement relations? Where in the organizational 

structure does this exist? At what level is labor relations 

consultation and support provided? 

G. Policy. At what level is labor relations policy set? How 

does the existence of multiple negotiated agreements, 

bargaining obligations, and grievance procedures affect 

labor relations dealings? Are employees performing 

essentially the same functions currently covered by 

different systems? 

H. Training. How and by whom are supervisors and 

managers trained in labor relations? Who decides on 

training requirements and those needing training? Where 

are the trainers located? 

11. EFFICIENCY OF AGENCY OPERATIONS

Benefits to be derived from a unit structure bearing a rational 

relationship to the operational and organizational structure of the 

Activity. 

 

A. Organization. What, specifically, are the structure, chain 

of command, line of authority, and uniformity of personnel 

policy and practice considerations supporting the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

22

effectiveness of the various proposed units? 

B. Structure. What are the organizational structure, 

supervisory hierarchy, chain of command, authority over 

work functions, personnel and labor relations policies and 

dealings? Who reports to whom? What is the 

organizational structure of the personnel staff? 

C. Authority. Do personnel with operational authority also 

have labor relations authority? What are the differences 

within and between Activities? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

23

D. Benefits. Why would any proposed unit be more 

beneficial than another proposed unit? How do the 

personnel policies and job benefits of employees differ 

within and between Activities? 

E. Resources. How is the effective use of negotiation 

resources derived from the existing unit structure? How 

would the proposed units affect the use of these 

resources? What effect would the various proposed units 

have on cost of the labor-management program, hours 

spent administering the program, staffing requirements, 

etc. 

F. Impact. 

1. Views. What are the parties' views of the impact 

of the proposed and/or other potentially 

appropriate units on efficiency of operations or the 

effectiveness of dealings? 

2. Agency operations. What is the impact of the 

proposed unit structure on agency operations in 

terms of cost, productivity and use of resources? 

 a. Cost. What savings or 

costs (in terms of labor relations 

personnel, productivity, etc.) result from 

the existing unit(s), proposed unit(s) or 

other possibly appropriate units? What 

effect would the proposed unit(s) have on 

the cost of the labor-management relations 

program, hours spent administering the 

program, staffing requirements, etc.? 

 b. Productivity. What 

impact on productivity would result from 

the existing unit(s), proposed unit(s), other 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

24

possibly appropriate unit(s), or the 

existence of one or several units. 

Productivity includes work performed by 

employees as it affects them if one unit 

were found appropriate versus several and 

work performed by the managerial, 

supervisory and labor-management staff. 

G. Fragmentation. Would the proposed unit result in 

fragmentation? If so, how, and how would this affect 

agency operations? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

25

REPRESENTATION OUTLINE II

(IDENTIFYING AREAS TO STRESS) 

 (note this particular outline is, in some respects, an example of 

 an outline for a case involving a reorganization) 

1. MISSION

Formal mission statements from former and new Activities. 

Testimony includes changes in mission and function as well as 

effect on organizational structure. 

 What effect do mission changes have on unit function(s)? 

2. ORGANIZATION

A. Charts

 

 Before and after charts 

 Overall structure 

 Complete branch-by-branch structure, including 

information as to what functions performed before and after 

Description of work flow and flow of authority before and 

after reorganization 

B. Numbers

 Number of unit employees in old and new 

organizations. How many employees were directly 

affected by the reorganization? 

 Types of personnel actions used to staff new 

organization; what placements were used? Transfers? 

Requirement to apply for positions in new organization? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

26

C. Geography

 What was the physical lay-out before and after? 

Where were the employees located before and after the 

reorganization? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

27

3. BARGAINING HISTORY

Copies of collective bargaining agreements. What are the effective 

and termination dates? What is the status of each contract? What 

is the status of negotiations, if any? 

 Copies of certification/recognition for each unit involved in the 

petition. 

 History of negotiations at former and present Activities. 

4. SUPERVISORY HIERARCHY

Employee break down before and after, including lists of 

employees by name, position title, classification, grade and 

organizational placement. 

Supervisory structure, including numerical ratios to employees 

before and after the reorganization. Numbers and classifications of 

employees reporting to each supervisor. 

Is supervision controlled locally or centrally? What is the nature 

and extent of supervision in terms of the organizational structure 

before and after? What chains of command and lines of authority 

existed before and after the reorganization? 

5. JOB FUNCTIONS AND SKILLS

Before and after lists of employees by name, position title, 

classification, grade and organizational placement. Testimony 

concerning ratios of GS, WG, Excepted Service, NAF, etc., 

employees. 

Description of before and after job duties. Are there new functions, 

duties and employees? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

28

Following the reorganization, are employees performing the same 

work under the same conditions of employment? If no, what are 

the specific changes? 

What was the actual impact of the reorganization on the affected 

employees? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

29

6. INTEGRATION AND INTERCHANGE

What facilities and equipment existed before and after the 

reorganization? 

Detail any changes to the agency functions and employee 

interdependence of work functions following the reorganization. 

Detail the effect, if any, of the reorganization on interchange 

between organizational entities, work locations of employees and 

intra-employee dealings/work relationships. 

Prior to the reorganization, did units have any employees, 

supervisors or managers in common? If so, did this change as a 

result of reorganization? What were the changes and how did they 

affect the employees' day-to-day dealings within and between the 

Activities? 

7. TRANSFERS

 How were employees notified of the reorganization? 

Were special placement programs used in the reorganization? If 

so, what were they and how did they affect employment in the 

current organization? 

Before and after lists of employees by name, position title, 

classification, grade, organizational placement and type of 

appointment? 

8. PERSONNEL POLICIES AND PRACTICES

List of employees by name, position title, classification, grade and 

organizational placement, before and after. 

Pay. What were the compensation plans (GS, WG, excepted 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

30

service, NAF, etc.) of employees before and after the 

reorganization? What was the basis for these systems? Where is 

the payroll office located and did it change in reorganization? 

Personnel. Is hiring, firing, promotion, transfer, layoff, or recall 

controlled centrally or locally? Has this changed in reorganization? 

Employment and Classification Authority. What were they 

before and after? 

Promotion and RIF. Where did authority lie before and after 

reorganization? What were the areas of consideration before? 

What are they now? 

Bargaining. History of bargaining and the level of bargaining 

before and after the reorganization. 

Personnel Services. Physical location of the servicing personnel 

office before and after the reorganization. Obtain evidence on the 

services that were/are provided and whether the personnel 

authority was/is local or central. 

9. CONDITIONS OF EMPLOYMENT

 Flow of work 

 Old and new manpower utilization 

 Desires of employees 

 Proposed Unit vs. Prior Unit 

10. EFFECTIVE DEALINGS

Efficient use of resources derived from inclusion in existing units 

and negotiation in one unit rather than many units in segments of 

the Activities. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

31

 

History. What is the past history of collective bargaining dealings 

under the existing unit structure(s)? How have labor relations 

policy and labor relations authority been exercised? 

Grievances. What are the formal, informal, negotiated and activity 

grievance procedures for employees involved in the petition? What 

is the past history of grievance processing? 

Units. In what way would the proposed units affect existing 

bargaining and grievance procedures? The parties are required to 

state their positions as to how the proposed units would promote 

effective dealings. 

Authority. What is the locus and scope of responsible personnel 

office(s)? Who handles the various personnel functions at 

present? How would the existence of the proposed units affect 

this? Are the employees involved special or unique because of job 

duties or work location. 

Limitations. What is the extent of the authority to negotiate? Who 

has authority to negotiate? What limits are on the petitioned-for 

Activity‟s authority to negotiate? Are there any matters which could 

be negotiated if the unit were different from that proposed in the 

petition? What matters could be negotiated only if the unit 

structure were different from that proposed? Why is this so? 

Expertise. What is the likelihood that personnel with greater labor 

relations experience will be available in the existing unit, the 

proposed unit or other possibly appropriate units? Who currently 

handles labor-management relations? Where in the organizational 

structure does this exist? At what level is labor relations 

consultation and support provided? 

Policy. At what level is labor relations policy set? How does the 

existence of multiple negotiated agreements, bargaining 

obligations, and grievance procedures affect labor relations 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

32

dealings? Are employees performing essentially the same 

functions currently covered by different systems? 

Training. How and by whom are supervisors and managers 

trained in labor relations? Who decides on training requirements 

and those needing training? Where are the trainers located 

physically and organizationally? 

Impact. What is the impact of the proposed unit structure on 

agency operations in terms of cost, productivity and use of 

resources? 

Cost. What savings or costs (in terms of labor relations personnel, 

productivity, etc.) result from the existing unit(s), proposed unit(s) 

or other possibly appropriate units? 

Productivity. What impact on productivity would result from the 

existing unit(s), proposed unit(s), other possibly appropriate unit(s), 

or the existence of one or several units? 

 

11. EFFICIENCY OF AGENCY OPERATIONS

Benefits to be derived from a unit structure bearing a rational 

relationship to the operational and organizational structure of the 

Activity. 

 

Organization. What, specifically, are the structure, chain of 

command, line of authority, and uniformity of personnel policy and 

practice considerations supporting the effectiveness of the various 

proposed units?

Structure. What is the organizational structure, supervisory 

hierarchy, chain of command, authority over work functions, 

personnel and labor relations policies and dealings? Who reports 

to whom? What is the organizational structure of the personnel 

staff? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

33

Authority. Do personnel with operational authority also have labor 

relations authority? What are the differences within and between 

Activities? 

Benefits. Why would any proposed unit be more beneficial than 

another proposed unit? How do personnel policies and job benefits 

of employees differ within and between Activities? 

Resources. How is the effective use of negotiation resources 

derived from the existing unit structure? How would the proposed 

units affect the use of these resources? What effect would the 

various proposed units have on cost of the labor-management 

program, hours spent administering the program, staffing 

requirements, etc.? 

Impact. What are the parties' views of the impact of the proposed 

or various other possibly appropriate units on efficiency of 

operations or the effectiveness of dealings? Would the proposed 

unit result in fragmentation? If so, how? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

34

REPRESENTATION OUTLINE III

(SKELETON for use in developing a more detailed 

outline tailored to a specific case) 

1. Mission Statement of the Activity 

2. Organization 

a. Organization charts and function statements of each 

subdivision, including the flow from one organization to 

another. 

b. Number of employees in the existing unit, as well as 

number of employees in petitioned-for unit. 

c. Physical layout of organization and entities involved. 

d. Physical location of employees involved. 

3. Bargaining History 

a. Collective bargaining history of all units at installation, 

especially the involved unit. 

b. Bargaining history within the existing unit involved, 

including: 

 (i) copy of certification 

 

 (ii) copy of collective bargaining agreement or any 

memorandum of understanding currently in effect 

 

 (iii) termination date of contract 

 

 (iv) testimony regarding contractual provisions 

covering petitioned-for employees only 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

35

c. Representation Practice 

4. Supervisory Hierarchy 

a. Organizational outline of employees‟ reporting structure 

before and after reorganization, including listings of 

employees involved. 

b. Supervisory ratios 

c. Extent of supervision, line of responsibility (central or local) 

5. Job Functions and Skills 

a. What are the WG, GS ratios and breakdowns within the 

existing unit as opposed to the petitioned-for unit? 

b. What work functions are performed by each component 

group; what is the interrelationship of job functions? 

c. Terms and conditions of employment: 

 (i) duties 

 (ii) location of positions in question 

 (iii) classification of jobs 

d. Actual impact of changes on operations and functions and 

on labor relations dealings. 

6. Integration of Operation and Interchange of Employees 

a. Facilities used before and after internal realignment of 

functions 

b. Would proposed unit(s) affect personnel practices and 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

36

policies? How? Other agency functions? 

c. Do petitioned-for employees actually spend time working 

together with established unit employees? 

7. Transfer of employees from one organization to another 

a. How often have employees moved from one grouping to 

another? 

 

8. Placement Programs: Merit Promotion 

 

9. Personnel Policies and Practices 

a. List of personnel breakdown before and after 

b. Compensation plan and salary plan before and after 

 

c. Payroll office 

 

d. Plans under which hiring, discharge, promotion, transfer, 

RIF (central v. local) 

e. Re-employment and reclassification authorities 

f. RIF, adverse action, discharge, seniority rosters, etc. 

(separate from or integrated with existing unit employees) 

g. Personnel Mobility 

 

 (i) Movement of non-supervisory to supervisory 

 (ii) Movement of non-supervisory to non-supervisory 

 (iii) Movement of supervisory to non-supervisory to 

supervisory 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

37

h. Bargaining History - certifications, contracts, and status of 

each. Status of negotiations. Description of levels at 

which grievances are addressed. Actual or potential 

impact of changes due to internal realignment. 

10. Conditions of Employment 

 

a. Flow of work 

b. Desires of employees 

c. Proposed unit 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

38
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

38 Scope of unit (including residual units, add-ons, expanding 

and contracting units)

When applying the three appropriate unit criteria, section 7112(a) 

of the Statute also requires that the Authority will determine the 

scope of the proposed unit, that is, whether: 

...the appropriate unit should be established on an 

agency, plant, installation, functional or other 

basis. 

The scope of a unit involves a variety of appropriateness of unit 

issues. For instance, scope of unit questions may arise following 

reorganizations or when a union seeks exclusive recognition for a 

group of the agency's unrepresented employees. Scope of unit 

questions may also arise in petitions involving add-on elections to 

existing units, residual units, units of employees specifically 

excluded from existing units and expanding and contracting units. 

In general, the relevant information in a case involving the scope of 

a unit is identical to that at issue in any case involving unit 

appropriateness. See RCL 1 and HOG 37 - Appropriate Unit 

Determinations, Representation Outline I.

Relevant Information: 

1) Relevant information in a case turning on size or functional 

grouping includes the basic evidence necessary to make a 

determination of appropriateness of unit. See section 37 - 

Appropriate Unit Determinations; Representation Outline I. In 

addition, prior to a hearing on a petition for a unit limited to a 

functional grouping, the Hearing Officer researches all Authority 

decisions addressing that particular function, to determine the 

specific factors relied upon and to ensure that evidence concerning 

such factors is included in the record. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

2) Information required in a case involving a residual unit includes 

information related to: 

$ the location and description of all existing bargaining units 

within the Agency or Activity; 

$ the organizational location, numbers types and grades of 

all remaining employees who are eligible for representation but are 

not represented. 

The unrepresented employees are the employees that comprise 

the residual bargaining unit. 

3) The appropriate unit criteria is analyzed in a unit the petitioner 

seeks to add-on to an existing unit to ensure that: 1) the petitionedfor unit is appropriate as a stand alone unit and 2) when combined 

with the existing unit, the overall unit is appropriate. 

4) In any case involving an expanding unit, detailed information 

concerning the exact classifications and staffing levels anticipated 

is entered into the record, including any documentation or 

testimony as to management's timetable for hiring and goals for 

establishing a full complement of employees. The relevant factors 

include: 

a) whether the job classifications were filled or substantially 

filled and representative; 

b) whether the proposed successor was in substantially 

normal production at the time of the hearing; 

c) the size of the complement on the date of normal 

production; 

d) the time expected to elapse before a substantially larger 

complement will be at work; and 

e) the relative certainty of the employer's expected expansion. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

5) In any case involving a contracting unit, detailed information is 

obtained concerning management's plans to eliminate employees 

from the unit. In particular, the record includes evidence as to 

planned timetables for letting employees go and whether there are 

plans to reassign or rehire the employees in another classification. 

For detailed guidance on this topic see RCL 2.

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

39 Effect of changes in the character and scope of a unit due to a 

reorganization or realignment in agency operations

This section discusses changes due to a reorganization or 

realignment in agency operations. These issues arise in petitions 

which seek to clarify or amend a certification or recognition in effect 

or a matter relating to representation. This section is divided into 

six parts: 

A. Purpose and Standards for Resolving Issues Arising 

from Reorganizations. 

1. Analyzing the Effect of Reorganizations on 

Existing Bargaining Units 

2. Relevant Information Required 

B. Successorship. 

C. Accretion. 

D. Competing Claims of Successorship and Accretion. 

E. Consolidated Units. 

F. Case Handling Advice.

A. Purpose and Standards for Resolving Issues Arising from 

Reorganizations.

1. Analyzing the Effect of Reorganizations on Existing 

Bargaining Units 

Section 7111(b)(2) provides, in relevant part, that if a petition is 

filed with the Authority: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

by any person seeking . . . an amendment 

to, a certification then in effect or a matter 

relating to representation; the Authority 

shall investigate the petition, and if it has 

reasonable cause to believe that a 

question of representation exists, it shall 

provide an opportunity for a hearing (for 

which a transcript shall be kept) after a 

reasonable notice. 

This section applies whenever a petition is filed to resolve the effect 

of an agency reorganization on an existing unit, either with respect 

to employees who remain in the unit, employees who have been 

transferred from the unit or employees who have been added to the 

unit. See CHM 27.5, Hearing Requirements.

The substantive factors applied in cases arising from 

reorganizations have remained valid and consistent since 

Executive order 11491. As discussed in HOG 37, Appropriate 

Units, and RCL 1, any case that concerns a question of 

representation requires an appropriate unit determination 

prior to proceeding to other issues. Section 7112(a) of the 

Statute sets out the criteria for determining whether a unit is an 

appropriate unit for exclusive recognition: 

 The Authority shall determine the 

appropriateness of any unit. The Authority shall 

determine in each case whether, in order to ensure 

employees the fullest freedom in exercising the 

rights guaranteed under [the Statute], the 

appropriate unit should be established on an 

agency, plant, installation, functional or other basis 

and shall determine any unit to be an appropriate 

unit only if the determination will ensure a clear 

and identifiable community of interest among 

the employees in the unit and will promote 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

effective dealings with and efficiency of the 

operations of the agency involved. 

2. Relevant Information Required: 

In U.S. Department of the Navy, Commander, Naval Base, Norfolk, 

Virginia (USN), 56 FLRA 328 at 332 (2000) the Authority stated 

that, “in determining whether an existing unit remains appropriate 

after a reorganization, it will focus on the changes caused by the 

reorganization,” [citing Morale, Welfare and Recreation Directorate, 

Marine Corps Air Station, Cherry Point, North Carolina (Morale, 

Welfare), 45 FLRA 281 (1992)] “and assess whether those 

changes are sufficient to render a recognized unit inappropriate” 

citing Defense Logistics Agency, Defense Supply Center 

Columbus, Columbus, Ohio (DLA Columbus), 53 FLRA 1114 at 

1122-23 (1998). 

Factors considered in cases raising issues related to changes 

in the character and scope of existing bargaining units are the 

same as any other cases in which appropriate unit issues are 

raised. However, three issues affect any determination the 

Region or the Authority makes with respect to the impact of a 

reorganization on employees in existing bargaining units. 

a. When seeking information about the three appropriate 

unit criteria, it is first necessary to address the factors 

from two perspectives: how the unit functioned prior to 

the change and how it functions after the change. 

Evidence is obtained with respect to the mission and 

organizational structure and other appropriate unit criteria 

both before and after the reorganization. Changes to 

employees and their conditions of employment, particularly 

their day-to-day working conditions, the actual impact on 

employees and the impact on agency operations, the 

blending of employees are all compared to the employees‟ 

conditions of employment prior to the reorganization.

For each factor that is considered for each of the appropriate unit 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

criteria discussed in RCL 1 and HOG 37, the inquiry also includes: 

1. What was the change and what prompted the change (the 

scope of the reorganization - how did it affect the agency 

and the activity that is the subject of the petition); 

2. What effect did the change have on: 

a. Working conditions; 

b. Day-to-day operations; 

c. Chain of command and authority to manage; 

3. What was the purpose of the change; 

4. How did the unit change (before and after); 

5. Who was affected by the change and how; 

6. What was changed as far as mission, function, 

organization, employees duties, skills, day-to-day operations, 

personnel practices and policies, etc. 

7. Describe the bargaining unit history and discuss the impact 

of the bargaining unit history on efficiency and effectiveness 

criteria; 

8. What was the chain of command prior to the reorganization 

and discuss the effect of any change in chain of command on 

ability of existing unit to operate efficiently as separate 

organizations or collectively; 

9. Consider the timing of the change and the petition. Is the 

change ongoing such that it becomes a fact that is relevant to a 

unit determination?1 

 

1

Information is relevant at time of hearing unless there are unusual circumstances. See 

DPRO, Thiokol.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

a. If so, is the petition premature? 

b. If so, could the parties work under a memorandum 

of agreement until such time as the reorganization takes 

shape? 

10. Does the proposed unit consist of a substantial and 

representative complement of employees;2

11. Does the proposed unit structure prevent or reduce 

fragmentation (compare the concept of fragmentation before and 

after the reorganization).3

To summarize, when examining the effects of a reorganization on 

an existing appropriate unit, the evidence reflects the employees‟ 

terms and conditions of employment as well as other factors that 

are routinely considered when examining the appropriate unit 

criteria both before and after the reorganization. This is the best 

method for ensuring an adequate record and one that will provide 

sufficient information to decide the continued appropriateness of 

the unit and/or the extent that the reorganization affected 

employees in the existing unit. 

b. Additionally, timing is significant. 

 

2

Naval Facilities Engineering Service Center, 50 FLRA 363 (1995) (Port 

Hueneme)Naval Facilities Engineering Service Center (NFESC), 50 FLRA 363 (1995) 

(reorganization case in which the Authority examined and set new standard for deciding 

successorship) at n.9. Discussion of the appropriate time for determining whether employees 

of the predecessor unit constitute a majority of the successor unit, citing Fall River Dyeing 

and Finishing Corp. v. NLRB, 482 U.S. 27 (1987).Fall River Dyeing and 

Finishing Corp. v. NLRB, 482 U.S. 27 (1987). 

3

In U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air 

Force Base, Ohio, 55 FLRA 359 (1999), the Authority stated that “the purpose of consolidation 

is to reduce fragmentation of unit. See AAFES, 5 FLRA at 661, 662. The Authority has never 

imposed a requirement that a consolidation petition eliminate unit fragmentation. The 

consolidation of six AFGE bargaining units into the current consolidated unit reduces unit 

fragmentation. ...” 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

When conducting hearings in such cases, the Regions ensure that 

the record reflects the stage of the reorganization and any further 

agency plans regarding future related reorganizations. Case law 

dictates that any unit determination is based on the facts presented 

at the time of the hearing. FISC, Norfolk is an excellent example of 

why it is necessary to obtain information about the affected 

employees from the perspectives of their inclusion in an 

appropriate unit prior to a reorganization and after a reorganization. 

In FISC, Norfolk, a case involving claims of successorship and 

accretion, the Authority had to balance the parties‟ competing 

claims: NAGE claimed that separating employees from the basewide unit at the Yorktown detachment would be inappropriate and 

cause fragmentation; but FISC argued that not including the 

Yorktown detachment in FISC, Norfolk would cause fragmentation 

in FISC. 

This case also demonstrates that it is important to obtain complete 

evidence about the facts and circumstances giving rise to the 

petition, i.e., often from a broader scope or perspective than 

reviewing the impact on the employees at a single site. For 

instance, if NAGE had filed the petition in FISC seeking a 

determination of the effect of the establishment of FISC only on its 

base-wide unit at Yorktown, the record may have emphasized 

different facts even though the results should have been the same. 

However, a review of relevant case law confirms that “how” and 

“what” evidence is presented may often lead to different results. 

Because the record in FISC, Norfolk presented evidence from both 

broad and narrow perspectives, the facts clearly demonstrated that 

including the Yorktown detachment in the FISC, Norfolk Activity 

was appropriate. 

For more detailed guidance on analyzing the effects of a 

reorganization, see RCL 3A.

 

4

See Defense Mapping Agency and FISC, Norfolk.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

B. Successorship.

Successorship involves a determination of the status of a 

bargaining relationship between an agency/activity which acquires 

employees who were in a previously existing bargaining unit, and a 

labor organization that exclusively represented those employees 

prior to their transfer. 

In Department of the Navy, Naval Supply Center, Puget Sound, 

Bremerton, Washington and Department of the Navy, Fleet Industrial 

Supply Center, Bremerton, Washington (FISC, Bremerton), 53 FLRA 173 

(1997)Department of the Navy, Fleet Industrial Supply Center, 

Bremerton, Washington (FISC, Bremerton), 53 FLRA 173 at 183, 

n.9 (1997). 

5. Relevant information for successorship includes:

(1) The full and correct name of the predecessor employer and 

the alleged successor employer. Obtain background and 

evidence of the nature of the transfer. 

(2) Evidence and documentation, if possible, of the basic 

mission, organization and operations of the predecessor 

employer and of the successor employer. This area 

corresponds to the appropriateness of the unit rather than 

the continuity of the mission. Explore “facts” relating to: 

a. nature of the work; 

 

b. type of service performed or work accomplished; 

 

c. information about who is (was) serviced, i.e., 

customers; 

d. changes in methodology of doing the work 

(equipment, machinery, etc.); 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

e. changes in organization, functions, facilities and 

geographic changes in location; 

f. composition of the work force at the alleged 

successor; 

g. obtain charts and mission statements; and 

 

h. cross reference to “Appropriate Unit,” section 37. 

(3) Information concerning the significance of the change in 

the organization: 

a. Was the predecessor abolished; were its functions 

significantly reduced; did it continue to operate 

independently or did it participate in the operations 

of the successor? 

b. Did the new employer assume the business of 

other entities as well as predecessor? 

 

(4) Information concerning the effect of the change on the 

workforce: 

a. description of bargaining unit at the predecessor 

(obtain copies of certifications and recognitions, 

contracts, etc.); and 

b. portion of bargaining unit affected by 

reorganization: number acquired by alleged 

successor; information concerning employees who 

were acquired by alleged successor. 

 

(5) What was the effective date the alleged successor 

assumed control of the predecessor operations? Was 

there a hiatus between the official date of the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

reorganization and the date the employees were actually 

transferred to the alleged successor. In any event, the 

following information must be explored: 

a. whether the job classifications were filled or 

substantially filled and representative; 

b. whether the successor was in substantially normal 

production (at the time of the hearing); 

c. the size of the complement on the date of normal 

production; 

 

d. the time expected to elapse before a substantially 

larger complement will be at work; and 

e. the relative certainty of the employer's expected 

expansion. 

(6) Characteristics of the successor; examine the extent the 

successor continued the mission and operations of its 

predecessor by establishing whether and to what extent: 

a. there has been continuity in the mission; 

b. the successor operates from the same location; 

c. the workforce is substantially the same; 

d. the same jobs exist under the same working 

conditions. Get number, types and grades, 

including classifications of affected employees 

from the predecessor, both before and after 

change. Inquire about the work actually performed 

by the employees; has it changed, if so, how? 

 

e. the same management and supervision have been 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

retained. If not, how have they changed? 

f. employees use the same equipment and have the 

same resources available as prior to the change; 

and

g. employees' duties are the same: they engage in 

the same type of work, or perform the same 

service or functions. 

(7) Are a majority of the alleged successor's employees in the 

proposed (involved) bargaining unit former employees of 

the predecessor? What is the workforce complement of 

the proposed unit? 

(8) How were the former employees placed with the alleged 

successor? Explore how the employees were notified and 

the placement program used (transfer of function, offered 

employment, etc.). 

(9) Describe any changes instituted by the alleged successor 

in such matters as: 

a. duties 

 b. working conditions 

c. personnel policies and practices 

d. facilities and other terms and conditions of 

employment 

(10) Did the alleged successor merge or combine the 

operations of the predecessor with other preexisting 

operations? If so, were the employees in other preexisting 

operations previously represented by a labor organization? 

If so, obtain the name of labor organization, description of 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

11

the unit and copies of any existing certifications, 

recognitions or collective bargaining agreements. Did the 

alleged successor hire any employees to combine with 

employees from the predecessor? 

a. Ascertain how many employees were in each 

group or unit prior to such merger or combination. 

b. Ascertain the employee complement at the alleged 

successor. (total number of employees, Including 

numbers, types from each previously represented 

unit, newly hired employees and/or employees 

who were already on the rolls. 

(11) Explore whether and to what extent the (two) combined 

groups have been integrated with one another. The issue 

is whether the predecessor‟s former employees retained or 

lost their identity, constitute a separate appropriate unit or 

are combined with other employees in a newly created 

appropriate unit. Examine the degree of integration and 

interchange among employees in terms of: 

a. job duties and responsibilities 

b. supervision 

c. interaction and contact 

d. interchange and transfer 

e. common working conditions 

f. access to common facilities and opportunities 

g. similarities in personnel policies and practices 

C. Accretion.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

12

Accretion involves the addition, without an election, of a group of 

employees to an existing bargaining unit. Accretion issues most 

frequently arise as a result of a reorganization or realignment of 

agency operations. 

To find accretion, the acquired employees:

< are not in newly created positions that fall within the 

express language of the unit description. Department of the Army, 

Headquarters, Fort Dix, Fort Dix, New Jersey (Fort Dix), 53 FRA 

287 (1997). See RCL 15.

< do not constitute an appropriate separate bargaining unit 

on their own. 

< become functionally and administratively integrated into the 

gaining organization‟s pre-existing unit(s), and that adding the 

transferred employees to the unit(s) would be appropriate under 

section 7112(a) of the Statute in that the employees in the resulting 

unit share a community of interest with employees in the 

established unit and the resulting unit promotes effective dealings 

with and efficiency of operations of the agency. 

For more detailed information on accretion, see RCL 3C.

Relevant Information: The record covers: 

1) information concerning whether the acquired employees 

constitute a separate appropriate unit; RCL 1 and HOG 37. 

2) the organizational structure and staffing patterns of the two 

entities prior to and after the reorganization; 

3) the supervisory chain of command of the gaining entity; 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

13

4) the nature and scope of personnel and labor relations 

authority at the various managerial levels, both before and 

after the reorganization; 

5) the specific role and authority of the various servicing 

personnel offices, both before and after the reorganization; 

6) the nature and scope of differences among the various 

facilities with respect to personnel policies and practices, 

both before and after the reorganization; 

7) the role of the gaining entity in providing administrative 

support to the various facilities; 

8) the areas of consideration and competition with respect to 

the various facilities, both before and after the 

reorganization; 

9) bargaining history throughout the facilities; 

10) how the entities have functioned (e.g. the flow of work) 

after the reorganization; 

11) the nature and degree of employee transfer and 

interchange among the various facilities, both before and 

after the reorganization; 

12) the extent to which a separate unit would result in 

fragmentation of units; and 

13) the numbers of employees in the transferred group and in 

the existing unit. 

Note: Questions have been raised concerning the differences 

between accretion and successorship in reorganization cases. 

Essentially, accretion concerns the status of a group of employees 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

14

while successorship concerns the status of a bargaining 

relationship between an agency/activity which acquires employees 

who were in a previously existing bargaining unit and a labor 

organization that exclusively represented those employees prior to 

their transfer. Reorganizations often raise both accretion and 

successorship issues because the impact of what happened is not 

immediately clear on the unit structure. It is important to find out 

what happened to the employees and determine how the 

reorganization affected their conditions of employment. Once 

information is gathered, the factors of accretion and successorship 

can be applied and analyzed. It is not possible to have both an 

accretion and a successorship involving the same employees. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

15

D. Competing Claims of Successorship and Accretion. 

NFESC, 50 FLRA 363, with respect to the units(s) 

determined to be appropriate. The outcome of the 

NFESC analysis determines whether the gaining 

organization is a successor for purposes of 

collective bargaining with the labor organization(s) 

that represented the transferred employees at their 

previous employer. 

3) If it is determined that the transferred employees 

are not included in, and constitute a majority of 

employees in, a separate appropriate unit in the 

gaining organization, the Authority applies its longestablished accretion principles. The outcome of 

this analysis determines whether the transferred 

employees have accreted to a pre-existing unit in 

the gaining organization. 

The quality of the record is vitally important. FISC, 

Bremerton, 53 FLRA 173 (1997), the Authority affirmed the 

Regional Director‟s finding that FISC, Concord Detachment 

was a successor employer to the Concord Naval Weapons 

Station (NWS Concord) for an appropriate unit of 

employees transferred from NWS Concord to the newly 

established FISC, Concord Detachment. The Regional 

Director, as affirmed by the Authority, based his decision 

on different facts in the record. 

Relevant information includes first obtaining 

information outlined in RCL 1; then applying the 

factors discussed in RCL 3A to determine whether the 

affected employees constitute a separate appropriate 

unit. Depending on the answer to that question the 

successorship (RCL 3B) or accretion (RCL 3C) outlines 

are applied.

E. Consolidated Units: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

16

When applying the appropriate unit criteria to a 

successorship/accretion situation that involves a consolidated 

bargaining unit, the criteria are applied with respect to the entire 

nationwide consolidated unit. The Region does not apply the 

criteria to any organizational segment (or former unit encompassed 

within the consolidated unit) below the level of exclusive 

recognition. Thus, successorship and accretion issues are not 

considered below the level of exclusive recognition. Compare

Social Security Administration, District Office, Valdosta, Georgia 

(SSA, Valdosta), 52 FLRA 1084 (1997). 

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

40 Issues related to the majority status of the currently 

recognized or certified labor organization and/or defunctness

Section 7111(b)(2) of the Statute permits the filing of a petition 

seeking clarification of, or an amendment to, a certification then in 

effect or a matter relating to representation. Based on current 

Authority case law, three types of petitions may be filed under this 

section that raise issues related to the majority status of the 

currently recognized or certified labor organization: 

1. petitions questioning the continued majority status of the 

recognized or certified labor organization which are 

generally filed by agencies; 

2. petitions filed by an exclusive representative to amend its 

certification in which the investigation raises a reasonable 

cause to believe a question of representation (QCR) or 

defunctness exists; and 

3. questions of defunctness of the exclusive representative 

which is an interrelated, but not identical, concept. 

In the three scenarios, section 7111(b)(2) provides, in relevant part, 

that if a petition is filed with the Authority: 

by any person seeking . . . an amendment to, a 

certification then in effect or a matter relating to 

representation; the Authority shall investigate the 

petition, and if it has reasonable cause to believe 

that a question of representation exists, it shall 

provide an opportunity for a hearing (for which a 

transcript shall be kept) after a reasonable notice. 

If the Authority finds on the record of the hearing 

that a question of representation exists, the 

Authority shall supervise or conduct an election on 

the question by secret ballot and shall certify the 

results thereof. . . . 

The Authority stated in U.S. Department of the Interior, Bureau of 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

Land Management, Phoenix, Arizona (BLM), 56 FLRA 202, 206 

(2000) that “[c]onsistent with the plain wording of this section, if in 

investigating a petition to amend a certification there is reasonable 

cause to believe that a QCR exists, then an opportunity for a 

hearing on the matter „shall‟ be provided. This statutory 

requirement is not discretionary and does not depend on the type 

of petition filed. Rather, it depends on whether there is reasonable 

cause to believe that a QCR exists. The Authority noted, in this 

respect, that § 2422.1 of the regulations provides for only one type 

of petition. 

For more detailed guidance on this topic see RCL 4.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

 Relevant information includes:

1) The current collective bargaining agreement, if any. 

2) The exclusive representative‟s contacts with the Activity in 

representational matters, including: 

 a) grievances or evidence of any informal attempts to 

enforce the collective bargaining agreement; 

 b) evidence of demands to bargain in response to 

management initiated changes; 

 c) evidence of participation in negotiations, e.g., 

memorandum of understanding, term negotiations 

(incomplete or otherwise); 

 d) unfair labor practice charges filed or processed by 

the union; and 

 e) evidence of representation by the union of 

bargaining unit employees in other matters, e.g., 

EEOC, MSPB, Office of Special Counsel, Inspector 

General inquiries. 

3) Evidence and documentation that the union has 

designated stewards/officers. 

4) Testimony or documentation regarding recruiting or 

membership drives conducted by the exclusive 

representative. 

5) Records or documentation regarding bargaining unit 

employees on dues withholding. 

6) Records/documentation regarding bargaining unit 

employees on dues withholding over periods of time, in 

order to gauge if there has been a rapid or large decline in 

membership. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

7) With respect to petitions filed to amend the certification 

filed by an incumbent due to a reaffiliation or a merger, in 

addition to the information discussed above, the number of 

employees in the bargaining unit, the number of union 

members in the unit, and the number of employees who 

voted for and against reaffiliation. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

41 (Reserved) 

42 Dues allotment

A labor organization may be granted certification for the limited 

purpose of negotiating an agreement for dues allotment under 

section 7115(c) of the Statute, which provides: 

 (1) Subject to paragraph (2) of this 

subsection, if a petition has been filed with the 

Authority by a labor organization alleging that 10 

percent of the employees in an appropriate unit in 

an agency have membership in a labor 

organization, the Authority shall investigate the 

petition to determine its validity. Upon certification 

by the Authority of the validity of the petition, the 

agency shall have a duty to negotiate with the 

labor organization solely concerning the deduction 

of dues of the labor organization from the pay of 

the members of the labor organization who are 

employees in the unit and who make a voluntary 

allotment for such purpose. 

 (2) The provisions of paragraph (1) of this 

subsection shall not apply in the case of any 

appropriate unit for which there is an exclusive 

representative. 

Standard: To certify a union for dues allotment, the union is 

required to file a petition with a Regional Office that includes the 

following criteria: 

a) the petition seeks certification for dues allotment 

for a unit for which there is no exclusive 

representative 

b) the claimed unit is appropriate for exclusive recognition 

and 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

c) the petitioner provides a showing of membership of not 

less than 10 percent (10%) in the unit claimed to be 

appropriate. 

A Hearing Officer does not permit issues to be raised about 

evidence of membership issues in a hearing on a petition for dues 

allotment. Similar to other petitions requiring a showing of interest, 

the Regional Director administratively determines adequacy of the 

evidence submitted. See CHM 18.3. 

For more detailed information on this topic see RCL 6. 

Relevant Information: See Section 37, Appropriate Unit 

Determinations, Representation Outline. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

43 Changes in the name of the certified or recognized exclusive 

representative 

This section discusses the concepts and procedures for processing 

petitions to amend a certification or recognition due to changes in 

the name of the certified or recognized labor organization. Such 

changes fall within two categories: 

A. Technical or nominal changes:

These changes occur when the union merely seeks a technical or 

nominal change in its certification due to a clerical or administrative 

error. See National Aeronautics and Space Administration, 

Headquarters, Administrative Division, 12 FLRA 152 (1983)

(granted a name change for the exclusive representative - no 

discussion of Montrose factors). 

B. Montrose: changes in affiliation or mergers of labor 

organizations: 

When a petitioner seeks amendment to reflect a change in 

affiliation resulting from either a reaffiliation or a merger of unions, 

two conditions must be met. 

The two conditions that must be met to determine whether the 

designation of the exclusive representative of a recognized or 

certified unit may be amended are: 

1. Due Process: Montrose sets out specific procedures to 

ensure that union members have an adequate opportunity 

to vote on the change. 

2. Continuity of Representation: Any change in an 

affiliation may not affect the continuity of the unit 

employees' representation and clearly does not leave open 

questions concerning such representation. 

For more detailed information on technical changes and 

Montrose see RCL 7.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

Relevant information: 

1) Existing Recognition 

a) certification of representation or letter of 

recognition for affected unit; 

b) copy of existing collective bargaining agreement(s) 

covering affected unit; and/or 

 

c) background only: number of employees in affected 

bargaining unit. 

2) Special Meeting 

a) What factors did incumbent consider in setting 

date, time and place of meeting? Was the meeting 

held at place and time when regular membership 

meetings would normally be held? If not, why not 

and where was it held? 

b) Copy of the notice of the meeting (e.g., letters, 

bulletins, post cards, postings, advertisements, 

etc.). Method of notice distribution (e.g., mailed to 

last known home address, mailed to work address 

using internal mail system, posted on union bulletin 

boards, etc.). Was the notice distributed differently 

than other meeting notices; if so, how? 

c) Extent of advance notice given to members of 

special meeting. Is this different from the amount 

of notice given of other union meetings? If not, 

why was there a difference? 

d) Number of employees in the bargaining unit; 

number of union members in affected unit; number 

of such members in attendance at meeting; 

number of members who voted and copies of any 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

existing attendance records for meeting. 

e) What was discussed at the meeting, i.e., was the 

proposed change in affiliation the sole 

purpose/topic of the meeting? If not, what else 

was discussed at this meeting? 

f) Who, what, when, where, and how as to the events 

at the special meeting. In particular, what were the 

members told about the proposed change? What 

was the substance of the discussion? Were 

questions asked? If so, what were they and what 

answers were given? Obtain copies of any 

meeting minutes. 

g) Description of site used to conduct election and the 

procedures used to ensure secrecy of ballot. If the 

incumbent represents more than one unit, was 

vote limited to union members from affected unit? 

h) What was done to safeguard ballots during the 

vote itself and between the voting and the ballot 

count? What were the procedures used to conduct 

the election and count the ballots? Who counted 

the ballots? If no election was held during the 

special meeting, why not? Was election held 

sometime thereafter? If so, when and using what 

procedures? 

i) Copy of the ballot. 

j) What was the outcome of the election? Obtain 

evidence, such as tally, results certification or 

minutes. 

3) Continuity of Representation: 

a) Description of whether and, if so, which local 

officers/representatives of the incumbent be 

retained by the gaining labor organization. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

b) Description of the differences, if any, between the 

officer/steward structures of the incumbent and 

gaining labor organizations. Similar information on 

differences in overall representational capabilities. 

c) Description of the differences, if any, between the 

dues structures of the incumbent and the gaining 

labor organization. 

d) Has the gaining union agreed to assume 

responsibility for administering the incumbent's 

contract and otherwise to represent the unit? Are 

there any agreements between the incumbent and 

the gaining union concerning finances, such as 

transfer of an arbitration fund or other fund? Is 

there any evidence to suggest that the gaining 

union is not capable of representing the unit? 

e) Discuss any organizational changes to the extent 

that any changes in the organizational structure will 

affect the union‟s representation of the unit, 

authority to administer and execute the collective 

bargaining agreement and constitution. 

f) Based on the size of the unit and the size of the 

membership, is there a reasonable cause to 

believe that a QCR exists? See also RCL 4 and 

HOG 40. 

C. Impact of Trusteeships on Reaffiliation Petitions:

1. Trusteeship Imposed After the Filing of the Petition: when a 

trusteeship is imposed after a reaffiliation vote and after the filing of 

a petition to change the certification, the trusteeship cannot affect 

the processing of the petition and the issuance of a new 

certification. New Mexico Army and Air National Guard, 56 FLRA 

145, 149 (2000). 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

2. Trusteeship Imposed Prior to the Petition, Whether Before or After 

the Vote:

The Assistant Secretary has taken a position in cases where a 

party has challenged the legality of the purpose of a trusteeship 

imposed to block a reaffiliation vote. The parties in these cases 

had Montrose petitions pending in the Regions which had been 

deferred pending the Assistant Secretary‟s determination on the 

validity of the trusteeships which were imposed prior to the filing of 

the petition. The Assistant Secretary took the legal position that 

parent labor organizations cannot impose a trusteeship simply to 

prevent a local from disaffiliating from the parent organization. 

When there is no pending case before the Department of 

Labor and the trusteeship was imposed prior to the filing of 

the petition, the Regional Director examines the validity of the 

purpose of a trusteeship. In view of the legal position taken by 

the Assistant Secretary and noting particularly that it is the 

Assistant Secretary and not the Office of the General Counsel that 

has established the test for determining the validity of trusteeships, 

Regions limit the examination to a factual finding of whether 

the illegal purpose of blocking reaffiliation was the purpose 

for imposing the trusteeship. 

With respect to the procedural validity of the trusteeship, the 

Regions: 

< ascertain whether the matter is pending before the Department of 

Labor; 

< examine the procedural requirements of the parent union's 

constitution and bylaws and decide if those provisions were 

followed; 

< obtain a copy of the national union‟s constitution and bylaws; 

< obtain a copy of the letter from the national placing the local 

exclusive representative under trusteeship; 

< decide if the local union was afforded a fair hearing; and 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

< determine if the trusteeship was authorized or ratified after that 

hearing as provided for in the parent union's constitution and 

bylaws. 

For detailed guidance on this topic see RCL 7.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

44 Schism

Schism is defined as “[a] basic intraunion conflict over policy at the 

highest level of an international union or within a federation which 

results in a disruption of existing intraunion relationships; and the 

employees seek to change their representative for reasons related 

to such conflict resulting in such confusion in the bargaining 

relationship that stability can only be restored by an election.” In a 

schism case, the petitioner generally asserts that the intra-union 

conflict constitutes the type of unusual circumstances which 

justifies the filing of an election petition during a contract bar period 

or which justifies severance of a group of employees from a larger 

appropriate unit. 

Standard: Department of the Navy, Pearl Harbor Naval Shipyard 

Restaurant System, Pearl Harbor, Hawaii (Pearl Harbor) 28 FLRA 

172 (1987) is the first and only case considered by the Authority on 

the merits of schism. In that case, the Authority adopted private 

sector case law as a guide in rendering his decision. Citing 

Hershey Chocolate, 121 NLRB 901, (1958), the Authority adopted 

NLRB precedent in determining whether an asserted schism 

existed. 

In Hershey Chocolate, 121NLRB 901, the NLRB established three 

conditions that must be present to find that a schism exists: 

1. There must be a basic intra-union conflict affecting the 

certified representative. A basic intra-union conflict is any 

conflict over policy at the highest level of an international 

union, whether or not it is affiliated with a federation, or 

within a federation, which results in the disruption of 

existing intra-union relationships. Hershey Chocolate

121NLRB at 907. 

2. Employees in the unit seek to change their bargaining 

representative for reasons related to the basic intra-union 

conflict and have an opportunity to exercise their judgment 

on the merits of the controversy at an open meeting, called 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

with due notice to the members in the unit for the purpose 

of taking disaffiliation action for reasons related to the basic 

intra-union conflict. Hershey Chocolate 121NLRB at 908. 

3. The action of the employees in the unit seeking to change 

their representative took place within a reasonable time 

after the occurrence of the basic intra-union conflict. 

Hershey Chocolate 121NLRB at 908. 

For detailed guidance on this topic see RCL 8.

Relevant information: 

In addition to evidence of exclusive recognition, the record in a 

schism case includes all basic information involved in a contract 

bar case. See section 48 - Timeliness, for a discussion of contract 

bar issues. Other relevant information in a schism case includes 

documents and testimony showing: 

1) the nature of and the reasons for the internal conflict 

asserted as evidence of schism; to what extent did the 

employees‟ dissatisfaction with the collective bargaining 

agreement influence the internal conflict? 

2) what is the highest level of the national or international 

union involved and at what level did the internal conflict 

occur? 

a) What was the nature of the internal conflict? 

b) What was the fundamental policy question? 

3) the nature and extent of any action taken by employees in 

the unit based on the conflict, specifically as to the 

realignment, disaffiliation or expulsion of unit members 

from the incumbent labor organization. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

4) if disaffiliation has occurred, was a special meeting held to 

discuss and vote on the disaffiliation issue? 

a) in what manner and when were the members 

notified of the meeting? When was the meeting 

held? 

b) description of the discussion at the meeting. 

c) numbers of members at the disaffiliation meeting 

as compared to attendance at previous, regularly 

held meetings of the incumbent. Numbers of 

employees in the unit at the time of the disaffiliation 

action. Was the meeting limited to members of the 

union or could any member of the bargaining unit 

attend? 

d) the proposition voted upon at the disaffiliation 

election, including a copy of the ballot, if available. 

Results of any disaffiliation vote, including 

documentation of actual tally, if available. 

e) description of which, if any, of the former officers 

of the incumbent were elected or appointed to 

offices in petitioner‟s organization. 

f) whether a new charter was issued to the petitioner 

and, if so, when the charter was issued, including a 

copy of the document, if available. 

g) number and nature of grievances handled by the 

petitioner on behalf of employee(s) in the unit. 

Identical information for the incumbent. 

h) the dates of meetings conducted by the petitioner 

since disaffiliation, including average numbers of 

members in attendance at each meeting. Identical 

information for the incumbent. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

i) the numbers of members on dues deduction for the 

petitioner. Identical information for the incumbent. 

j) the numbers of stewards acting on behalf of the 

petitioner. Identical information for the incumbent. 

k) details of the election or appointment of new 

officers, whether by the petitioner or the 

incumbent. 

l) description of the nature and extent of confusion in 

the bargaining relationship caused by the internal 

conflict, including testimony on this point from the 

agency as well as the petitioner and incumbent. 

m) if members have been expelled, the Hearing 

Officer obtains documents and testimony from all

affected groups as to the events involved in the 

expulsion. 

5) What was the length of time between the alleged intraunion conflict and the movement to sever the relationship? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

45 Severance

Severance issues arise when a petitioner seeks to "carve out" or 

sever employees from an established bargaining unit to establish a 

separate unit. Any election petition requesting severance from an 

existing unit requires a 30 percent showing of interest in the 

petitioned-for unit, not 30 percent of the existing bargaining unit. 

Office of Hearings and Appeals, Social Security Administration, 16 

FLRA 1175 (1984). 

Standard: Severance is granted only in the rare circumstances 

where: 

(1) the existing unit continues to be appropriate under 

the criteria set forth in section 7112(a)(1) of the 

Statute; and

(2) unusual circumstances are present which justify 

removing the particular group of employees from 

the existing unit. 

In addition to obtaining a complete record on the appropriateness 

of the existing unit, and evidence of unusual circumstances 

warranting consideration of severance, the Hearing Officer obtains 

a complete record as to the appropriateness of the proposed unit of 

severed employees (RCL 1 and HOG 37). This is not inconsistent 

with the Authority's finding in Carswell Air Force Base. Since only 

the Regional Director is empowered to make representation case 

determinations, the Hearing Officer obtains a complete and 

adequate record, without pre-judging the results. 

Relevant information in a severance case includes: 

1) Copy of the certification; 

2) Copy of the collective bargaining agreement or any 

memorandum of understanding currently in effect, 

including any extensions of the agreement, signed by the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

parties, so that the expiration date of the contract can be 

determined; 

 

3) Testimony regarding contractual provisions covering 

petitioned-for employees; 

4) Evidence showing incumbent‟s representation of the unit 

(e.g., grievances filed on behalf of employees; unfair labor 

practice charges filed on behalf of employees, etc.); 

 

5) Evidence showing incumbent‟s representation of the unit, 

with respect to the petitioned-for employees (e.g., 

grievances filed on behalf of these employees; unfair labor 

practice charges filed which involved these employees, 

etc.); and 

6) Disclaimers of interest filed by the exclusive representative 

and any other documents which establish that the 

exclusive representative is not interested in further 

representation of these employees. 

7) If the issue arises in the context of a reorganization or 

realignment in which the existing unit is still appropriate: 

a) do the employees make up a distinct functional 

grouping of employees? If so, are they new hires 

or employees from the pre-existing unit? 

b) if the employees are new hires, do all of the parties 

agree to the severance? 

c) if the incumbent filed a disclaimer for the 

employees, were its subsequent actions consistent 

with its disclaimer? 

For more guidance on this topic see RCL 9.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

46 Status of a labor organization

A. Compliance with section 7103(a)(4) of the Statute.

 A labor organization is defined in section 7103(a)(4) of the Statute 

as: 

 [A]n organization composed in 

whole or in part of employees, in which 

employees participate and pay dues, and 

which has as a purpose the dealing with 

an agency concerning grievances and 

conditions of employment ... . 

 

Section 7103(a)(4) also provides four statutory exemptions in 

defining labor organization under the Statute: 

 (A) an organization which, by its 

constitution, bylaws, tacit agreement 

among its members, or otherwise, denies 

membership because of race, color, creed, 

national origin, sex, age, preferential or 

nonpreferential civil service status, political 

affiliation, marital status, or handicapping 

condition; 

 (B) an organization which 

advocates the overthrow of the 

constitutional form of government of the 

United States; 

 (C) an organization 

sponsored by an agency; or 

 (D) an organization which 

participates in the conduct of a strike 

against the Government or any agency 

thereof or imposes a duty or obligation to 

conduct, assist, or participate in such a 

strike. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

Basis for challenge: Section 2422.11(a) of the regulations states 

that the only basis on which a challenge to the status of a labor 

organization may be made is compliance with 5 U.S.C. 7103(a)(4). 

The Authority has held that challenges may also be filed pursuant 

to section 7111(f)(1) of the Statute. Section 7111(f)(1) prohibits 

granting exclusive recognition to a union which is subject to corrupt 

or undemocratic influences. See Part B below. 

Note: There are major differences between the private sector and 

federal sector definitions of a labor organization. Private sector 

precedent on this issue may be misleading. 

Relevant information:

1) full and correct name of the organization; 

2) affiliation, if any; 

3) manner and extent of employee participation in the 

organization; 

4) nature and extent of the organization‟s "dealings with" the 

agency; 

5) discussion of whether dealings concern grievances and 

conditions of employment (include examples); 

6) information concerning whether employees pay dues, fees 

or assessments to the organization and in what manner; 

and

7) information concerning whether the parties have been 

involved in earlier Authority proceedings in which the party 

currently challenging the status of the labor organization 

failed to raise the issue. 

B. Claims made pursuant to section 7111(f)(1) of the Statute that 

a labor organization should not be accorded exclusive 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

recognition under the Statute because the labor organization 

is subject to corrupt influences or influences opposed to 

democratic principles.

In 1997 the Authority issued cases stating that a petition or a 

challenge raising claims pursuant to section 7111(f)(1) may be filed 

and addressed by the FLRA. If filed as a petition, there is nothing 

in the Statute or its legislative history that suggests that a petition 

filed pursuant to section 7111(f)(1) requires a showing of interest or 

is subject to the timeliness requirements. In all other respects, 

such a petition is processed according to the regulations 

concerning petitions which do not require a showing of interest. 

See Division of Military And Naval Affairs (New York National 

Guard), Latham, New York and National Federation of Civilian 

Technicians (NYNG), 53 FLRA 111 (1997) and U.S. Information 

Agency, Washington, D.C. and American Federation of 

Government Employees, Local 1812, AFL-CIO, (USIA), 53 FLRA 

999 (1997). See also CHM 20.1.8 and RCL 10B.

Section 7111(f)(1) of the Statute, provides that: 

(f) Exclusive recognition shall not be accorded to a labor 

organization– 

 (1) if the Authority determines that the 

labor organization is subject to corrupt influences 

or influences opposed to democratic principles; 

For Case Handling Procedures, see CHM 5.10, 19.1, 20.1.8, 

23.9.3.

For additional guidance for analyzing these cases, see RCL 

10B.

Relevant information:

1) Obtain a copy of the constitution and bylaws; obtain 

testimony from a union officer concerning whether and how 

they meet the criteria set forth in 5 U.S.C. 7120a. 

2) Evidence must be introduced by the challenging party that 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

the presumption that the labor organization is free from 

corrupt and anti-democratic influences is rebutted as set 

forth in 5 U.S.C. 7120b. 

3) Such evidence must be in the form of a finding by a third 

party with jurisdiction over the allegations asserted to 

establish corrupt or anti-democratic influences. 

4) If a third party with jurisdiction over the conduct alleged to 

establish the requisite reasonable cause finds a violation 

based on the same facts raised by the 7111(f)(1) 

challenge, the Hearing Officer accepts that finding as 

evidence that there is reasonable cause to believe that the 

presumption of freedom from corrupt or anti-democratic 

influences has been rebutted. 

5) If the presumption is rebutted, the burden of proof under 

section 7111(f) shifts to the accused labor organization to 

demonstrate that, in fact, it is free from influences that 

would preclude recognition. Consistent with the 

requirements of section 7120(b), the accused labor 

organization is then asked to furnish evidence to the 

Hearing Officer of its freedom from such influences. 

A labor organization meets this burden by providing 

evidence, for example, that: 

(a) the violation found by a third party has been cured 

(for example, that sanctions imposed by a parent 

organization have been lifted); or 

(b) the violation found by a third party is in effect de

minimis and thus is insufficient to warrant denial or 

revocation of certification. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

47 (Reserved) 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

48 Timeliness of election petitions

Timeliness requirements for petitions are imposed by section 7111 

of the Statute and implemented in section 2422.12 of the 

regulations. The Statute‟s timeliness requirements apply only to 

petitions seeking an election, whether filed by labor organizations, 

by individuals seeking decertification of an exclusive representative 

or by agencies. 

For detailed guidance on timeliness issues, see RCL 12.

Relevant Information 

A. Election and Certification Bars 

1) Obtain the election agreement or certification of 

representative upon which the party is basing the claim of 

election or certification bar. Given the nature of these bars, 

this should be the only information necessary for the 

record. In a case raising a certification bar, a collective 

bargaining agreement executed by the parties during the 

certification year is also entered into the record. 

2) If the parties dispute whether the petitioned-for unit is the 

same or a subdivision of the unit for which a bar exists, 

obtain evidence which establishes whether the petitionedfor unit is the same unit, a broader unit or a subdivision of 

the unit involved in an earlier election. The Hearing Officer 

strictly limits the evidence on these points. 

B. Contract Bars 

1) In general, the record in all cases involving alleged contract 

bars includes at a minimum: 

a) the positions of all parties on whether the 

agreement constitutes a bar to the petition 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

b) the agreement signed and dated by the parties and 

the reproduced version of the agreement that was 

prepared for distribution 

c) the predecessor agreement to the agreement that 

is asserted to be a bar 

d) documentation showing the date and nature of any 

determination by an agency head pursuant to the 

section 7114(c) process 

e) the document containing the request to renegotiate 

an agreement containing automatic renewal 

provisions and any response(s) to the request. 

2) When a party claims that the collective bargaining 

agreement is not “lawful” and thus, cannot serve as a bar: 

a) Obtain for the record a copy of the agreement and 

any related documents such as evidence of a 

ratification requirement and compliance with such 

a requirement. 

b) Testimony as to the parties‟ interpretation and 

application of the challenged provision(s) is 

necessary. 

3) Where the issue is the effective date of the contract: 

a) Obtain a copy of the agreement at issue. 

b) Obtain copies of any related documents 

concerning the agency head approval process 

(e.g., letter containing the section 7114(c) higher 

agency approval; memorandum of understanding) 

which shed light as to the effective date of the 

contract, approval date or the intent and 

application of the duration provisions of the 

contract. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

c) Obtain testimony concerning the parties‟ 

interpretation and application of the challenged 

provision(s). 

4) Where a party asserts that the contract was automatically 

renewed and thus, bars the petition and/or where a request 

to renegotiate a contract which contains an automatic 

renewal clause is at issue: 

a) Obtain a copy of the agreement at issue. 

b) Obtain copies of any related documents (e.g., letter 

of section 7114(c) higher agency approval; 

memorandum of understanding, etc.) which shed 

light as to the effective date of the contract. 

c) Obtain copies of any documents (e.g., a demand 

to renegotiate the agreement, etc.) that, in 

accordance with the contract‟s terms, may have 

prevented the contract from automatically 

renewing. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

5) Where the ratification of a contract by the union‟s 

membership is an issue: 

a) Obtain a copy of the document containing the 

agreement that the contract would be submitted to 

the membership for ratification and obtain related 

testimony as to the agreement. 

b) If no written agreement exists, obtain testimony 

concerning the nature and extent of the parties‟ 

understanding as to the submission of the contract 

for ratification. If applicable, the union‟s 

constitution and by-laws is entered on the record. 

Testimony and documents regarding the parties‟ 

practice as to ratification votes for prior contracts 

may be necessary in this situation. 

c) Obtain testimony and documents that establish 

that the ratification vote occurred and the results of 

that voting. 

6) Where premature extension of a contract is at issue: 

a) Obtain a copy of the collective bargaining 

agreement, which was extended. This includes any 

documents which shed light on the effective date 

of the collective bargaining agreement, which was 

extended. 

b) Obtain a copy of any documents on which a party 

relies in its assertion that the contract was 

extended. 

c) Obtain testimony concerning the execution 

of the extension. 

C. Unusual Circumstances
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

1) If it is asserted that unusual circumstances exist which 

warrant the filing of an election petition at any time: 

a) Obtain a full and complete record as to the 

changed or unusual circumstances. In general, 

this requires all evidence which would normally be 

obtained, particularly in cases such as those 

involving reorganizations, schism, defunctness or 

severance. See Appropriate Unit: HOG 37, Scope 

of Unit: HOG 38, Reorganizations - HOG 39, 

Schism: HOG 44, etc. 

D. Dismissal, Withdrawal or Disclaimer Bars

1) Where a bar is asserted, based upon the dismissal or 

withdrawal of a petition or a disclaimer of interest: 

a) Obtain the earlier petition, the notice of hearing or 

election agreement. 

b) Obtain the request to withdraw the petition and any 

documentation of the approval of the withdrawal. 

c) Obtain a copy of the disclaimer of representation. 

d) Relevant testimony concerning a withdrawal, 

dismissal or disclaimer bar would include the same 

scope of unit inquiry addressed in the election and 

certification bar section concerning the "same unit 

or a subdivision thereof." 

e) In cases involving withdrawal, dismissal or 

disclaimer bars, if a party attempts to submit 

evidence or testimony in addition to the 

introduction of the withdrawal, dismissal or 

disclaimer, the Hearing Officer asks for an offer of 

proof, as the withdrawal, dismissal or disclaimer 

speak for themselves. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

49 Unit consolidation

 Section 7112(d) of the Statute provides for the consolidation of 

existing units: 

 (d) Two or more units which are in 

an agency and for which a labor 

organization is the exclusive 

representative may, upon petition by the 

agency or labor organization, be 

consolidated with or without an election 

into a single larger unit if the Authority 

considers the larger unit to be appropriate. 

The Authority shall certify the labor 

organization as the exclusive 

representative of the new larger unit. 

For detailed guidance on unit consolidations, see RCL 13.

Relevant information:

1) Basic information corresponding to the appropriate unit criteria 

discussed in HOG 37 and RCL 1. 

2) The degree of commonality and integration of mission and 

functions of the components involved. Discuss the mission and 

organizational structure of the Agency and its relationship to the 

unit sought to be consolidated. Information is sought concerning: 

< the existence of a central office and its authority, personnel 

and administrative functions; 

< regional or field office structure; 

< entities which operate from the central office. 

< There must be a sufficient degree of commonality and 

integration of mission and function to justify the appropriateness of 

the consolidation unit. 

3) The distribution of the employees involved throughout the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

organizational and geographical components of the Agency. This 

is a “primary element” in evaluating whether a community of 

interest exists in consolidation cases. U.S. Department of the Air 

Force, Air Force Materiel Command, Wright-Patterson Air Force 

Base, Ohio (AFMC), 55 FLRA 359, 364 (1999). Consider the 

following: locations of units sought to be consolidated; functions 

and work environment of bargaining unit employees. 

4) The degree of similarity in the occupational undertakings of the 

employees in the proposed unit. Discuss the composition of the 

workforce. Information is obtained concerning: 

< the numbers, types and positions of employees in each 

unit sought to be consolidated, 

< the grade structure of the employees, 

< the supervisory ratio, 

< the total number of employees sought to be consolidated 

and as compared to other employees in the agency or activity that 

are not part of the proposed consolidation. 

5) Bargaining history relating to proposed bargaining unit including: 

dates and copies of recognitions or certifications; information 

concerning the existence of contracts; grievance procedures and 

representation practices and dues checkoff. 

6) Delegation and situs of authority for operations and policy. Who 

formulates and implements policy? How is it implemented? 

Discuss relationship between units and/or headquarters. 

7) Locus and scope of personnel and labor relations authority and 

functions. Information is obtained concerning: 

< the extent there are centralized policies concerning 

personnel and labor relations matters, guidelines, etc.; 

< the parameters of local directors (or unit management) to 

exercise their discretionary authority; 

< the decentralization in implementing personnel policies and 

practices in the field; and 

< whether employees work under similar labor relations 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

policies and procedures. 

This factor does not require that labor relations and personnel 

decisions be processed centrally. AAFES, 5 FLRA at 659. 

“[t]he applicable legal standard looks to whether policy-making 

authority over personnel and labor relations policy is consistent 

with the proposed consolidation, rather than whether the 

administration or „operation‟ of these policies is local or 

centralized.” AFMC at 364. 

8) Degree of interchange between units. Information is obtained 

concerning the frequency and type of interchange that may occur 

between units sought to be consolidated and compare that 

information to the interchange between units in the proposed 

consolidation and other units. To what extent do employees share 

common personnel policies and practices, merit staffing programs 

and areas of consideration for reduction in force? Examine 

commonality in the payroll, hours of work, dress code and other 

working conditions such as hiring, firing, transfer, disciplinary 

actions training programs, awards programs etc. 

9) Examine effective dealings including: 

a) efficient use of negotiation resources derived from 

negotiation of a single contract as compared to multi unit or 

multiple contracts. Past experience of the agency/activity 

and labor organization under a given unit structure in 

making effective dealings determinations. As a general 

matter, the Authority also considers the past collective 

bargaining experience of the parties in making "effective 

dealings" determinations. AAFES, 5 FLRA at 661-62); 

d) whether the unit would adequately reflect the agency's 

organizational structure or would require creating a new 

agency structure. Department of Defense, National Guard 

Bureau and National Federation of Federal Employees, 

Independent, Department of Defense, National Guard 

Bureau and National Association of Government 

Employees, 13 FLRA 232, 237 (1983); Department of 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

Agriculture, Farmers Home Administration and National 

Federation of Federal Employees, Independent, 20 FLRA 

216, 221 (1985). 

e) limitations on the ability to negotiate matters of critical 

concern to employees because of fragmentation of existing 

unit. 

(i) are there any matters that could be negotiated if 

the units were consolidated? 

(ii) would either party take different positions 

on negotiable issues if the unit were 

consolidated? 

(iii) are there any special or unique concerns 

the employees have because of the nature 

of their work or their location; could certain 

local matters best be determined by local 

authority? 

f) likelihood that people with greater expertise in negotiations 

will be available in a larger unit. 

g) level at which labor relations policy is set in the agency; 

training in the implementation of a number of negotiated 

agreements and grievance procedures covering 

employees performing essentially the same duties. 

10) Examine efficiency of agency operations: 

a) benefits to be derived from a unit structure which bears 

some rational relationship to the operational and 

organizational structure of the agency/activity; 

b) do the personnel who have operational authority also have 

authority in labor-management relations? 

c) impact of a given unit structure on agency operations in 

terms of costs, productivity and use of resources. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

(i) cost factors: personnel and impact on productivity 

as a result of one unit; 

(ii) hours spent administering one unit versus many 

units and staffing requirements. 

d) The extent to which the proposed consolidation reduces 

unit fragmentation and as a result, promotes an effective 

bargaining unit structure. See AAFES, 5 FLRA at 661-62. 

In 

Section 7135 of the Statute states the circumstances in which 

recognition may be granted or continued in units which include 

supervisors. Section 7135(a)(2) provides that nothing shall 

preclude: 

the renewal, continuation or initial 

according of recognition for units of 

management officials or supervisors 

represented by labor organizations which 

historically or traditionally represent 

management officials or supervisors in 

private industry and which hold exclusive 

recognition for units of such officials or 

supervisors in any agency on the effective 

date of this chapter. 

Mixed units of supervisors and nonsupervisory personnel: 

The Authority‟s view that section 7135(a)(2) permits the “grand 

fathering" of mixed units of both supervisory and nonsupervisory 

personnel has been rejected by the courts. United States 

Department of Energy v. FLRA (Department of Energy), 880 F.2d 

1163 (10th Cir. 1989), noting that section 7112(b)(1) of the Statute 

prohibits supervisors from being included in bargaining units 

established under the Statute unless their inclusion is expressly 

authorized by section 7135(a)(2) of the Statute. The court held that 

section 7135(a)(2) allows the Authority "to recognize only exclusive 

units of supervisors, not mixed units." Id. at 1167 (footnote 

omitted). 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

11

Units limited to supervisors: The Authority will permit exclusive 

recognition in a unit consisting solely of supervisors in very limited 

circumstances in which a labor organization has: 

 

a) traditionally or historically represented units of 

supervisors in private industry and 

b) held exclusive recognition for a unit of supervisors 

in a federal agency on the effective date of the 

Statute. 

See Department of Energy, Western Area Power Administration, 

38 FLRA 935 (1990). 

 

It is anticipated that few, if any, petitions will be filed concerning the 

establishment of either mixed units or supervisor-only units. If 

petitions are filed seeking to exclude supervisors from existing 

mixed units, relevant information would include evidence to show 

whether the agency gave timely notice to the union of its intention 

to remove supervisors from the existing mixed unit. For more 

information about this topic, see RCL 14.

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

EMPLOYEE CATEGORIES 

HOG 51 through HOG 64 

51 General considerations 

Definitions for terms such as exclusive representative, employee, 

professional, supervisor, labor organization are found in section 

7103 of the Statute. In addition, section 7112 prohibits the inclusion 

in any bargaining unit of specific categories of employees (e.g., 

confidential, engaged in federal personnel work). 

The Authority alone is empowered to determine bargaining unit 

eligibility. See U.S. Small Business Administration (SBA), 32 FLRA 

847 (1988). The Authority makes such determinations based on 

testimony as to an employee's actual duties at the time of the 

hearing, rather than on duties that may exist in the future. See 

Department of Housing and Urban Development, Washington, 

D.C., 35 FLRA 1249, 1256-1257 (1990). Evidence such as a 

position description for a position may be useful in making unit 

determinations, but is not controlling. The hearing addresses 

whether the incumbent is performing all work listed in the position 

description, or is performing other work not listed in the position 

description. Some cases involve special circumstances which are 

also addressed at the hearing. 

For more guidance and discussion about general 

considerations in deciding unit eligibility, see RCL 15.

 

Relevant questions to consider:

For information and questions related to specific statutory 

exclusions, consult the Table of Contents for the employee 

category(ies) at issue. In all unit eligibility cases, Hearing 

Officers obtain information relating to the Agency or Activity’s 

mission, organization and functions. This information is 

crucial for understanding how the disputed employee 

performs his/her work and how it relates to the 

accomplishment of the Agency or Activity’s mission. The 

following questions pertain to special unit determination situations: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

1. Where an employee has recently been placed in the 

position in question: 

a) Obtain a copy of the vacancy announcement, 

position description and performance standards for 

the position. 

b) What duties are the employee currently 

performing? 

c) What has the newly-hired employee been told 

regarding his or her duties? 

d) What types of training has this new employee 

attended, or what type of training is this new 

employee scheduled to attend? 

e) Develop a record, if possible, of the duties of the 

predecessor in the position. 

f) Are there other similarly-situated employees and 

what do they do or have they done? 

2. Is the employee an employee of an agency as defined in 5 

U.S.C. 7103(a)(2) and (3)? 

3. In cases that the parties dispute whether new employees 

are automatically part of an existing unit (as compared to 

accretion - see HOG 39C and RCL 3C), what is the unit 

definition? 

a) Is it “sufficiently broad” to include the disputed 

positions? 

b) Did the parties include these employees previously 

and then remove them from the unit? 

c) Were the employees excluded on a statutory basis 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

previously? 

d) Were the employees in a separate bargaining unit 

at the activity? 

4. If the employees were transferred from another facility, 

they cannot be considered under Department of the Army, 

Headquarters, Fort Dix, Fort Dix, New Jersey (Fort Dix), 53 

FLRA 287 (1997). See RCL 15 and compare to RCL 3. 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

52 Employee within the meaning of the Statute

An “employee” is defined in section 7103(a)(2) of the Statute as an 

individual employed by an “agency,” with certain specific 

exceptions. The definition of employee is very broad and has 

been applied to a wide variety of federal positions established in 

accordance with various laws and regulations. Inquiry into the 

status of individuals as “employees” is not limited to questions of 

whether a particular exception in section 7103(a)(2) applies to the 

position(s) at issue. The threshold question in any case involving 

the status of individuals as “employees” is whether the employees 

are employed by an “agency” as defined in section 7103(a)(3). 

For specific examples and guidance, see RCL 16. 

The following information is relevant in developing evidence 

on this issue:

1) Documentation and testimony showing which entity is the 

employer of the individuals at issue in the petition. 

2) Documentation showing whether the employer is an 

executive agency of the federal government, a subcomponent of a federal agency or other governmental 

entity. 

3) Documentation and testimony describing the relationship 

between the employer and a federal agency. 

4) Where specifically applicable to a particular exception in 

section 7103(a)(3): 

a) Documentation and testimony showing the 

geographic location of the position(s) at issue and 

the citizenship status of the individual(s) occupying 

the position(s); 

b) Documentation and testimony showing whether 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

individual(s) occupying the position(s) at issue are 

military members; and 

c) Evidence as to whether the individual(s) are 

supervisors or management officials; see HOG 62-

Supervisors and HOG 58-Management Officials. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

53 Internal audit / investigation function 

 Section 7112(b)(7) excludes from all bargaining units:

 any employee primarily engaged 

in investigation or audit functions relating 

to the work of individuals employed by an 

agency whose duties directly affect the 

internal security of the agency, but only if 

the functions are undertaken to ensure that 

the duties are discharged honestly and 

with integrity. 

Employees engaged in investigation or audit functions are 

excluded from bargaining units under section 7112(b)(7) on the 

basis that inclusion of individuals performing these functions would 

create a conflict with bargaining unit status. The nature of the 

investigation/audit and what the investigation/audit might uncover 

as it pertains to unit employees is controlling as to this exclusion. 

For guidance on this topic, see RCL 17. 

Relevant matters to cover at a hearing include: 

1) The mission of the agency component in which the 

disputed position(s) are located. 

2) Typically, agency regulations or directives that exist which 

describe the work performed by and the authorities 

possessed by these investigators or auditors. Obtain 

copies of these regulations or directives for the record. 

3) Obtain copies of position descriptions and performance 

standards for the position(s). 

4) Testimony from the incumbent(s) of the disputed 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

position(s) includes a: 

a) description of the specific job functions of the 

employees; 

b) if applicable, description of the type(s) of 

investigatory functions they perform; 

c) if applicable, description of the type(s) of audit 

functions they perform; 

d) discussion on whose behalf in the agency these 

investigations or audits are being performed; 

e) discussion of whether and how the employees 

under investigation directly affect the internal 

security of the agency. 

5) Obtain testimony about what matters are investigated or 

audited. 

a) Provide examples of the examples of the 

investigations of unit employees that the disputed 

employee(s) has performed. 

b) Describe the claims, such as travel vouchers which 

were filed by employees, that the disputed 

employee(s) has audited. 

c) Describe the agency programs that the disputed 

employee(s) has audited. 

d) To what extent is the disputed employee(s) 

“primarily engaged” in investigation and audit 

functions (include percentage of time they spend 

on these investigations or audits; type of work 

performed - reviewing reports prepared by others 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

versus actually conducting the investigation or 

audit). 

e) Explain whether and how the investigation 

functions are undertaken to ensure that the 

employees‟ duties are discharged with honesty 

and integrity. 

For example, in U.S. Department of Justice, 

Federal Bureau of Prisons, U.S. Penitentiary, 

Marion, Illinois (DOJ), 55 FLRA 1243 (2000), in its 

remand, the Authority instructed the Regional 

Director to “consider whether the Legal Assistant‟s 

(the disputed employee) investigations of 

allegations that employees have used excessive 

force or have violated the civil rights of inmates 

constitute investigation of whether such employees 

have performed their duties honestly and with 

integrity.” 

6) Who directs the subject investigations or audits; to whom 

do the subject employees report? 

a) The investigative or audit process is described in 

detail. 

b) The review process of the investigation or audit is 

described in detail. 

c) How do these investigations or audits affect 

bargaining unit employees? 

d) Have any employees been disciplined or removed 

as a result of the investigations or audits performed 

by these individuals? If so, discuss. 

e) Have procedures or programs been changed to 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

enhance or promote internal security as a result of 

an investigation or audit by one of these 

employees? If so, discuss. 

f) Describe the overall effectiveness of the work 

accomplished by the disputed employee(s). 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

54 Administering a labor relations statute 

Three sections of the Statute discuss exclusions based on duties 

related to “administering a labor relations statute.” 

Section 7103(a)(3) excludes from the definition of “agency” the 

Federal Labor Relations Authority and the Federal Service 

Impasses Panel. 

Section 7112(b)(4) excludes from any bargaining unit “an 

employee engaged in administering any provisions of the Statute.” 

This provision includes federal mediators of the Federal Mediation 

and Conciliation Service who were found to administer the 

provisions of Section 7119(a) of the Statute and, therefore, are not 

eligible for representation. Federal Mediation and Conciliation 

Service, Region 7, San Francisco, California, 3 FLRA 138 (1980); 

and Federal Mediation and Conciliation Service, 52 FLRA 1509 

(1997). 

Other federal employees are employed by federal agencies which 

administer statutes that pertain to labor-management relations. As 

to their situation, section 7112(c) provides as follows: 

 Any employee who is engaged in 

administering any provision of law relating 

to labor-management relations may not be 

represented by a labor organization --

 1) which represents other 

individuals to whom such provisions 

applies; or 

 2) which is affiliated directly or 

indirectly with an organization which 

represents other individuals to whom such 

provisions applies. 

Section 7112(c) pertains solely to those employees who are 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

involved in administering a law intended to affect or regulate, in 

some way, the collective bargaining process or other matters 

directly affecting the labor-management relationship. U.S. 

Department of Labor, Pension and Welfare Benefits Administration, 

38 FLRA 65 (1990). Section 7112(c) of the Statute does not 

prohibit these employees from being represented by a union in a 

bargaining unit. Rather, section 7112(c) places restrictions on the 

types of unions that can represent such employees. 

For detailed guidance on these three sections of the Statute, 

see RCL 18. 

Relevant Information: The record includes the following 

information: 

1) Copy of the mission, organization and functional 

statements of the agency employing the employees in 

questions. 

2) Copies of any laws or regulations which this agency 

administers. 

a) Which of these laws or regulations relate to labormanagement relations? 

b) How do these laws or regulations relate to labormanagement relations? 

c) In what way does the law administered by the 

agency intended to affect or regulate, in some way, 

the collective bargaining process or other 

matters directly affecting the labor-management 

relationship? 

3) Copies of the position description and performance 

standards for the positions at issue. 

a) Obtain testimony about the duties of these 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

employees, as they relate to the laws or 

regulations that allegedly involve the collective 

bargaining process? 

b) Examine the duties and responsibilities of the 

employees to determine whether and the extent to 

which the employees administer the law or 

regulation that allegedly involves the collective 

bargaining process. 

 . 

4) What labor organization is seeking to represent these 

employees? 

a) Does this labor organization represent other 

employees? If so, who and in what bargaining 

units? 

b) Is this labor organization affiliated directly or 

indirectly with any other labor organization(s) and 

what units of employees does that labor 

organization(s) represent? 

5) Are there other employees in the agency who are in 

bargaining units; if so, describe. 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

55 Confidential employee 

“Confidential employee” is defined in Section 7103(a)(13) of the 

Statute as: 

 ... an employee who acts in a 

confidential capacity with respect to an 

individual who formulates or effectuates 

management policies in the field of labormanagement relations. 

A unit is not appropriate if it includes confidential employees 

[section 7112(b)(2)]. 

An employee is a "confidential" if (1) there is evidence of a 

confidential working relationship between an employee and a 

supervisor or manager and (2) the supervisor or manager is 

significantly involved in labor-management relations. This two-part, 

labor-nexus test is used to examine the nature of an employee's 

confidential working relationship. See U.S. Department of Labor, 

Office of the Solicitor, Arlington Field Office, 37 FLRA 1371 (1990). 

Both factors must be present for an employee to be considered 

"confidential" within the meaning of section 7103(a)(13). 

 

At a hearing the Hearing Officer explores not only the work of the 

employee whose status as a confidential is in dispute, but also the 

work of the person with whom or for whom the disputed employee 

works. It is also important to focus on the stage at which this 

confidential employee is involved in the process by which 

management labor-relations policies are developed (i.e., is the 

employee present during the development of the policies, or does 

the employee's involvement occur after the management policy has 

been developed and decided). 

For guidance on “confidential employees,” see RCL 19.

 

Relevant information:
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

1) Documentation, such as the mission statement, 

organizational and functional charts of the Activity, locating 

not only where the alleged confidential employee is found 

on the chart, but also the individual(s) for whom the 

employee works in a confidential capacity. 

2) Testimony and documentation as to the actual duties of the 

employee, focusing especially upon the employee's 

assigned tasks that result in the employee being involved 

in labor-management relations. 

a) Obtain testimony from the individual about his/her 

daily routine (obtain a copy of the position 

description and performance standards). 

b) Obtain testimony from the individual about his/her 

participation and attendance at management 

meetings where discussions ensue concerning 

labor relations issues, contract negotiations 

strategies and proposals and personnel policies. 

Determine the involvement of the employee at 

these meetings: note taker, etc. 

c) Obtain testimony from the individual about his/her 

participation in the preparation of management's 

responses for grievances, unfair labor practices, 

negotiation demands, proposed disciplinary 

actions and other personnel actions that may result 

in the filing of grievances under the negotiated 

grievance procedure. 

d) Obtain testimony from the individual about the 

nature and extent of the employee‟s access to 

confidential information concerning other 

employees and management labor relations 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

policies and plans. 

e) Obtain testimony from the individual about the 

types of advice or assistance the employee gives 

to other employees or supervisors or managers in 

labor relations/personnel matters. 

g) What is the percentage of time employee spends 

in above activities? 

h) Percentage of time that the employee spends 

doing other activities such as typing, filing 

documentation constituting labor-management 

materials? 

 

3) Testimony and documentation regarding the individual who 

formulates or effectuates management policies in the field 

of labor-management relations. 

a) Obtain a copy of the position description and 

performance standards. 

b) Obtain testimony from the individual about his/her 

responsibility for establishing, interpreting, or 

implementing personnel/labor relations policies. 

c) Obtain testimony from the individual about his/her 

actual participation in contract negotiations and 

development of contract proposals. 

d) Obtain testimony from the individual about his/her 

participation in handling grievances/arbitrations 

and disciplinary and adverse actions, and obtain 

examples of grievance decisions, replies to 

proposed disciplinary actions, etc. 

e) Obtain testimony from the individual about his/her 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

participation in labor-union meetings? 

f) Obtain testimony from the individual about his/her 

participation and involvement in Equal Employment 

Opportunity Complaints, Merit Systems Protection 

Board Proceedings, awards, and promotions. 

g) What is the nature of this person‟s attendance and 

participation at Agency meetings at which sensitive 

labor relations matters are discussed and 

deliberated? To what extent does this person 

advise, develop, and/or implement negotiating 

positions or proposals? 

h) To what extent is this person involved in preparing 

arbitration cases for hearing? 

i) To what extent does this person consult with 

management regarding the handling of unfair labor 

practice cases? 

j) What is the extent of this person‟s participation in 

the formulation and development of the Agency's 

labor relations policies? 

k) Describe the involvement of the alleged 

confidential employee's involvement in above 

matters, obtaining documents when possible. 

l) To what extent does the employee, in the normal 

performance of his/her duties, obtain advance 

information of management‟s position with regard 

to contract negotiations, the disposition of 

grievances, and other labor relations matters? 

4) Obtain specifics from the Activity concerning the potential 

disruption to or conflict within the Agency's operations 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

which will result if the alleged confidential employee(s) is 

included in the bargaining unit. 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

56 Employees engaged in personnel work

Section 7112(b)(3) of the Statute excludes from an appropriate 

units "an employee engaged in personnel work in other than a 

purely clerical capacity." Employees are considered 

“personnelists” under section 7112(b)(3) if their inclusion in the unit 

would result in a conflict of interest between work duties and union 

membership. 

For detailed guidance on this topic, see RCL 20.

Relevant information: 

1) Documentation, such as organizational charts, of the 

activity, locating where the alleged federal personnelist is 

found on the chart. 

2) Evidence and documentation as to the actual duties of the 

employee, focusing especially upon the employee's 

assigned tasks that result in the employee being involved 

in federal personnel work. Obtain copies of the employee‟s 

position description and performance standards. 

3) Describe the nature of the involvement by this person in 

the preparation and processing of personnel actions 

including hiring, adverse actions, promotions, pay 

increases, transfers, demotions, awards, performance 

appraisals, and training. The party(ies) focus the 

employee‟s testimony on the extent of independent 

judgment exercised by that employee in the performance 

of these duties. 

a) What does this employee do to initiate 

these forms? How independently 

is this person functioning in this 

process? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

b) What does the employee do in the review of these 

forms? Is this person reviewing these forms prior 

to their issuance, for accuracy? 

c) What is this employee‟s involvement in the filing or 

distribution of completed forms. 

4) Describe the nature of the employee‟s involvement in the 

creation of personnel policies or activity policies. 

a) Copies of any such policies are helpful, as is a 

description of the individual's participation in their 

formulation. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

5) Describe the records and information about unit employees 

to which the employee has access and for what purpose? 

6) Describe how the employee advises supervisors and 

managers in personnel matters, such as disciplinary 

matters, responding to grievances, etc. 

a) Copies of personnel actions, grievance responses, 

or other documents which reflect this involvement 

are helpful, as is a description of the employee‟s parti

b) Copies of any personnel or staffing studies 

conducted by the employees is entered in the 

record, along with testimony of the employee‟s 

participation in the studies. 

 

7) Does the individual counsel employees on personnel 

matters, such as retirement benefits, insurance benefits, 

etc. 

a) Copies of documents which reflect this assistance 

to employees are helpful, as is a description of the 

individual's work in these matters. 

b) The employee explains any independent judgment 

s/he exercises in this counseling on the record. 

8) What is this employee‟s involvement in the development or 

implementation of Equal Employment Opportunity 

programs at the activity? 

a) Describe any EEO studies conducted by the 

employee in these matters, studies in which 

contain recommendations as to the attainment of 

EEO goals are of particular importance. 

b) Describe this employee‟s participation in the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

establishment of EEO hiring, educational or 

promotion goals for the activity? 

c) What is the extent of this person's involvement in 

the EEO counseling process? 

d) What is the extent of this person's involvement in 

the EEO investigative process? 

e) What is the extent of this person's involvement in 

the EEO adjudicatory or settlement process? 

57 General attorneys 

Congress intended that attorneys, like other professional 

employees, have the same right to be represented in bargaining 

units that Congress conveyed to other federal employees. 

Membership in a labor organization is in itself not incompatible with 

the obligations of fidelity owed to an employer by its employees. 

See Dun & Bradstreet-II, 240 NLRB 162, at 163 (1979) The 

American Bar Association's (ABA) Model Canons of Professional 

Responsibility is not controlling when making bargaining unit 

determinations under the Statute. 

Some attorneys perform duties which otherwise cause them to be 

excluded from bargaining units. When considering the bargaining 

unit status of an attorney, a complete examination is made of all 

the relevant duties and responsibilities of the individual in the 

position to determine whether the position can be included in the 

unit or whether it must be excluded based upon a statutory 

requirement. For items related to specific confidential or federal 

personnelist exclusions, consult those employee categories in 

HOG 55 and HOG 56 of this manual. For security work, see HOG 

61. For substantive guidance on analyzing evidence, see the 

specific RCL that pertains to the appropriate exclusion being 

claimed.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

Where an attorney is being assigned duties or functions as a 

representative of management, the question may arise as to 

whether inclusion of this attorney would create a conflict of interest. 

In such situations, questions to explore at the hearing are: 

1) Evidence and documentation of any advice and responses 

given or prepared by the General Attorney in labor 

relations and personnel matters to Agency personnel. 

2) Evidence and documentation of representation of the 

agency in hearings before the Merit Systems Protection 

Board, the Equal Employment Opportunity Commission, 

the Federal Labor Relations Authority and arbitration 

hearings, or any other legal proceedings involving unit 

employees. 

3) Evidence and documentation of access to internal 

personnel policy documents and management's internal 

advice and counsel on labor-related matters. Cover the 

areas of contract negotiations, the disposition of 

grievances, action to be taken on proposed disciplinary 

and adverse actions and management's guidance to 

supervisors and managers concerning such issues. 

4) Examine the activities that the incumbent performs that are 

“sensitive” to the government and directly related to the 

protection and preservation of the military, economic, and 

productive strength of the United States, including the 

security of the government in domestic and foreign affairs, 

against or from espionage, sabotage, subversion, foreign 

aggression, and any other illegal acts which adversely 

affect the national defense. Department of Energy, Oak 

Ridge Operations, Oak Ridge, Tennessee, 4 FLRA 655 

(1980). 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

58 Management official 

 "Management official" is defined in section 7103(a)(11) of the 

Statute as: 

. . . an individual employed by an agency 

in a position the duties and responsibilities 

of which require or authorize the individual 

to formulate, determine, or influence the 

policy of the agency. 

A unit is not appropriate if it includes management officials [section 

7112(b)(1)]. 

For specific guidance on management officials, see RCL 22.

Relevant information includes: 

1) Documentation, such as the mission statement, 

organization and function charts of the Activity that locate 

the alleged management official. 

2) Testimony from the employee of his/her actual duties and 

responsibilities and documentation including: 

a) a copy of the position description and performance 

standards of the employee. 

b) Given the nature of the work performed by a 

management official, copies of any agency 

regulations or directives which address the 

authorities and responsibilities of this position. 

3) What decisions are made by the employee in the 

performance of the job? Obtain copies of policies, 

regulations, directives, etc. issued by the employee. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

a) What is the scope of the authority of the 

employee (i.e., what types of 

decisions does s/he have authority 

to make). 

b) To what extent does the employee draft and 

implement rules, regulations, 

directives, binding decisions that 

interpret laws? 

c) What is the affect of any decision made and who is 

affected by the decision? 

d) Are these decisions made pursuant to established 

policies or regulations? If so, obtain copies of the 

relevant documents. 

4) Do some or all of the decisions of the employee require 

higher agency approval? 

a) The steps of the review process are be welldocumented for the record. Obtain copies of 

policies, regulations, directives, etc. written by the 

employee, that have been through this review 

process. 

b) If the decisions must be approved by higher 

agency officials, how often are the decisions of the 

employee approved? How often are they 

disapproved? 

5) Are the decisions of the employee subject to any type of 

review process? 

a) The steps of the review process are welldocumented for the record. Copies of the 

employee's policies, regulations, directives, etc. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

that have been through this review process are 

entered into the record. 

b) If the decisions or recommendations must be 

reviewed, how often are they accepted? How often 

are they rejected? 

6) The employee actually may not be making policy, but may 

be making recommendations as to the formulation of 

policies. Obtain copies of recommended policies, 

regulations, directives, etc. drafted and copies of the final 

policy, regulation, directive, etc. issued. Describe the 

employee‟s involvement in the making of policy. 

a) The steps of the recommendation process are 

well-documented for the record. 

b) How often are the recommendations of the 

employee adopted? How often are they 

disapproved? 

7) Does the employee attend supervisory or managerial 

meetings? 

a) What is typically discussed at these meetings? 

How often are they held? Obtain minutes of these 

meetings, if possible. 

b) How often does this employee attend these 

meetings? 

c) What is the nature of the employee's participation 

at these meetings? 

8) What is the employee's responsibility concerning the 

Agency's operations or policies? Obtain specific examples 

with documentation. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

9) If the employee is not making policy determinations or 

making recommendations as to policies, what exactly, is 

the level of participation by the employee in formulating, 

developing, determining or influencing Agency policies. 

Obtain specific evidence concerning the exact nature of 

this participation. 

Evidence concerning information in items “1" and “3" through “7" 

are obtained through testimony and documentation introduced by 

supervisor(s) of the disputed employee, operational managers, 

employees in similarly situated positions, as well as the employee. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

59 Professional employee 

 Section 7103(a)(15) of the Statute defines a professional employee 

as: 

 (A) an employee engaged in the 

performance of work--

 (i) requiring knowledge of an 

advance type in a field of science or 

learning customarily acquired by a 

prolonged course of specialized intellectual 

instruction and study in an institution of 

higher learning or a hospital (as 

distinguished from knowledge acquired by 

a general academic education, or from an 

apprenticeship, or from training in the 

performance of routine mental, manual, 

mechanical, or physical activities; 

 (ii) requiring the consistent 

exercise of discretion and judgment in its 

performance; 

 (iii) which is predominately 

intellectual and varied in character (as 

distinguished from routine mental, manual, 

mechanical, or physical work; and 

 (iv) which is of such character that 

the output produced or the result 

accomplished by such work cannot be 

standardized in relation to a given period 

of time; or 

 B) an employee who has 

completed the course of specialized 

intellectual instruction and study described 

in subparagraph (A)(I) of this paragraph 

and is performing related work under 

appropriate direction or guidance to qualify 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

the employee as a professional employee 

described in subparagraph (A) of this 

paragraph. 

For specific guidance on this topic, see RCL 23. 

Relevant questions to determine professional status include the 

following: 

1) What are the specialized educational or training 

requirements for this position? 

a) The X-118 standards for the position and grade in 

dispute may be helpful. 

b) What did the vacancy announcement of this 

position state as to educational and/or training 

requirements? 

c) What did the vacancy announcement of similar 

positions state as to educational and training 

requirements? 

d) Does the person whose position is in dispute have 

these educational or training prerequisites? 

e) What state licenses or memberships in 

professional associations does this person 

possess and are they needed for the position? 

2) Describe the duties of this position and the nature of the 

work. 

a) The employee describes his/her duties. Are the 

duties routine, varied, standardized, manual, 

mental? 

b) Examples of documents or reports authored by this 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

individual in his/her employment capacity may be 

helpful, as would be testimony as to how such 

documents were created. 

c) What is the nature of supervision given to the 

employee? 

d) Describe the independent judgment or discretion 

that is exercised. 

e) Is work predominately intellectual and varied in 

character as distinguished from routine, mental, 

manual, mechanical or physical? Description of 

the work performed, including examples of the 

work is vital. 

f) Is the work of such a character that the output 

produced or the result accomplished cannot be 

standardized in relation to a given period of time? 

Examples of work performed is essential. 

g) Describe how the work requires knowledge of an 

advanced type in a field of science or learning 

customarily acquired by a prolonged course of 

specialized intellectual instruction and study in an 

institution of higher learning or hospital. Distinguish 

this from a general academic education or from an 

apprenticeship or training in the performance of 

routine mental, manual, or physical processes? 

h) Is the employee in question, otherwise qualified, 

working under the close supervision of a 

professional employee in preparation for becoming 

a professional? If so, explain the working 

relationship. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

 

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

60 Schedule C positions 

 “Schedule C” positions are described in 5 C.F.R. 213.3301: 

Section 213.3301 Positions of a confidential or 

policy-determining character. 

Upon specific authorizations by OPM, or 

under the terms of an agreement with 

OPM, agencies may make appointments 

under this section to positions which are 

policy-determining or which involve a close 

and confidential working relationship with 

the head of an agency or other key 

appointed officials. Positions filled under 

this authority are excepted from the 

competitive service and constitute 

Schedule C. ... 

Neither the definition of “employee” in section 7103(a)(2) of the 

Statute nor the specific unit exclusions set forth in section 7112(b) 

of the Statute references Schedule C employees. 

The same eligibility factors considered when determining if any 

employee is to be included in a bargaining unit are applied to 

determining unit eligibility of Schedule C employees. 

See also RCL 24 for more information on Schedule C 

positions. 

For questions related to specific Statutory exclusions, consult 

the Table of Contents for the employee category(ies) at issue. 

In addition to questions concerning specific categories, other 

relevant questions include the following: 

1. Evidence and documentation of the basic mission, 

organization and operations of the agency. This area 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

corresponds to the community of interest of the disputed 

employees with unit employees. (See also RCL 1 - 

Appropriate Unit Determinations - also HOG 37 for a 

discussion of community of interest). 

2. To what extent are the conditions of employment for the 

disputed employee(s) similar or dissimilar to bargaining 

unit employees? Areas of consideration include: 

a. Method of appointment 

b. Promotion procedures 

 

c. Removal and reduction in force policies 

 

d. Compensation and retirement programs 

 

e. Performance appraisal 

 

f. Benefits, including life and health insurance 

 

g. Security investigations, drug testing policies 

3. Discuss the duties and functions of the disputed 

employee(s) and of the employees included in the 

bargaining unit. Describe the work that the disputed 

employee(s) performs and compare with the work of the 

bargaining unit employees. Include information on how the 

disputed employee(s) is assigned work, and performs work 

as compared to bargaining unit employees. Do the 

disputed employee(s) and the bargaining unit employees 

share common supervision? 

4. To what extent are the disputed employee(s) in a close and 

confidential working relationship with the head of the 

agency or other key appointed official? 

5. To what extent does the disputed employee(s) participate 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

in policy-making with the head of the agency or other key 

appointed officials? 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

61 Security work

Generally, employees engaged in intelligence, counterintelligence 

or national security work are excluded from bargaining units. Three 

sections of the Statute address these exclusions: 

Section 7103(a)(3) specifically excludes from the definition of 

"agency" the following agencies engaged in national security work: 

(1) the Federal Bureau of Investigation; (2) the Central Intelligence 

Agency and (3) the National Security Agency. Thus, employees of 

these agencies cannot be in any bargaining units. 

Section 7103(b)(1) allows the President to exclude employees of 

certain agencies or subdivisions from coverage of the Statute. This 

section provides: 

 The President may issue an order excluding any 

agency or subdivision thereof from coverage under this 

chapter if the President determines that- 

 (A) the agency or subdivision has 

as a primary function intelligence, 

counterintelligence, investigative, or 

national security work, and 

 (B) the provisions of this chapter 

cannot be applied to that agency or 

subdivision in a manner consistent with 

national security requirements and 

considerations. 

In the past, Presidents have excluded entire agencies or 

subdivisions thereof from coverage of the Statute. 

Section 7112(b)(6) excludes employees in certain categories from 

all bargaining units. This section applies to specific positions, 

rather than to an agency or subdivision. Section 7112(b)(6) 

excludes from any bargaining unit: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

any employee engaged in intelligence, 

counterintelligence, investigative, or 

security work which directly affects 

national security. 

Under section 7112(b)(6) the Activity must show (1) that the 

individual employee is engaged in the designated work, and (2) 

that the work directly affects national security. 

For specific guidance on each of these sections, see RCL 25.

Relevant information includes:

1) Evidence of the mission of the agency, activity or 

subdivision in which the disputed position(s) are located. 

a) Does the mission relate to the military, economic 

and productive strength of the United States? 

b) In what respect does the work of the agency relate 

to the national security of the government? 

2) Obtain organizational charts which identify the disputed 

position(s). 

a) What is the chain of command of the employee in 

the position at question? 

3) What are the duties of this employee, as they relate to 

intelligence, counterintelligence and national security 

matters? 

a) Obtain testimony from the disputed employees and 

a copy of their position descriptions for the 

position(s) at issue. 

b) To qualify for the position, what type of security 

clearance (e.g., secret, top secret) is the employee 

required to maintain? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

c) What level of security clearance does the 

employee have? 

d) Given the nature of this work, most likely agency or 

activity regulations exist, which describe and limit 

the authorities of an employee in this position. 

These documents are entered in the record. 

4) Information as to the relationship of the position to 

intelligence, counter-intelligence or national security work. 

a) Describe how this employee is involved in cases 

involving espionage, illegal drug sales, hijacking, 

kidnaping, and acts of terrorism. 

b) Describe how this employee is involved in 

planning, directing and coordinating a command 

security system which includes security of 

information, personnel and operations. 

c) Does this employee maintain a vault or have 

access to a vault where top secret material is kept? 

How the employee maintains the vault and a 

description of the full range of his/her duties are 

necessary. 

d) Describe the involvement of this employee in the 

operation of special communication systems used 

to communicate top secret material. The 

employee describes this system as extensively as 

possible as well as the employee‟s duties 

regarding the system. Often, due to the nature of 

the materials handled, this is difficult, since no one 

at the hearing has the proper clearances and 

representation hearings are public proceedings. 

5) How is this employee involved in the granting of security 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

clearances? 

a) Does the employee conduct investigations into 

individuals regarding the granting of security 

clearances and make recommendations, or grant 

such clearances? The investigatory process is 

described. 

b) Is this employee functioning only as a fact-finder in 

reviewing applicants for positions, and is not 

otherwise involved in hiring determinations? The 

employee describes the way that s/he performs 

his/his work. 

6) How is this employee involved with classified information? 

a) Does the employee maintain a classified material 

system and/or review classified material? The 

parties explore fully the employee‟s responsibilities 

and duties. 

b) Does the employee control access to or the 

release of classified information or destroy 

information as needed as part of a system of 

protecting records? The employee describes 

his/her responsibilities and duties. 

c) What is the classification level of the material this 

person handles (i.e., secret, top secret, crypto)? 

7) If the position is a clerical one, a description of the actual 

work performed by the clerical is most important, so that 

determinations can be made as to whether the clerk‟s work 

is routine in nature, as it pertains to the sensitive 

documents. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

62 Supervisors 

 Section 7103(a)(10) of the Statute defines "supervisor" as: 

 

an individual employed by an agency having 

authority in the interest of the agency to hire, 

direct, assign, promote, reward, transfer, furlough, 

layoff, recall, suspend, discipline, or remove 

employees, to adjust their grievances, or to 

effectively recommend such action, if the exercise 

of the authority is not merely routine or clerical in 

nature but requires the consistent exercise of 

independent judgment, except that, with respect to 

any unit which includes firefighters or nurses, the 

term „supervisor‟ includes only those individuals 

who devote a preponderance of their employment 

time to exercising such authority. 

See RCL 26 for detailed guidance on supervisory criteria and 

the analytical framework for analyzing unusual positions 

subject to this Statutory exclusion. 

Relevant information: 

1) Documentation, such as organizational charts, of the 

activity, locating the work group involved and the general 

hierarchy of that portion of the activity. 

2) Evidence and documentation as to the actual duties of the 

individual, focusing on the tasks that allegedly result in 

supervisory status. 

a) Obtain a copies of the position descriptions 

and performance standards of the 

individual and subordinates. 

b) Documentation of the names of and positions held 

by subordinates. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

c) Describe the work done by the alleged 

subordinates. 

d) Describe how the work performed by the alleged 

supervisor differs from or is similar to that of 

subordinates? 

3) Describe the extent and nature of the individual's 

involvement in the hiring process? 

a) Does the individual participate in the interviewing 

of applicants? How many times has s/he 

participated in interviews? 

b) Does the individual make recommendations as to 

whom to hire? If so, how often are those 

recommendations adopted? How many times has 

the individual made such recommendations? 

When did this occur. 

c) Does the individual act as the selecting official in 

hirings and promotions? How often does this 

occur? Obtain documentation of this. 

4) Describe the extent and nature of this person's involvement 

in the assignment of work. 

a) Does the individual distribute work? Is this 

distribution of work based upon written guidelines? 

b) Does individual reassign work? The process by 

which work is reassigned is explored in detail. 

c) How is this individual involved in determining the 

number of employees to be used on which 

projects? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

d) Does individual distribute work in accordance with 

his/her evaluation of the capabilities of employees. 

e) How are overtime assignments made? 

f) Does the individual schedule or prioritize work? 

g) Does the individual maintain records of employee 

performance? 

h) To what extent is the individual responsible for the 

completion and quality of the work from the work 

group? 

I) To what extent does the individual rely on 

instructions from others or on standard operating 

procedures in assigning work? 

j) Does the individual instruct employees on how to 

perform the work? 

k) Does this individual have the authority to approve 

leave? 

l) Has this individual denied a leave request or 

absence from the job, on the basis of workload 

requirements? 

5) How does this individual become involved in the detail, 

transfer or reassignment of employees within the activity? 

a) Has this person recommended the detail, transfer 

or reassignment of any employee(s)? 

b) If so, how many of the recommendations were 

followed? How many were not? 

c) Does this person have the authority to detail, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

transfer or reassign employees within the activity? 

If so, using specific examples, describe his/her role 

in the process. 

6) Does this person have the authority to suspend, discipline 

or remove employees? 

a) Has this person counseled, disciplined or removed 

any employees? 

b) Has this person recommended that an employee 

be counseled, reprimanded, suspended or 

removed? Describe how that recommendation 

was processed and whether the employee was 

disciplined in any way. 

c) Have grievances under the negotiated grievance 

procedure been filed, challenging this disciplinary 

action? 

7) Is this individual involved in the performance appraisal 

process? 

a) Does this individual complete annual performance 

appraisals for employees? Obtain copies of the 

appraisals. 

b) How are these evaluations used in promotion 

actions, the granting of awards, reemployment 

decisions? 

c) Does this individual have the authority to promote 

employees? To recommend their promotion? 

How often are his/her recommendations followed? 

8) Does the individual participate in or determine when and 

which employees will be furloughed, reduced in force or 

recalled? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

9) How is this individual involved in the grievance process? 

a) Have any actions taken by the individual been the 

subject of a grievance? Using such a grievance, 

the parties develop the record as to the 

involvement of the individual in the grievance 

process. 

b) Have any recommendations made by the individual 

been the subject of a grievance? Using such a 

grievance, the individual explains his/her 

involvement of in the grievance process. 

c) Has this individual adjusted any grievances? 

Examples of such adjustments are entered into the 

record. 

10) What is the involvement of this person in other matters, 

which might shed light on supervisory authority. 

a) In connection with this position, has this person 

attended supervisory training? Is such training a 

prerequisite for the position? 

b) Does this person attend supervisory or 

management meetings? The witness describes 

these meetings in detail, covering how often they 

are conducted, who attends and what transpires at 

these meetings. 

c) Does this person have the authority to approve or 

deny leave? Are there any minimum staffing 

guidelines that the person follows when 

considering if leave should be approved? 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

63 Firefighters and nurses 

Section 7103(a)(10) of the Statute contains a special definition of 

"supervisor" as it pertains to firefighters and nurses, stating that 

with respect to any unit including firefighters or nurses, the term 

"supervisor" includes only those individuals "who devote a 

preponderance of their employment time exercising 

supervisory authority." 

The Statute contains no definition of "nurse" and no specific 

meaning of the term “nurse” has been developed through Authority 

cases. Section 7103(a)(17) of the Statute defines "firefighter" as: 

 ...any employee engaged in the 

performance of work directly connected with the 

control and extinguishment of fires or the 

maintenance and use of firefighting apparatus and 

equipment. 

There are two important aspects to the statutory definition of a 

supervisory firefighter or nurse. The supervisory firefighter or nurse 

must spend a preponderance of employment time engaged in 

supervisory functions. 

For guidance when analyzing the supervisory status of nurse 

or firefighter positions, see RCL 27.

Relevant questions as to supervisory indicia can be found in 

HOG 62. The following information is also developed in cases 

involving the supervisory status of firefighters and nurses: 

l) Testimony and documentation concerning the mission of 

the agency or activity and the organizational structure of 

the fire department or activity to which the firefighters are 

assigned. 

a) Testimony concerning the duties of the incumbent 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

and copies of the position description and 

performance standards for the position in question. 

b) For the position in dispute, what does the 

employee do, in the furtherance of fighting fires, 

utilizing firefighting apparatus, etc.? 

c) Any special pay and retirement benefits enjoyed by 

the employee because s/he is a firefighter is 

included in the record. 

d) What are the work schedules of supervisors and 

employees? 

e) Describe the supervisory duties performed by this 

employee. (See HOG 62 and RCL 26) 

f) Describe the amount of time the employee spends 

in these supervisory duties during his/her given 

shift. 

g) Explore the difference, if any, between duties of 

the position in dispute and the duties of other 

employees who work in the same area. 

h) What is the frequency of contact with other 

employees by the employee whose position is in 

dispute? 

2) Documentation concerning the mission of the agency or 

activity and the organizational structure of the hospital, 

clinic or activity to which the nurses are assigned. 

a) Testimony concerning the duties of the incumbent 

and copies of the position description and 

performance standards for the position in question. 

b) Educational requirements for the position at issue. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

c) Hours of work or type of work schedule worked by 

the employee, whose position is in dispute, and 

others in the work area. 

d) Describe the supervisory duties performed by this 

employee. (See HOG 62 and RCL 26) 

e) Describe the amount of time the employee spends 

in these supervisory duties during his/her given 

shift. 

f) Have the employee testify about the amount of 

time s/he spends in patient care. 

g) Where does this employee work and where do the 

alleged subordinates work. 

 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

64 Temporary employees

Agencies may hire employees to “temporary” or “term” 

appointments of fixed durations, as defined in 5 C.F.R. 316. 

Temporary or term employees may be included in a unit with other 

employees, as long as their inclusion would otherwise be 

appropriate. In addition, a separate unit of temporary employees is 

appropriate, as long as the unit meets the criteria of section 

7112(a)(1) of the Statute. 

For detailed guidance on making unit determinations involving 

“temporary” employees, see RCL 28.

Relevant information includes:

1) Documentation as to the type of appointment of these 

employees. 

a) Any statutes, federal regulations or executive 

orders which govern these appointments is 

obtained. 

b) Any agency regulations which govern these 

appointments is obtained. 

2) For those who have limited tenure, pursuant to their 

appointment: 

a) The number of months or years commonly worked 

by employees, serving in this appointment. It may 

be necessary to explore, over a period of several 

years, how persons in this appointment have been 

employed. 

b) Pursuant to law, executive order or federal 

regulation, must the person in this limited tenure 

appointment be converted to permanent tenure 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

after a certain period of time. Has the activity 

complied with this requirement? 

c) Historically, have employees in this limited-tenure 

appointment competed for and been given 

appointments of permanent tenure. 

d) Whether, and how frequently do employees with 

limited tenure receive new appointments with the 

same or different tenure - and how long does this 

usually go on? 

3) Documentation as to the hours of work of these 

employees. 

a) Is there a guarantee of a certain number of hours? 

b) What is the pattern of number of hours worked by 

these employees, per week, per month, per year. 

4) Do these employees who have limited tenure appointments 

share in a community of interest with those on permanent 

appointments? 

a) Do they share in the same supervision? 

b) Do they work side-by-side with permanent 

employees? 

c) What are their assigned duties and what are the 

duties assigned to those having permanent 

tenure? 

d) What are the hours of work of those on limited 

tenure appointments and what are the hours of 

work of permanent employees? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

e) Who handles personnel matters for those who 

have limited tenure and those who have 

permanent tenure? 

f) What type of benefits (e.g., health, retirement, etc.) 

do temporaries enjoy? Are these the same types 

of benefits that permanent employees enjoy? 

g) Are temporary employees in the same competitive 

areas for RIF as are permanent employees? 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

Figure 34.4 

S REPORT

Case 

Name:______________________________________________________

_____ 

Case Number: 

____________________________________________________________

____

Hearing Officer: 

____________________________________________________________

____

1. Pleadings: 

(a) Petition filed on _______________________________ 

 (date) 

(b) Hearing on __________________________ (date(s)) at 

______________________(place) 

(c) Parties: 

Agency/Activity: 

_______________________________________________

___

Petitioner: 

_______________________________________________

___

Intervenor: 

_______________________________________________

___

Intervenor: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

_______________________________________________

___

2. Issue(s): Summarize the matters that were in issue at the hearing 

and the pertinent evidence with respect to each issue. 

 ____ Appropriate Unit: 

 ____ Eligibility: 

____ Clarification or amendment relating to recognition or 

certification (explain): 

____ Clarification or amendment relating to matter relating to 

representation (explain): 

 ____ Timeliness: 

 ____ Consolidation: 

____ Determinative challenged ballots: 

____ Other: 

 

3. Procedure: Discuss any unusual or significant problems affecting 

the proceeding and/or any rulings made as to which the Hearing 

Officer is in doubt: 

List only those rulings on important or unusual questions as to 

which the Hearing Officer is in doubt, such as rejection of offer of 

proof, refusal to issue subpena, denial of motion to intervene. It is 

not necessary to list rulings on motions to correct names, places, 

minor amendments of petition, denials of motions to strike 

testimony, etc. 

4. Bar(s) to Election:

 In Issue_________________ Not in Issue _________________ 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

Indicate alleged bar in issue; i.e., agreement bar, election bar or 

certification bar, positions of the parties and summary of the 

relevant evidence. 

5. Showing of Interest: (see CHM 18.15) 

____ FLRA Form 52 attached 

____ Showing of Interest (not) adequate for unit contended 

appropriate by Activity and/or incumbent-intervenor 

 ____ Showing of Interest (not) adequate for alternative unit(s) 

acceptable to petitioner 

____ Showing of Interest (not) adequate in relation to (inclusion) 

(exclusion) of classification(s) in issue 

6. Stipulations: List the stipulations. 

7. Recommendations made on the record: Review the instructions 

given by the Regional Director concerning making 

recommendations on the record. Note the issue and the 

recommendations made. 

8. Other Issue(s) or Problem(s): Summarize relevant facts regarding 

any issue(s) or problem(s) not covered under any of the above 

paragraphs; e.g., status of labor organization. 

9. Briefs: 

a. Will briefs be filed? ____ 

b. Due date: ____ 

10. s estimate of transcript pages: ____ 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

Dated: _____________________________ 

__________________________________ 

 

 Hearing Officer 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

Figure 35 

HEARING OFFICER’S SCRIPT

 ON THE RECORD. THE HEARING WILL BE IN ORDER. 

THIS IS A FORMAL HEARING IN THE MATTER 

OF............................, CASE 

NUMBER.............................................BEFORE THE FEDERAL 

LABOR RELATIONS AUTHORITY. 

Read the entire caption of the case from the notice of hearing. 

THE HEARING OFFICER APPEARING FOR THE FEDERAL 

LABOR RELATIONS AUTHORITY IS .............................. 

WILL REPRESENTATIVES FOR EACH OF THE PARTIES 

PLEASE STATE THEIR APPEARANCE FOR THE RECORD, 

INCLUDING TITLE, ADDRESS AND ZIP CODE? 

 FOR THE (ACTIVITY) (AGENCY)? 

 FOR THE PETITIONER? 

 FOR THE INTERVENOR(S)? 

If appearance is by an attorney, obtain full name of law firm. 

Appearance by a labor organization representative must also show 

the national with whom affiliated. 

I WISH TO INFORM ALL PARTIES THAT THE OFFICIAL 

REPORTER MAKES THE ONLY OFFICIAL TRANSCRIPT OF 

THESE PROCEEDINGS AND ALL CITATIONS IN BRIEFS OR 

ARGUMENTS MUST REFER TO THE OFFICIAL RECORD. 

AFTER THE CLOSE OF THE HEARING ONE OR MORE OF THE 

PARTIES MAY WISH TO HAVE CORRECTIONS MADE IN THE 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

RECORD. ALL SUCH PROPOSED CORRECTIONS, EITHER BY 

AN AGREED STATEMENT, STIPULATION, OR MOTION SHALL 

BE MADE IN WRITING TO THE REGIONAL DIRECTOR. 

I WISH TO STRESS THE FACT THAT ALL MATTERS SPOKEN 

IN THE HEARING ROOM ARE RECORDED BY THE OFFICIAL 

REPORTER WHILE THE HEARING IS IN SESSION. IN THE 

EVENT THAT ANY OF THE PARTIES WISHES TO MAKE OFFTHE-RECORD REMARKS, REQUESTS TO MAKE SUCH 

REMARKS ARE DIRECTED TO THE HEARING OFFICER AND 

NOT TO THE OFFICIAL REPORTER. STATEMENTS OF 

REASONS IN SUPPORT OF MOTIONS AND OBJECTIONS 

SHOULD BE AS CONCISE AS POSSIBLE. OBJECTIONS AND 

EXCEPTIONS MAY, UPON APPROPRIATE REQUEST, BE 

PERMITTED TO STAND TO AN ENTIRE LINE OF 

QUESTIONING. AUTOMATIC EXCEPTIONS WILL BE ALLOWED 

TO ALL ADVERSE RULINGS. 

THE SOLE OBJECTIVE OF THE HEARING IS TO ASCERTAIN 

AND INQUIRE INTO THE RESPECTIVE POSITIONS OF THE 

PARTIES AND TO OBTAIN A COMPLETE AND FULL FACTUAL 

RECORD UPON WHICH A DECISION MAY BE BASED. IT MAY 

BECOME NECESSARY FOR THE HEARING OFFICER TO ASK 

QUESTIONS, AND TO EXAMINE WITNESSES, WITH RESPECT 

TO MATTERS NOT RAISED OR PARTIALLY RAISED BY THE 

PARTIES. THE SERVICES OF THE HEARING OFFICER ARE 

EQUALLY AVAILABLE TO ALL PARTIES TO THIS 

PROCEEDING. 

AFTER THE CLOSE OF THE HEARING, THE REGIONAL 

DIRECTOR WILL ISSUE A DECISION AND ORDER. 

1. Receiving formal papers in evidence: (see HOG 4.1, 10.2.2 and 

32.4)

I NOW PROPOSE TO RECEIVE THE FORMAL PAPERS INTO 

THE RECORD. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

THE PARTIES WERE AFFORDED THE OPPORTUNITY TO 

EXAMINE THE PAPERS PRIOR TO THE OPENING OF THIS 

HEARING. 

ARE THERE ANY OBJECTIONS TO RECEIVING IN EVIDENCE 

THE FORMAL PAPERS AS AUTHORITY EXHIBITS MARKED la 

THROUGH 1....... FOR IDENTIFICATION? 

 HEARING NO OBJECTION, THEY ARE RECEIVED INTO THE 

RECORD. 

A party is allowed to state its objections, in full, on the record. If the 

objection is raised as to the admissibility of an exhibit, the Hearing 

Officer explains that the formal papers are necessary to the 

Authority's jurisdiction in the matter, that receipt of the exhibits in 

evidence does not establish the truth of the matters contained 

therein, that any relevant evidence may be introduced irrespective 

of the contents of the exhibits and, in any event, the Regional 

Director will pass on the admissibility of such exhibits and any other 

evidence. 

If the other party does not withdraw its objection after this 

explanation, the objection is overruled. 

If a party seeks to raise an issue or makes a motion on any matter 

unrelated to the formal papers (e.g., intervention, showing of 

interest, etc.,) before all papers are received in evidence, ruling by 

the Hearing Officer on that motion is deferred until after disposing 

of Authority exhibits. 

If an issue is raised regarding: 

a) the adequacy of the showing of interest, see section 33.1; 

b) the validity of the showing of interest, see section 33.2; 

c) the status of a labor organization, see section 33.3; or 

d) or motion to dismiss petition, see section 18.3 

of this Guide. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

2. Ascertaining correct names of parties: (see HOG 3 and 

32.5)

MR./MS. ..., IS THE NAME OF THE ACTIVITY AND THE AGENCY 

APPEARING ON THE PETITION NAMELY, .... CORRECT? 

MR./MS. ..., IS THE NAME OF THE PETITIONER APPEARING 

ON THE 

PETITION, 

NAMELY ... 

CORRECT? 

MR./MS. ................, IS THE NAME OF THE INTERVENOR 

APPEARING ON THE PETITION/NOTICE OF HEARING, 

NAMELY, ... CORRECT? 

If a party states that its name is not correct, the party enters the 

correct name for the record, after which the Hearing Officer reads 

the following statement into the record: 

ARE THERE ANY OBJECTIONS TO HAVING THE PETITION 

AND THE OTHER FORMAL PAPERS AMENDED SO THAT THE 

NAME OF THE (ACTIVITY, AGENCY, PETITIONER, 

INTERVENOR) WILL APPEAR CORRECTLY IN THE CAPTION 

AS ................? 

The affiliation, if any, with national, international, and/or parent 

federation, is given in full. 

No abbreviation in the name of a labor organization is permitted, 

except in the single instance of AFL-CIO. 

The correct name of a labor organization, as provided by its 

representative, need not be supported by documentary evidence or 

testimony. 

3. Other motions to amend the petition: If the Hearing Officer 

knows in advance (as a result of prehearing discussions) that the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

petition will be amended, it is amended at this time (see HOG 18.7 

and 32.6 for instructions on handling amendments to petitions). 

4. Intervention and cross-petition: Motions to intervene and crosspetitions that were filed immediately prior to the opening of the 

hearing are reviewed and, if necessary, ruled on (see HOG 17.4, 

23 and 32.7).

 (A)(1) When the motion to intervene is being granted: 

MR./MS. .....,YOUR MOTION TO INTERVENE, ON BEHALF OF 

....., IS GRANTED.

 (2) If the Hearing Officer has any doubt as to the propriety of 

permitting intervention, s/he states the following: 

 MR./MS. ......,YOUR MOTION TO INTERVENE, ON 

BEHALF OF ...., IS GRANTED, CONDITIONALLY (if necessary, 

AND SUBJECT TO A SUBSEQUENT CHECK OF THE 

SUFFICIENCY OF THE SHOWING OF INTEREST). A FINAL 

DECISION IS BEING RESERVED FOR THE REGIONAL 

DIRECTOR. 

(B)(1) With respect to cross-petitions: 

 WITH RESPECT TO THE CROSS-PETITION, WHAT ARE 

THE POSITIONS OF THE PARTIES ON CONSOLIDATING THE 

CROSS-PETITION WITH THE PETITION PRESENTLY BEFORE 

THE HEARING OFFICER? 

 ON THE BASIS OF A DISCUSSION WITH THE 

REGIONAL DIRECTOR, THE REGIONAL DIRECTOR HAS 

DECIDED TO CONSOLIDATE / NOT TO CONSOLIDATE THE 

CROSS-PETITION WITH THE PETITION PENDING BEFORE 

THIS HEARING OFFICER. 

 (2) If the petitions are consolidated: 

 I WILL NOW INTRODUCE THE CROSS-PETITION AS 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

AUTHORITY EXHIBIT #... 

ARE THERE ANY OBJECTIONS TO RECEIVING INTO 

EVIDENCE AUTHORITY EXHIBIT # ...........? 

HEARING NO OBJECTION, AUTHORITY EXHIBIT # ............ IS 

RECEIVED. 

 (3) If the intervention or cross-petition is filed during the 

hearing: the Hearing Officer will ask the party to state the 

grounds for the request and the reasons for the delay in 

filing. The Hearing Officer will then contact the Regional 

Director (or acting RD) to discuss the reasons for the 

party‟s delay in filing. If it appears that the party requesting 

intervention has shown good cause for granting an 

extension to the timeliness requirements, the Regional 

Director may allow the Hearing Officer to grant 

“conditional” intervention. If it does not appear that the 

party‟s untimely intervention warrants further consideration, 

the Regional Director will instruct the Hearing Officer to 

refer the intervention request to the Regional Director for 

action (see HOG 17.4, and 18.4 and 23 for cross-petitions). 

5. Other prehearing motions presented by the parties upon 

opening the hearing: Other motions are handled similarly to 

those discussed above (see HOG 18, 24, 32.8 and 33).

6. Outlining the issues presented by the petition: The following 

are examples of scripts which concern issues that are commonly 

raised in petitions. (see HOG 32.9, 2 and 3.8) 

a. Appropriate unit: (see HOG 37)

 This sample involves a consolidated hearing for two election 

petitions: 

THE UNIT SOUGHT BY THE PETITIONER IN CASE NO. ....., IS 

DESCRIBED AS FOLLOWS IN THE AMENDED PETITION: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

(describe proposed unit) 

THE UNIT SOUGHT BY THE SAME PETITIONER IN CASE NO. 

....., IS DESCRIBED AS FOLLOWS IN THE AMENDED PETITION:

 (describe proposed unit) 

MR./MS. ........, WHAT IS THE POSITION OF THE PETITIONER 

REGARDING THE APPROPRIATENESS OF THE PETITIONEDFOR UNITS? 

MR./MS. ......., WHAT IS THE POSITION OF THE ACTIVITIES 

REGARDING THE APPROPRIATENESS OF THE PETITIONEDFOR UNITS? 

ALTERNATIVE UNIT(S) (optional, see HOG script 35.8) 

AT THIS TIME, WILL THE PETITIONER STATE FOR THE 

RECORD ITS POSITION AS TO WHAT UNIT(S), IF ANY, IT 

WOULD BE WILLING TO PROCEED TO AN ELECTION IN AS AN 

ALTERNATIVE TO THE UNITS SOUGHT BY THE AMENDED 

PETITIONS? 

WHAT IS THE POSITION OF THE ACTIVITIES REGARDING ANY 

SUCH ALTERNATIVE UNIT(S)? 

b. Eligibility: (see HOG 51 through 64)

 This sample involves a request to clarify multiple bargaining 

positions. 

IN THIS CASE, THE PETITIONER SEEKS TO CLARIFY THE 

BARGAINING UNIT DESCRIBED BELOW WHICH WAS 

CERTIFIED ON ....... IN CASE NO. .......: 

(Describe the recognized or certified unit directly from the 

recognition or certification; if neither document is available, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

the Hearing Officer may rely on the unit description in the 

contract. If there are any discrepancies between the 

names of the parties to the case as opposed to the names 

of the parties on these documents, this is clarified on the 

record, either through a stipulation or testimony.) 

THROUGH THIS PETITION, THE PETITIONER, ....., PROPOSES 

THAT THE ABOVE-DESCRIBED UNIT BE CLARIFIED BY 

INCLUDING THE FOLLOWING EMPLOYEE(S): 

 TITLE GRADE SERIES

 INCUMBENT

Note: When clarifying units, a petition must specify the positions 

held by specific individuals that it seeks to clarify. For example, a 

petition may seek to clarify only certain Program Analysts, GS-9. 

The record must track the petition and reflect the names of the 

individuals who encumber the positions affected by the petition. 

The record in this example then reflect why the petitioner seeks to 

clarify the status of certain individuals and not others. When a 

petition seeks to clarify the status of an entire classification of 

employees, e.g., all Program Analysts, GS-345-9, the parties 

prepare an exhibit that identifies the names and organizational 

location of the incumbents. This is a joint exhibit absent a 

stipulation that the petition seeks to clarify the status of all 

employees who encumber the specific position at issue. 

MR./MS. ......, HAVE I CORRECTLY STATED THE PURPOSE OF 

THE ....'S PETITION TO CLARIFY THE UNIT? 

MR./MS. ....., IS THIS .....(other party)'S UNDERSTANDING OF 

THE PURPOSE OF THE .....'S CLARIFICATION OF UNIT 

PETITION? 

WILL EACH OF THE PARTIES STATE ITS POSITION WITH 

RESPECT TO THE INCLUSION OR EXCLUSION OF (EACH OF) 

THE CLASSIFICATION(S) IN ISSUE, NAMELY...........................? 

MR./MS. .............., FOR THE PETITIONER? 

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

MR./MS. .............., FOR THE (ACTIVITY) (AGENCY)? 

MR./MS. .............., FOR THE INTERVENOR? 

c. Matters relating to representation (e.g., reorganization, 

accretion, successorship, Montrose): (see HOG 37 

through 50)

IN THIS CASE, THE PETITIONER SEEKS TO CLARIFY THE 

BARGAINING UNIT DESCRIBED BELOW WHICH WAS 

CERTIFIED ON ...... IN CASE NO. .......: 

In this sample, there is only one unit being clarified as a result of a 

substantial change in the character and scope of the unit. The 

existing unit description is being read into the record. On the other 

hand, a large reorganization may affect many units. Rather than 

read all of the units into the record, the parties can prepare a joint 

exhibit setting forth descriptions of the units and the dates of 

recognition or certification with copies of appropriate recognitions 

and certifications. 

THROUGH THIS PETITION, THE PETITIONER(S) SEEKS TO 

CLARIFY THE CERTIFIED UNIT(S) BY: [Provide a clear and 

concise statement of the issues being raised by the petition and the 

results the petitioner(s) seeks.] 

MR./MS. ...., HAVE I CORRECTLY STATED THE PURPOSES OF 

THE PETITIONER'S PETITION? 

MR./MS. ...., IS THIS THE (other party)'S UNDERSTANDING OF 

THE PURPOSES OF THE PETITIONER'S PETITION? 

The Hearing Officer confirms that all parties understand the 

purpose of the petition. 

d. Unit consolidations: (see HOG 49 and CHM 23.8)

 This example is a request to consolidate two separate bargaining 

units. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

THROUGH THIS PETITION, THE PETITIONER, ....., SEEKS TO 

CONSOLIDATE (cite number of units) TWO SEPARATE 

EXISTING BARGAINING UNITS WHICH IT CURRENTLY 

REPRESENTS. ONE OF THE UNITS IS A UNIT OF 

EMPLOYEES OF .....(name of Activity/Agency), WHICH AS MOST 

RECENTLY CERTIFIED ON .... (cite date) IN CASE NO. ..... IS 

DESCRIBED AS FOLLOWS: 

(describe current unit "A" directly from the recognition or 

certification; if neither document is available, the Hearing Officer 

may rely on the unit description in the contract. If there are any 

discrepancies between the names of the parties to the case as 

opposed to the names of the parties on these documents, this 

discrepancy is clarified on the record, either through a stipulation or 

testimony.) 

THE SECOND OF THESE UNITS CURRENTLY REPRESENTED 

BY ...... (union) IS A UNIT OF EMPLOYEES OF................ (name 

of activity/agency), WHICH AS MOST RECENTLY CERTIFIED 

ON...........(date) IN CASE NO. ........., IS DESCRIBED AS 

FOLLOWS: 

(describe current unit "B" directly from the recognition or 

certification; if neither document is available, the Hearing Officer 

may rely on the unit description in the contract. If there are any 

discrepancies between the names of the parties to the case as 

opposed to the names of the parties on these documents, this 

discrepancy is clarified on the record, either through a stipulation or 

testimony.) 

THE DESCRIPTION OF THE UNIT SOUGHT BY THE 

PETITIONER TO CONSOLIDATE THE ABOVE DESCRIBED 

EXISTING BARGAINING UNITS IS AS FOLLOWS: 

(describe proposed consolidated unit - see CHM 28.13 that 

discusses conforming units to Statutory exclusions) 

If there are a number of units to be consolidated, the parties may 

prepare a joint exhibit describing each of the units sought to be 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

11

consolidated, showing the date of recognition or certification and 

attaching copies of the recognitions and certifications, if available. 

Questions when the petition is not jointly filed (tailor if petition is 

jointly filed): 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

12

MR./MS. .............., DOES THE ABOVE ACCURATELY DESCRIBE 

THE EXISTING BARGAINING UNITS WHICH ARE THE 

SUBJECTS OF THIS PETITION AND THE 

ACTIVITIES/AGENCIES' UNDERSTANDING OF THE 

CONSOLIDATED BARGAINING UNIT SOUGHT BY THE 

PETITIONER? 

MR./MS. .............., DOES THE ABOVE ACCURATELY DESCRIBE 

THE EXISTING BARGAINING UNITS WHICH ARE THE 

SUBJECTS OF THIS PETITION AND THE PETITIONER'S 

UNDERSTANDING OF THE CONSOLIDATED BARGAINING 

UNIT SOUGHT BY THE PETITION? 

e. Determinative challenged ballots: (see CHM 49)

 This sample involves determinative challenged ballots. 

THE SOLE PURPOSE OF THIS HEARING IS TO DETERMINE 

THE BARGAINING UNIT ELIGIBILITY STATUS OF (name of 

activity/agency and number of employees whose challenged ballots 

are determinative) EMPLOYEES IN ORDER TO RESOLVE THEIR 

DETERMINATIVE CHALLENGED BALLOTS. 

OF THESE DETERMINATIVE CHALLENGED BALLOTS, THOSE 

OF THE FOLLOWING EMPLOYEES WERE CHALLENGED BY 

THE (identify challenging party) BASED ON ITS CONTENTION 

THAT THESE EMPLOYEES ARE (e.g., supervisors, managers, 

etc.) WITHIN THE MEANING OF (cite applicable section of 

Statute): 

NAME POSITION DESCRIPTION TITLE

MR./MS. ..........., HAVE I ACCURATELY IDENTIFIED THE 

EMPLOYEES WHOSE BALLOTS THE ....... CHALLENGED AND 

THE REASON FOR THOSE CHALLENGES BY THE .......? 

MR./MS. ..........., DOES THIS ACCURATELY REFLECT THE ....'S 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

13

UNDERSTANDING REGARDING WHICH EMPLOYEES' 

BALLOTS THE ... CHALLENGED AND THE REASON FOR 

THOSE CHALLENGES BY THE .........? 

THE REMAINING DETERMINATIVE CHALLENGED BALLOTS, 

AS CAST BY ........(name of employees), WERE CHALLENGED 

BY THE ......' AS FOLLOWS: 

 NAME POSITION DESCRIPTION TITLE REASON 

FOR 

CHALLENGE

MR./MS. ......., HAVE I ACCURATELY IDENTIFIED THE 

EMPLOYEES WHOSE BALLOTS WERE CHALLENGED AND 

THE REASONS FOR THOSE CHALLENGES BY THE ............? 

MR./MS. ........., DOES THIS ACCURATELY REFLECT THE ....'S 

UNDERSTANDING REGARDING WHICH EMPLOYEES' 

BALLOTS THE ... CHALLENGED AND THE REASONS FOR 

THOSE CHALLENGES BY THE ........? 

THE PARTIES SHOULD BE AWARE THAT IF THE REGIONAL 

DIRECTOR, OR ULTIMATELY, AS APPLICABLE, THE FEDERAL 

LABOR RELATIONS AUTHORITY, DETERMINES THAT FOR 

PURPOSES OF THE FEDERAL SERVICE LABORMANAGEMENT RELATIONS STATUTE, ANY OF THE 

EMPLOYEES WHO CAST DETERMINATIVE CHALLENGED 

BALLOTS ARE, IN FACT, ELIGIBLE TO VOTE IN THE 

ELECTION HELD IN THIS CASE, THOSE ELIGIBLE 

EMPLOYEES' BALLOTS WILL BE OPENED AND COUNTED 

TOGETHER WITH THE OTHER ELIGIBLE EMPLOYEES WHO 

CAST BALLOTS IN THE ELECTION. A REVISED TALLY OF 

BALLOTS WILL THEN BE PREPARED, REFLECTING THEIR 

DESIRE ON THE QUESTION OF REPRESENTATION. 

MR./MS. ........., DOES MY DESCRIPTION OF THE PURPOSE OF 

THIS HEARING ACCURATELY REFLECT THE ACTIVITY'S 

UNDERSTANDING OF THE MATTERS AT ISSUE IN THIS 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

14

PROCEEDING? 

MR./MS. .........., DOES MY DESCRIPTION OF THE PURPOSE 

OF THIS HEARING ACCURATELY REFLECT THE ACTIVITY'S 

UNDERSTANDING OF THE MATTERS AT ISSUE IN THIS 

PROCEEDING? 

f. Timeliness issues: This issue is always addressed in a 

hearing involving a petition that seeks an election. Even if 

timeliness is not an issue in dispute, the following 

questions is asked to clarify the record. (see HOG 32.10 

and 48)

 

DOES ANY PARTY CONTEND THAT THERE IS A BAR TO AN 

ELECTION IN EITHER OF THE PETITIONED-FOR UNITS IN 

THESE CASES BASED ON AN AGREEMENT, PRIOR 

ELECTION, OR CERTIFICATION? 

MR./MS. ................, WHAT IS THE POSITION OF THE LABOR 

ORGANIZATION YOU REPRESENT ON THIS ISSUE? 

MR./MS. ................, WHAT IS THE POSITION OF THE 

ACTIVITIES ON THIS ISSUE? 

 If timeliness is not an issue, it may be stipulated as a nonissue: 

IT IS HEREBY STIPULATED BY ALL PARTIES THAT THERE IS 

NO BAR TO AN ELECTION IN THIS CASE BASED UPON AN 

AGREEMENT, PRIOR ELECTION OR CERTIFICATION. 

If timeliness is an issue, the Hearing Officer frames the issue in the 

form of a stipulation of an issue to be explored at the hearing (see 

HOG 32.13). The following is an example of a stipulation reached 

at a hearing where timeliness is the sole issue: 

THE SOLE ISSUE RAISED BY THE SUBJECT PETITION FOR 

PURPOSES OF THIS HEARING IS WHETHER AN ELECTION IN 

THE PROPOSED UNIT IS BARRED BY A COLLECTIVE 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

15

BARGAINING AGREEMENT. THERE ARE NO OTHER ISSUES 

WHICH WOULD PRECLUDE AN ELECTION BEING HELD IN 

THIS CASE. 

7. Alternative unit(s): If appropriate to the issues, the Hearing 

Officer asks the petitioner if there are any alternative units for which 

the petitioner would be willing to seek representation through an 

election (see HOG 32.11). As noted above, the Hearing Officer 

may ask the parties for their positions on alternative units early in 

the proceeding; other Hearing Officers may ask this question at the 

end of the hearing; or at both the beginning and the end of the 

hearing. The point is to make sure the record contains sufficient 

evidence for the Regional Director to make a decision on the 

appropriateness of the alternative unit.

8. Receiving stipulations: (see HOG 10.2.4, 26, and 32.12)

 The following is an example of a stipulation for a non-issue: 

IN AN OFF-THE-RECORD DISCUSSION, THE PARTIES 

AGREED TO THE FOLLOWING STIPULATION: 

THE PARTIES HEREBY STIPULATE THAT NO INDIVIDUAL UNIT 

ELIGIBILITY MATTERS ARE AT ISSUE FOR PURPOSES OF 

THIS HEARING AND THAT NO INDIVIDUAL ELIGIBILITY 

DISPUTES STAND IN THE WAY OF PROCEEDING TO AN 

ELECTION SHOULD THE PETITIONED FOR UNITS SOUGHT BY 

THE PETITIONER IN THESE CASES, AS DESCRIBED ABOVE, 

BE FOUND APPROPRIATE FOR EXCLUSIVE RECOGNITION BY 

THE FEDERAL LABOR RELATIONS AUTHORITY. 

 IS IT SO STIPULATED? 

 

 Have the parties state their agreement with the stipulation. 

 THE STIPULATION IS RECEIVED. 

The following is an example of a factual stipulation for a 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

16

supervisory position:

ON THE BASIS OF AN OFF-THE-RECORD DISCUSSION, 

THE FOLLOWING STIPULATION IS PROPOSED: 

IT IS HEREBY STIPULATED BY THE PARTIES THAT ..... (name 

of person) IS A SUPERVISOR WITHIN THE MEANING OF 

SECTION 7103(a)(10) OF THE STATUTE BASED ON HIS/HER 

AUTHORITY TO HIRE EMPLOYEES. ON THREE OCCASIONS 

HE HAS BEEN THE SELECTING OFFICIAL FOR MERIT 

PROMOTION ACTIONS INCLUDING...... (identify the positions 

and/or promotion announcements as well as the names of those 

hired). 

IS IT SO STIPULATED BY THE ACTIVITY? 

BY THE PETITIONER? 

BY THE INTERVENOR? 

 THE STIPULATION IS RECEIVED INTO THE RECORD.

Note that this stipulation includes a description of the legal 

conclusion agreed upon by the parties and a justification for that 

conclusion. 

The following is a sample stipulation where the parties agree that 

the testimony of one employee holding a particular position at a 

particular grade will be representative of all employees holding that 

position at that grade: 

THE PARTIES STIPULATE THAT THE DUTIES PERFORMED BY 

(identify individual) ARE REPRESENTATIVE OF ALL ACTIVITY 

EMPLOYEES AT ISSUE IN THIS PETITION WHO HOLD THE 

POSITION OF (identify position title, series and grade). THE 

PARTIES FURTHER STIPULATE THAT THE DECISION 

REACHED BY THE REGIONAL DIRECTOR/AUTHORITY 

REGARDING THE BARGAINING UNIT ELIGIBILITY OF (identify 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

17

same individual named in first sentence) WILL BE APPLIED TO 

DETERMINE THE BARGAINING UNIT ELIGIBILITY OF (identify 

all other employees at issue in the petition who hold the same 

position at the same grade). THESE EMPLOYEES ALSO HOLD 

THE POSITION OF (identify same position title, series, and grade 

name in the first sentence). 

9. Outlining issues to be explored at the hearing: Outline the 

issues to be addressed at the hearing. These include issues 

identified by the Regional Director as crucial to resolution of the 

petition, even if the parties do not agree that they are relevant (see 

HOG 2, 3.7, 32.13, and 33.9).

I WILL NOW OUTLINE THE ISSUES TO BE ADDRESSED AT 

THIS HEARING. 

The Hearing Officer outlines the issues. 

If the Regional Director authorizes the Hearing Officer to make 

recommendations on the record, the Hearing Officer states: 

THE REGIONAL DIRECTOR HAS GIVEN ME DISCRETION TO 

MAKE RECOMMENDATIONS ON THE RECORD ON THE 

FOLLOWING ISSUES. 

If the Hearing Officer is not authorized to make recommendations 

on the record, the Hearing Officer states: 

I WILL NOT BE MAKING RECOMMENDATIONS ON THE 

RECORD IN THIS PROCEEDING. 

10. Summarizing the parties' positions: (see HOG 32.14). If not 

already placed into the record by this point, each party makes an 

opening statement summarizing its position on each issue raised 

by the petition as well as any other issue outlined by the Hearing 

Officer (see HOG 32.13). Note that in eligibility issues, the parties 

are required to state their position on each disputed position.
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

18

MR./MS. ......., WHAT IS THE POSITION OF THE PETITIONER 

REGARDING THE.... ...... (state issue)? 

MR./MS. ....., WHAT IS THE POSITION OF THE ACTIVITIES 

REGARDING THE .... .......(state issue)? 

2.1 Presentation of evidence: (see HOG 32.15)

WE ARE NOW READY FOR DISCUSSION AND EXAMINATION 

OF THE ISSUE(S) IN THIS CASE. 

 MR./MS. ........, YOU MAY PROCEED WITH YOUR FIRST 

WITNESS. 

Usually the Activity/agency goes first. When the witness reaches 

the stand, the Hearing Officer administers the oath: 

DO YOU SWEAR THAT THE TESTIMONY YOU ARE ABOUT TO 

GIVE WILL BE TRUE AND CORRECT TO THE BEST OF YOUR 

KNOWLEDGE OR BELIEF? 

The Hearing Officer then asks the witness to state his/her name, 

position and business address (optional), and place of employment 

for the record. Once this information is provided, the Hearing 

Officer advises the Representative to proceed with the 

examination. 

See HOG 12 through 14, "Evidence," which address leading 

questions, relevancy, etc., HOG 15 specifically concerns 

"Exhibits." 

3.1 Recommendations on the record: (see HOG 32.17). If the 

Hearing Officer is permitted to make recommendations on the 

record, the following is a guideline for ensuring the record reflects 

the issue, the recommendation and the basis for the 

recommendation. The Hearing Officer states:

I WILL NOW MAKE MY RECOMMENDATIONS WITH RESPECT 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

19

TO THE FOLLOWING ISSUES: (list issues). 

WITH RESPECT TO THE ISSUE OF .... , I WILL SUMMARIZE 

THE RELEVANT EVIDENCE: 

When summarizing the evidence, the Hearing Officer references 

testimony and documentation so that the reader of the record may 

refer directly to the evidence used to support the recommendation. 

DO ANY OF THE PARTIES HAVE ANY FURTHER 

INFORMATION? 

The Hearing Officer allows the parties to reference evidence that 

the Hearing Officer did not summarize, but is already in the record 

and the party(ies) consider relevant. The Hearing Officer may not 

permit the parties to place on the record new evidence without 

calling witnesses and/or introducing documentation. If the parties 

argue that the evidence cited by the Hearing Officer is incorrect, 

then the Hearing Officer notes the disagreement for the record, but 

does not engage in a discussion or argument of the merits. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

20

I WILL NOW GO OFF THE RECORD TO PREPARE MY 

RECOMMENDATION(S). I ANTICIPATE THAT I WILL REQUIRE 

APPROXIMATELY (minutes, hours or one day) depending on the 

issues)..... . WE WILL RESUME AT (state time). 

After hearing additional evidence, the Hearing Officer makes 

his/her recommendation. 

I RECOMMEND THAT THE REGIONAL DIRECTOR FIND .... 

It is not sufficient to state simply that: “I am prepared to recommend 

that Ms. Smith is not a confidential employee... .” Any 

recommendation is supported by a factual summary, an analysis of 

the factors considered in making the recommendation and 

references to applicable case law, as appropriate. 

A PARTY IS NOT PERMITTED TO RESPOND TO THE 

RECOMMENDATION ON THE RECORD EXCEPT DURING THE 

CLOSING ARGUMENT OR, AFTER THE CLOSE OF THE 

HEARING, IN HIS/HER BRIEF. 

4.1 Change of party position: Once the presentation of evidence has 

been completed, the Hearing Officer asks the parties whether, in 

light of the evidence received, they wish to make any changes to 

their respective positions on the issues. In addition, if applicable, 

the Hearing Officer also asks whether the parties would now agree 

to proceed to an election in the proposed unit or in an alternative 

unit (see HOG 32.18). 

IN LIGHT OF THE EVIDENCE PRESENTED, DO ANY OF THE PARTIES 

WISH TO CHANGE THEIR POSITION ON ANY ISSUE? 

IN LIGHT OF THE EVIDENCE PRESENTED, ARE THE PARTIES 

WILLING TO PROCEED TO AN ELECTION IN THE PROPOSED UNIT 

OR IN AN ALTERNATIVE UNIT? 

5.1 Additional matters: 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

21

IS THERE ANYTHING FURTHER THAT EITHER OF THE PARTIES 

WISH TO PRESENT? 

6.1 Closing remarks: (see HOG 32.19 and 32.20)

DOES EITHER OF THE PARTIES WISH TO ARGUE ORALLY AT THIS 

TIME? 

AT THIS TIME, SINCE NEITHER OF THE PARTIES DESIRES TO 

PRESENT FURTHER EVIDENCE IN THE ABOVE-REFERENCED CASE, 

I WILL MAKE THE FOLLOWING REMARKS. A PARTY DESIRING TO 

FILE A BRIEF IN THIS MATTER WITH THE REGIONAL DIRECTOR, ....... 

(provide address of the appropriate regional office) MUST FILE THE 

ORIGINAL AND TWO (2) COPIES WITHIN THIRTY (30) DAYS FROM 

THE CLOSE OF THIS HEARING. THE DATE OF FILING SHALL BE 

DETERMINED BY THE DATE OF MAILING INDICATED BY THE 

POSTMARK DATE. IF NO POSTMARK DATE IS EVIDENT ON THE 

MAILING, IT SHALL BE PRESUMED TO HAVE BEEN MAILED FIVE (5) 

DAYS PRIOR TO RECEIPT. IF THE FILING IS BY PERSONAL 

DELIVERY, IT SHALL BE CONSIDERED FILED ON THE DATE IT IS 

RECEIVED BY THE REGIONAL DIRECTOR. COPIES OF THE BRIEF 

SHALL BE SERVED ON ALL PARTIES TO THE PROCEEDING. 

REQUESTS FOR ADDITIONAL TIME IN WHICH TO FILE A BRIEF 

SHALL BE MADE TO THE REGIONAL DIRECTOR, IN WRITING, AND 

COPIES SHALL BE SERVED UPON THE OTHER PARTIES, AND A 

STATEMENT OF SUCH SERVICE SHALL BE FILED WITH THE 

REGIONAL DIRECTOR. REQUESTS FOR AN EXTENSION OF TIME 

SHALL BE IN WRITING AND RECEIVED NO LATER THAN FIVE (5) 

DAYS BEFORE THE DATE SUCH BRIEFS ARE DUE. NO REPLY MAY 

BE FILED IN ANY PROCEEDING EXCEPT BY SPECIAL PERMISSION 

OF THE REGIONAL DIRECTOR. 

DOES EITHER OF THE PARTIES INTEND TO FILE A BRIEF WITH THE 

REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, 

....REGION? IF SO, BRIEFS ARE DUE TO THE REGIONAL DIRECTOR 

BY CLOSE OF BUSINESS, , . IS THERE ANYTHING 

FURTHER TO COME BEFORE THE HEARING OFFICER AT THIS 

TIME? LET THE RECORD SHOW NO RESPONSE. 

THE HEARING IS NOW CLOSED. 

Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

Figure 37.1 

REPRESENTATION OUTLINE I

(TO ASSIST PARTIES IN PREPARING FOR HEARING) 

1. BASIC REQUIREMENTS

A. Evidence

1. Standards. Assertions by the parties are not evidence. 

Evidence is established through the testimony of 

witnesses, stipulations and exhibits admitted into the 

record. 

2. Necessity. At the prehearing conference and during the 

hearing, the Hearing Officer will determine the necessity 

of the testimony of proposed witnesses and proposed 

exhibits and will identify additional witnesses whose 

testimony is required and additional exhibits necessary 

to a complete record. 

B. Witnesses

1. Standards. The parties present witnesses who can 

testify to and answer questions concerning all facts and 

issues raised by the petition(s). 

2. Necessity. All participants deemed necessary by the 

Hearing Officer will receive official time under section 

7131 of the Statute. Any disputes over necessity of 

participants will be decided by the Hearing Officer. 

3. Knowledge. Witnesses testify to and answer questions 

about their personal knowledge of the facts. Secondhand, third-hand or lesser knowledge reduces the 

relevance of the testimony. 

4. Reference to record. All testimony during the hearing 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

refers to specific exhibits which have been introduced 

into the record. 

 5. Stipulations. All stipulations are based on fact and 

include information and exhibits, as necessary, 

establishing the facts of the matter and/or referencing 

exhibits already received in the record which support the 

factual basis of the stipulation. 

C. Testimony

1. Standards. Witnesses testify to and answer questions 

about their personal knowledge of the facts and 

documents relevant to the issues of the case. When 

testifying about documents, the witnesses are generally 

those who authored or initiated the documents. 

 

2. Availability. If witnesses with personal knowledge are 

not readily available, the parties identify those with direct 

knowledge and also name additional witnesses whose 

personal knowledge most nearly approximates the direct 

testimony described above. 

 3. Identification. The parties name all of their respective 

witnesses and the subjects about which each witness 

will testify prior to the prehearing conference. This 

allows the Hearing Officer to determine the necessity of 

the proposed testimony of these witnesses. 

D. Documents

 1. Standards. Documents may be accepted into the 

hearing record by joint submission, by stipulation of the 

parties, or by one of the parties. 

 

2. Identification and authentication. Any exhibit 

introduced by a party is identified by and testified to by a 

witness or witnesses who has\have first-hand knowledge 

of the authenticity of the exhibit, the content of the 

exhibit, and factual matters concerning the exhibit. 

3. Regulations. If a party proposes to introduce excerpts 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

from agency regulations, the excerpts are authenticated 

as true and correct copies. In addition, if only a portion 

from a regulation is submitted, a copy of the whole 

regulation is available for review by the parties. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

4. Joint exhibits. If the parties jointly introduce exhibits, 

all such exhibits may be referred to by witnesses and/or 

in briefs. 

5. Objections. Any party objecting to the introduction of 

evidence should state the basis for the objection on the 

record. The Hearing Officer then allows the party 

proposing introduction of the evidence an opportunity to 

state a position. The Hearing Officer then rules on 

admissibility. Exceptions to overruled objections are 

automatically a part of the record. Thus, there is no 

need for the parties to state such exceptions. 

6. Stipulations. Stipulations concerning the introduction of 

exhibits includes information demonstrating the factual 

basis of the stipulation and the relevance of the 

document. 

2. MISSION AND FUNCTION STATEMENTS

A. Mission. Agency statement of its basic mission. Activities' 

statements of basic mission(s). 

 

B. Function. Description of how each Activity functions (as 

needed). 

1. Differences. If a proposed unit involves 

employees of a particular Activity but a party asserts that 

the unit is broader or narrower, basic mission statements 

of all entities is entered into the record and testified to. 

2. Mission and function. Testimony is required from 

witness(es) knowledgeable about the mission and 

function of each Agency and Activity and the 

interrelationships between them. 

3. Exhibits. Obtain for the record copies of the mission 

and function statements from all affected Agencies, 

Activities/organizational components. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

3. ORGANIZATION

A. Charts. Organizational charts of Agency and Activity(ies), 

updated as necessary. 

B. Identification. Testimony concerning which Activity(ies) employ 

the employees involved in the petition and where in the 

organization the employees are located is crucial. 

C. Commonality. Testimony is required concerning shared mission 

and functions of organizations in which employees involved in the 

position are employed. Testimony specifically identifies where in 

those organizations the employees are located. 

D. Geographic - Physical Location.

1. Organization. What are the geographic locations in 

relation to the organization of the Activities? Do 

Activities have field organizations? Where? 

2. Function. Testimony matches the mission and function 

statements to the organizational charts, thereby showing 

each Activity's function and relationship to others. What 

is the organizational framework, beginning with the 

major organizational components and working down the 

chart? What does each component do? Similarities? 

Differences? Interrelationships? 

3. Location. Where are each of the employees involved in 

the petition physically located? How far are the separate 

locations from each other? Describe any interchange of 

work and employees between locations. 

 

4. Numbers. Obtain information concerning the numbers 

and types of employees at each agency / activity / 

organizational component. This can be established by 

having the Agency prepare an employee listing reflecting 

each employee‟s organizational placement, job title, 

series and grade, and unit eligibility. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

4. DELEGATIONS OF AUTHORITY

What authority has been delegated for bargaining, management, 

supervision, policy, procedure, regulation, administration, and personnel 

functions? At what level do these delegations exist? What is the effect of 

these delegations? 

5. BARGAINING HISTORY

A. Incumbents. Obtain the complete name of each exclusive 

representative and description of each unit at each Activity. 

B. Units. Obtain copies of certifications/recognitions for each unit.

C. Contracts. Obtain copies of the most recent collective 

bargaining agreements for each unit. What is the status of each 

such agreement, including the status of any negotiations? 

D. Dealings. What is the history of former or existing recognitions, 

including information as to elections, certifications and contracts. 

Obtain copies of all certifications, letters of recognition and 

contracts, for the proposed unit(s) and any other existing units of 

the agency. When were elections held, what groups of 

employees were involved and how many employees were 

affected? Did contracts automatically renew? At what level were 

negotiations held, both term negotiations and impact 

negotiations? 

6. SUPERVISORY HIERARCHY

A. Structure. What is the supervisory structure at the Agency and 

at each Activity (as relevant) and the lines of supervisory 

authority within each Activity (and/or between Activities), using 

the organizational chart(s)? 

B. Nature. What is the extent and nature of supervisory duties and 

responsibilities within or between Activities? Who reports to 

whom? Who is responsible for specific supervisory functions 

within or between Activities? 

C. Control. Is supervision centrally or locally controlled within the 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

organizational structure? Are there differences in the supervisory 

controls between the Activities involved? Are supervisors 

responsible for common supervision over more than one work 

group? 

7. JOB FUNCTIONS AND SKILLS

A. Positions. Obtain copies of the position descriptions for the 

categories of employees involved in the petition. 

B. Employees. The Activity is required to compile listing(s) of all 

employees involved in the petition which show each employee's 

name, position title, classification, grade and location within the 

organization. Include a numerical table showing total numbers of 

employees by eligibility in each proposed unit. 

C. Work. Evidence includes the types of work performed by 

employees involved in the petition, including descriptions of job 

duties and actual work performed, the flow of work within and 

between Activities, and the qualifications and training necessary 

to perform the work. 

D. Equipment. Is special equipment needed to perform certain 

work? Where is this equipment located? Is training needed to 

operate the equipment? What is the availability of such training? 

Are opportunities for advancement and/or movement between 

positions affected by the availability of this equipment or training? 

 

E. Differences. How do work flow, job duties and/or necessary 

qualifications, equipment and training differ within and between 

Activities? 

8. INTEGRATION OF OPERATION AND INTERCHANGE OF EMPLOYEES

A. Movement. Testimony and documents showing personnel 

movement, policy and decision making flow, using organizational 

charts. 

B. Commingling. Whether and how employees and functions are 

commingled among different organizations within and between 

Activities. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8

C. Commonality. Whether and in what ways components of the 

Activities have employees, supervisors and/or managers in 

common, identifying the individuals involved using the 

organizational charts, employee listings, position descriptions, 

etc. 

D. Work flow. What is the flow of work processes, duties and 

responsibilities in relation to the mission(s)? Is there 

interrelationship or interdependence between components in work 

flow, processes or responsibilities? 

 E. Integration. In what ways are employees and their job functions 

integrated within and between Activities? Are there frequent 

transfers of work and/or personnel? How is this accomplished? 

How is the work coordinated within and between Activities? Are 

employees required to apply for openings to cross organizational 

lines? 

F. Operations. Is there employee contact between components in 

performing or transferring work? What is the relative isolation of 

components? Obtain a description of mobility and interchange of 

employees between components. What is the extent of 

telephone contact or inter-component visits? What for? By 

whom? How often? Where to and from? How many people 

involved? Clearance necessary from another component to 

perform certain work? 

G. Interchange. Who substitutes for employees' absences for 

vacation or illness? Over the prior year or so, what is the extent, 

purpose and duration of TDY assignments? What 

category/classification of employee(s) have gone on this travel 

and for what purpose? Within the past three years, how many 

permanent or temporary transfers were made laterally or by 

promotion? What category/classification of employee(s) were 

transferred and for what reason? Have the numbers of transfers 

increased or decreased ? If so, why? 

9. PERSONNEL POLICIES AND PRACTICES 

A. Pay systems. Description of the pay systems applicable to all of 

the employees involved (GS, WG, Excepted Service, NAF, etc.), 

including descriptions of the differences between pay systems. 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

B. Payroll office. Location of servicing payroll office? Placement 

within the organizational structure? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

C. Administrative Services

 1. Personnel services. Location of servicing personnel 

office? How is the personnel office staffed? Placement 

within the organizational structure? Who handles 

personnel management? Where does personnel 

management fit within the organizational structure? If 

there is more than one personnel office, are there 

differences in authority between personnel offices? 

 2. Personnel actions. Are personnel actions done 

centrally or locally? Who decides on hiring, firing, 

promotion, transfer, layoff, and recall of employees? 

How are these actions accomplished and these actions 

processed? Where do the entities performing these 

functions fit within the organizational structure? 

 3. Employment and classification authority. Who has 

classification authority for the employees involved in the 

petition? Who decides to establish positions, to fill 

vacancies, and what skills or training are needed for a 

position? How are vacancies filled? What are the 

differences within or between Activities? 

 4. Retention, promotion and RIF. What are the areas of 

consideration? How were these established? How have 

they been applied recently? What are the differences 

within and between Activities? 

 5. Disciplinary and adverse action. Who has authority to 

propose and decide such action? What are the 

differences within or between Activities? 

 6. Personnel policies and regulations. Are personnel 

regulations promulgated centrally or locally? What are 

the differences within and between Activities? To what 

extent do local officials have any discretion with respect 

to implementing policies and regulations initiated 

centrally? 

D. Personnel changes. How are personnel moved between non-
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

11

supervisory positions? From non-supervisory to supervisory 

positions? What are the differences in the ways changes are 

accomplished within and between Activities? 

 

E. Employee services. At what level are programs administered for 

equal employment, employee assistance, upward mobility, 

disability and workers compensation benefits, individual 

development, retirement, and health and life insurance? What 

are the differences in these programs within and between 

Activities? 

F. Conditions of Employment

 1. Hours. What are the hours of work of employees 

affected by the petition? Alternative Work Schedules, 

including whether employees work flexible schedules 

and/or compressed work weeks? Compensatory time? 

Starting and quitting times? Core hours? Restrictions on 

days off? Lunch hours? Break times? How were these 

established? What are the differences within and 

between Activities or organizations within each Activity? 

 2. Training. What training is required and/or available for 

the employees involved in the petition? What are the 

differences in training within and between Activities? 

 3. Personnel. At what level is the authority for personnel 

policy, service, and/or action? At what level are 

employee service programs provided? What are the 

differences in programs, services, and levels of authority 

within and between Activities? 

 4. Associations. At what level do associations exist such 

as Credit Unions, athletic, health or wellness groups, 

blood drives, literacy projects, and/or public school 

sponsorship? What are the differences within and 

between Activities? 

 5. Impact. All parties state specific positions concerning 

impact of the possible unit findings. What impact on the 

Agency/Activity is there from the various possible unit 

findings? What is the impact on employees? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

12

6. Factors. What are the areas of consideration for hiring, 

promotion and RIF? Who issues vacancy 

announcements? Who has the authority to hire, fire, lay 

off, transfer or promote? Who determines the 

compensation and salary structure for vacancies? 

Where are the OPF's maintained? Who rates 

performance and writes appraisals? Who reviews and 

approves the appraisals? Who has the authority to 

initiate disciplinary or adverse action? Who has the 

authority to issue travel orders, direct training of 

employees, grant incentive and achievement awards? 

Who assigns parking, determines break and leave 

schedules, approves leave, overtime and compensatory 

time? Who initiates personnel actions, personnel 

management programs, standards for performance 

evaluation and/or standards of personal conduct? Who 

determines the budget or is responsible for meeting a 

budget? Who has authority to negotiate and execute a 

collective bargaining agreement? 

 

10. EFFECTIVE DEALINGS

Efficient use of resources derived from inclusion in existing units and 

negotiation in one unit rather than many units in segments of the activities. 

 

A. History. What is the history of collective bargaining dealings 

under the existing unit structure(s)? How have labor relations 

policy and labor relations authority been implemented and 

exercised respectively? 

B. Grievances. What are the formal, informal, negotiated and 

activity grievance procedures for employees involved in the 

petition? What is the past history of grievance processing? 

C. Units. In what way would the proposed units involved in the 

petition affect existing bargaining and grievance procedures? 

The parties are required to state their positions as to how the 

proposed units would promote effective dealings. 

D. Authority. What is the locus and scope of responsible personnel 

office(s)? Who handles the various personnel functions at 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

13

present? How would the existence of the proposed units affect 

this authority? Are the employees involved special or unique 

because of job duties or work location in a manner which could 

affect the appropriateness of unit. 

E. Limitations. What is the extent of and who has authority to 

negotiate? What limitations are there on the authority of the 

petitioned-for Activity to negotiate? Are there any matters which 

could be negotiated if the unit were different from that proposed in 

the petition? Are there matters which could be negotiated only if 

the unit structure were different from that proposed? Why is this 

so? 

F. Expertise. What is the likelihood that personnel with greater 

labor relations experience will be available in the existing unit, the 

proposed unit or other possibly appropriate units? Who currently 

handles labor-management relations? Where in the 

organizational structure does this exist? At what level is labor 

relations consultation and support provided? 

G. Policy. At what level is labor relations policy set? How does the 

existence of multiple negotiated agreements, bargaining 

obligations, and grievance procedures affect labor relations 

dealings? Are employees performing essentially the same 

functions currently covered by different systems? 

H. Training. How and by whom are supervisors and managers 

trained in labor relations? Who decides on training requirements 

and those needing training? Where are the trainers located? 

11. EFFICIENCY OF AGENCY OPERATIONS

Benefits to be derived from a unit structure bearing a rational relationship 

to the operational and organizational structure of the Activity. 

 

A. Organization. What, specifically, are the structure, chain of 

command, line of authority, and uniformity of personnel policy and 

practice considerations supporting the effectiveness of the 

various proposed units? 

B. Structure. What are the organizational structure, supervisory 

hierarchy, chain of command, authority over work functions, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

14

personnel and labor relations policies and dealings? Who reports 

to whom? What is the organizational structure of the personnel 

staff? 

C. Authority. Do personnel with operational authority also have 

labor relations authority? What are the differences within and 

between Activities? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

15

D. Benefits. Why would any proposed unit be more beneficial than 

another proposed unit? How do the personnel policies and job 

benefits of employees differ within and between Activities?

E. Resources. How is the effective use of negotiation resources 

derived from the existing unit structure? How would the proposed 

units affect the use of these resources? What effect would the 

various proposed units have on cost of the labor-management 

program, hours spent administering the program, staffing 

requirements, etc. 

F. Impact. 

1. Views. What are the parties' views of the impact of the 

proposed and/or other potentially appropriate units on 

efficiency of operations or the effectiveness of dealings? 

2. Agency operations. What is the impact of the 

proposed unit structure on agency operations in terms of 

cost, productivity and use of resources? 

 a. Cost. What savings or costs 

(in terms of labor relations personnel, 

productivity, etc.) result from the existing 

unit(s), proposed unit(s) or other possibly 

appropriate units? What effect would the 

proposed unit(s) have on the cost of the labormanagement relations program, hours spent 

administering the program, staffing 

requirements, etc.? 

 b. Productivity. What impact 

on productivity would result from the existing 

unit(s), proposed unit(s), other possibly 

appropriate unit(s), or the existence of one or 

several units. Productivity includes work 

performed by employees as it affects them if 

one unit were found appropriate versus several 

and work performed by the managerial, 

supervisory and labor-management staff. 

G. Fragmentation. Would the proposed unit result in 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

16

fragmentation? If so, how, and how would this affect agency 

operations? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

Figure 37.2 

REPRESENTATION OUTLINE II

(IDENTIFYING AREAS TO STRESS) 

 (note this particular outline is, in some respects, an example of 

 an outline for a case involving a reorganization) 

1. MISSION

Formal mission statements from former and new Activities. Testimony 

includes changes in mission and function as well as effect on 

organizational structure. 

 What effect do mission changes have on unit function(s)? 

2. ORGANIZATION

A. Charts

 

 Before and after charts 

 Overall structure 

 Complete branch-by-branch structure, including 

information as to what functions performed before and after 

Description of work flow and flow of authority before and after 

reorganization 

B. Numbers

 Number of unit employees in old and new organizations. 

How many employees were directly affected by the 

reorganization? 

 Types of personnel actions used to staff new 

organization; what placements were used? Transfers? 

Requirement to apply for positions in new organization? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

C. Geography

 What was the physical layout before and after? Where 

were the employees located before and after the reorganization? 

3. BARGAINING HISTORY

Copies of collective bargaining agreements. What are the effective and 

termination dates? What is the status of each contract? What is the status 

of negotiations, if any? 

 Copies of certification/recognition for each unit involved in the petition 

 History of negotiations at former and present Activities 

4. SUPERVISORY HIERARCHY

Employee break down before and after, including lists of employees by 

name, position title, classification, grade and organizational placement. 

Supervisory structure, including numerical ratios to employees before and 

after the reorganization. Numbers and classifications of employees 

reporting to each supervisor. 

Is supervision controlled locally or centrally? What is the nature and extent 

of supervision in terms of the organizational structure before and after? 

What chains of command and lines of authority existed before and after 

the reorganization? 

5. JOB FUNCTIONS AND SKILLS

Before and after lists of employees by name, position title, classification, 

grade and organizational placement. Testimony concerning ratios of GS, 

WG, Excepted Service, NAF, etc., employees. 

Description of before and after job duties. Are there new functions, duties 

and employees? 

Following the reorganization, are employees performing the same work 

under the same conditions of employment? If no, what are the specific 

changes? 

 What was the actual impact of the reorganization on the affected 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

employees? 

6. INTEGRATION AND INTERCHANGE

What facilities and equipment existed before and after the reorganization? 

Detail any changes to the agency functions and employee 

interdependence of work functions following the reorganization. 

Detail the effect, if any, of the reorganization on interchange between 

organizational entities, work locations of employees and intra-employee 

dealings/work relationships. 

Prior to the reorganization, did units have any employees, supervisors or 

managers in common? If so, did this change as a result of reorganization? 

What were the changes and how did they affect the employees' day-to-day 

dealings within and between the Activities? 

7. TRANSFERS

 How were employees notified of the reorganization? 

Were special placement programs used in the reorganization? If so, what 

were they and how did they affect employment in the current organization? 

Before and after lists of employees by name, position title, classification, 

grade, organizational placement and type of appointment? 

8. PERSONNEL POLICIES AND PRACTICES

List of employees by name, position title, classification, grade and 

organizational placement, before and after. 

Pay. What were the compensation plans (GS, WG, etc.) of employees 

before and after the reorganization? What was the basis for these 

systems? Where is the payroll office located and did it change in 

reorganization? 

Personnel. Is hiring, firing, promotion, transfer, layoff, or recall controlled 

centrally or locally? Has this changed in reorganization? 

Employment and Classification Authority. What were they before and 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

after? 

Promotion and RIF. Where did authority lie before and after 

reorganization? What were the areas of consideration before? What are 

they now? 

Bargaining. History of bargaining and the level of bargaining before and 

after the reorganization. 

Personnel Services. Physical location of the servicing personnel office 

before and after the reorganization. Obtain evidence on the services that 

were/are provided and whether the personnel authority was/is local or 

central. 

9. CONDITIONS OF EMPLOYMENT

 Flow of work 

 Old and new manpower utilization 

 Desires of employees 

 Proposed Unit vs. Prior Unit 

10. EFFECTIVE DEALINGS

Efficient use of resources derived from inclusion in existing units and 

negotiation in one unit rather than many units in segments of the Activities. 

 

History. What is the past history of collective bargaining dealings under 

the existing unit structure(s)? How have labor relations policy and labor 

relations authority been exercised? 

Grievances. What are the formal, informal, negotiated and activity 

grievance procedures for employees involved in the petition? What is the 

past history of grievance processing? 

Units. In what way would the proposed units affect existing bargaining 

and grievance procedures? The parties state their positions as to how the 

proposed units would promote effective dealings. 

Authority. What is the locus and scope of responsible personnel 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

office(s)? Who handles the various personnel functions at present? How 

would the existence of the proposed units affect this? Are the employees 

involved special or unique because of job duties or work location. 

Limitations. What is the extent of the authority to negotiate? Who has 

authority to negotiate? What limitations are there on the authority of the 

petitioned-for Activity to negotiate? Are there any matters which could be 

negotiated if the unit were different from that proposed in the petition? Are 

there matters which could be negotiated only if the unit structure were 

different from that proposed? Why is this so? 

Expertise. What is the likelihood that personnel with greater labor 

relations experience will be available in the existing unit, the proposed unit 

or other possibly appropriate units? Who currently handles labormanagement relations? Where in the organizational structure does this 

exist? At what level is labor relations consultation and support provided? 

Policy. At what level is labor relations policy set? How does the existence 

of multiple negotiated agreements, bargaining obligations, and grievance 

procedures affect labor relations dealings? Are employees performing 

essentially the same functions currently covered by different systems? 

Training. How and by whom are supervisors and managers trained in 

labor relations? Who decides on training requirements and those needing 

training? Where are the trainers located, physically and organizationally? 

Impact. What is the impact of the proposed unit structure on agency 

operations in terms of cost, productivity and use of resources? 

Cost. What savings or costs (in terms of labor relations personnel, 

productivity, etc.) result from the existing unit(s), proposed unit(s) or other 

possibly appropriate units? 

Productivity. What impact on productivity would result from the existing 

unit(s), proposed unit(s), other possibly appropriate unit(s), or the 

existence of one or several units? 

 

11. EFFICIENCY OF AGENCY OPERATIONS

Benefits to be derived from a unit structure bearing a rational relationship 

to the operational and organizational structure of the Activity. 

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

Organization. What, specifically, are the structure, chain of command, 

line of authority, and uniformity of personnel policy and practice 

considerations supporting the effectiveness of the various proposed units? 

Structure. What is the organizational structure, supervisory hierarchy, 

chain of command, authority over work functions, personnel and labor 

relations policies and dealings? Who reports to whom? What is the 

organizational structure of the personnel staff? 

Authority. Do personnel with operational authority also have labor 

relations authority? What are the differences within and between 

Activities? 

Benefits. Why would any proposed unit be more beneficial than another 

proposed unit? How do personnel policies and job benefits of employees 

differ within and between Activities? 

Resources. How is the effective use of negotiation resources derived 

from the existing unit structure? How would the proposed units affect the 

use of these resources? What effect would the various proposed units 

have on cost of the labor-management program, hours spent administering 

the program, staffing requirements, etc.? 

Impact. What are the parties' views of the impact of the proposed or 

various other possibly appropriate units on efficiency of operations or the 

effectiveness of dealings? Would the proposed unit result in 

fragmentation? If so, how? 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

Figure 37.3 

REPRESENTATION OUTLINE III

 (SKELETON for use in developing a more detailed outline tailored to a specific 

case) 

1. Mission Statement of the Activity 

2. Organization 

a. Organization charts and function statements of each subdivision, 

including the flow from one organization to another 

b. Number of employees in the existing unit, as well as number of 

employees in petitioned-for unit 

c. Physical layout of organization and entities involved 

d. Physical location of employees involved 

3. Bargaining History 

a. Collective bargaining history of all units at installation, especially 

the involved unit. 

b. Bargaining history within the existing unit involved, including: 

 (i) copy of certification 

 

 (ii) copy of collective bargaining agreement or any 

memorandum of understanding currently in effect 

 

 (iii) termination date of contract 

 

 (iv) testimony regarding contractual provisions covering 

petitioned-for employees only 

c. Representation Practice 

4. Supervisory Hierarchy 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

a. Organizational outline of employees‟ reporting structure before 

and after reorganization, including listings of employees involved. 

b. Supervisory ratios 

c. Extent of supervision, line of responsibility (central or local) 

5. Job Functions and Skills 

a. What are the WG, GS ratios and breakdowns within the existing 

unit as opposed to the petitioned-for unit? 

b. What work functions are performed by each component group; 

what is the interrelationship of job functions? 

c. Terms and conditions of employment 

 (i) duties 

 (ii) location of positions in question 

 (iii) classification of jobs 

d. Actual impact of changes on operations and functions and on 

labor relations dealings 

6. Integration of Operation and Interchange of Employees 

a. Facilities used before and after internal realignment of functions 

b. Would proposed unit(s) affect personnel practices and policies? 

How? Other agency functions? 

c. Do petitioned-for employees actually spend working together with 

established unit employees? 

7. Transfer of employees from one organization to another 

a. How often have employees moved from one grouping to another? 

 

8. Placement Programs: Merit Promotion 

 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

9. Personnel Policies and Practices 

a. List of personnel breakdown before and after 

b. Compensation plan and salary plan before and after 

 

c. Payroll office 

 

d. Plans under which hiring, discharge, promotion, transfer, RIF 

(central v. local) 

e. Re-employment and reclassification authorities 

f. RIF, adverse action, discharge, seniority rosters, etc. (separate 

from or integrated with existing unit employees) 

g. Personnel Mobility 

 

 (i) Movement of non-supervisory to supervisory 

 (ii) Movement of non-supervisory to non-supervisory 

 (iii) Movement of supervisory to non-supervisory to 

supervisory 

h. Bargaining History - certifications, contracts, and status of each. 

Status of negotiations. Description of levels at which grievances 

are addressed. Actual or potential impact of changes due to 

internal realignment? 

10. Conditions of Employment 

 

a. Flow of work 

b. Desires of employees 

c. Proposed unit 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

1

TABLE OF AUTHORITIES

FEDERAL LABOR RELATIONS AUTHORITY DECISIONS

American Federation of Government Employees, Local 2419, 53 FLRA 835 

(1997) ...................................................................................................................33-6

American Federation of Government Employees, Local 2000, AFL-CIO, 8 

FLRA 718 (1982) ..................................................................................................33-5

Army and Air Force Exchange Service, Dallas, Texas (AAFES), 5 FLRA 657 (1981)37-4, 39-4, 

Defense Logistics Agency, Defense Contract Management Command, Defense 

Contract Management District, North Central, Defense Plant Representative OfficeThiokol, Brigham City, Utah (DPRO-Thiokol), 41 FLRA 316 (1991)13-2, 39-4, 

.............................................................................................................................39-5

Defense Logistics Agency, Defense Supply Center Columbus, Columbus, Ohio 

(DLA Columbus), 53 FLRA 1114 (1998) ..............................................................39-2

Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 

46 FLRA 502 (1992) ....................................................................................37-1, 39-5

Department of Agriculture, Farmers Home Administration and National 

Federation of Federal Employees, Independent, 20 FLRA 216 (1985) ................49-3

Department of Defense, Department of the Navy, Portsmouth Naval Shipyard, 

Portsmouth, New Hampshire, 14 FLRA 76 (1984) ...............................................22-1

Department of Defense, National Guard Bureau and National Federation of 

Federal Employees, Independent, Department of Defense, National Guard 

Bureau and National Association of Government Employees, 13 FLRA 232 (1983)49-3

Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 4 

FLRA 655 (1980) ..................................................................................................57-2

Department of Energy, Western Area Power Administration (WAPA), 

38 FLRA 935 (1990) .............................................................................................50-1

Department of Housing and Urban Development, Washington, D.C., 

35 FLRA 1249 (1990) ..................................................................................13-2, 51-1
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

2

Department of Justice, Washington, DC, 50 FLRA 439 (1995) ............................26-2

Department of the Army, Headquarters, Fort Dix, Fort Dix, New Jersey 

(Fort Dix), 53 FRA 287 (1997) ............................................................................39-11

Department of the Navy, Naval Computer and Telecommunications Area, Master 

Station-Atlantic, Base Level Communications Department, Regional Operations 

Division, Norfolk, Virginia, Base Communications Office -Mechanicsburg, 

56 FLRA 228 (2000) .............................................................................................37-3

Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, 

Washington and Department of the Navy, Fleet Industrial Supply Center, 

Bremerton, Washington (FISC, Bremerton), 53 FLRA 173 (1997) ............39-7, 39-14

Department of the Navy, Pearl Harbor Naval Shipyard Restaurant System, 

Pearl Harbor, Hawaii (Pearl Harbor) 28 FLRA 172 (1987) ...................................44-1

Department of Transportation, Federal Aviation Administration, New England 

Region (FAA), 20 FLRA 224 (1985) .....................................................................33-7

Department of Transportation, Washington, D.C. (DOT), 5 FLRA 646 (1981) ....37-3, 

.............................................................................................................................49-4

Division of Military And Naval Affairs (New York National Guard), Latham, New York 

and National Federation of Civilian Technicians (NYNG), 53 FLRA 111 

(1997) ...................................................................................................................46-2

Environmental Protection Agency, Region VIII, Denver, Colorado, 15 FLRA 184 

(1984) ...................................................................................................................26-3

Federal Aviation Administration, Northwest Mountain Region, Renton, 

Washington, 51 FLRA 986 (1996) ..........................................................................6-1

Federal Mediation and Conciliation Service, 52 FLRA 1509 (1997) .....................54-1

Federal Mediation and Conciliation Service, Region 7, San Francisco, 

California, 3 FLRA 138 (1980) ..............................................................................54-1

Long Beach Veterans Administration Medical Center, Long Beach, California, 

7 FLRA 434 (1981) ...............................................................................................18-3

Morale, Welfare and Recreation Directorate, Marine Corps Air Station, Cherry Point, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

3

North Carolina (Morale, Welfare), 45 FLRA 281 (1992) .......................................39-2
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

4

National Aeronautics and Space Administration, Headquarters, Administrative 

Division, 12 FLRA 152 (1983) ..............................................................................43-1

National Association of Governement Employees, Local R5-66, 17 FLRA 796 

(1985) ...................................................................................................................33-5

National Mediation Board, 54 FLRA 1474 (1998) ........................................13-4, 18-4

New Mexico Army and Air National Guard, 56 FLRA 145 (2000) .........................43-4

Office of Hearings and Appeals, Social Security Administration, 16 FLRA 1175 

(1984) ...................................................................................................................45-1

Pennsylvania Air National Guard, 13 FLRA 538 (1983) .......................................18-6

Social Security Administration, District Office, Valdosta, Georgia 

(SSA, Valdosta), 52 FLRA 1084 (1997) .............................................................39-14

U.S. Department of Defense, National Guard Bureau, New York National 

Guard, Latham, New York, 46 FLRA 1468 (1993) ...............................................13-4

U.S. Department of Energy, Oak Ridge Operations Office, Oak Ridge, 

Tennessee (DOE Oak Ridge), 15 FLRA 130 (1984) ..........................................39-11

U.S. Department of Justice, Federal Bureau of Prisons, U.S. Penitentiary, 

Marion, Illinois (DOJ), 55 FLRA 1243 (2000) .......................................................53-2

U.S. Department of Labor, Office of the Solicitor, Arlington Field Office, 37 

FLRA 1371 (1990) ................................................................................................55-1

U.S. Department of Labor, Pension and Welfare Benefits Administration, 38 

FLRA 65 (1990) ....................................................................................................54-1

U.S. Department of the Air Force, Air Force Materiel Command, 

Wright-Patterson Air Force Base, Ohio (AFMC), 55 FLRA 359 (1999)39-4, 49-1, 

U.S. Department of the Air Force, Air Force Materiel Command, 

Wright-Patterson Air Force Base, Ohio, 55 FLRA 359 (1999) ..............................39-4

U.S. Department of the Air Force, Scott Air Force Base, Illinois, and National 

Association of Government Employees, 35 FLRA 978 (1990) .............................13-4
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

5

U.S. Department of the Interior, Bureau of Land Management, Phoenix, 

Arizona (BLM), 56 FLRA 202 (2000) ....................................................................40-1

U.S. Department of the Interior, National Park Service, 55 

FLRA 466 (1999) ......................................................................... 4-1, 17-7,18-8, 25-1

U.S. Department of the Interior, National Park Service, Washington, DC, 55 

FLRA 311 (1999) ......................................................... 18-4, 18-7, 32-3, 35-12, 35-17

U.S. Department of the Navy, Commander, Naval Base, Norfolk, Virginia, 56 

FLRA 328 (2000) ..................................................................................................39-2

U.S. Department of Transportation, U.S. Coast Guard Finance Center, 

Chesapeake, Virginia, 34 FLRA 946 (1990) .........................................................33-5

U.S. Information Agency, Washington, D.C. and American Federation of 

Government Employees, Local 1812, AFL-CIO, (USIA), 53 FLRA 999 

(1997) ..........................................................................................................17-4, 46-2

U.S. Small Business Administration, 32 FLRA 847 (1988) ...................................51-1

United States Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 55 

FLRA 940 (1999) ..................................................................................................33-6

United States Department of Justice, United States Immigration and Naturalization 

Service, United States Border Patrol, El Paso, Texas and American Federation of 

Government Employees, AFL-CIO, National Border Patrol Council, 41 FLRA 259, 

263 (1991) ............................................................................................................13-4

United States Department of the Navy, Fleet and Industrial Supply 

Center, Norfolk, Virginia, (FISC, Norfolk), 

52 FLRA 950 (1997) ....................................................37-1-37-3, 39-5, 39-13, 39-14, 

.............................................................................................................................49-3

USA DARCOM Materiel Readiness Support Activity (MRSA), Lexington, Kentucky, 

1 FLRA 430 (1979) ..............................................................................................26-2

Utah Army National Guard, U.S. Department of the Army, Draper, Utah, an 

unnumbered Authority Decision denying an application for review in 

Case No. DE-RP-80021, (1999) ..........................................................................17-7

Veterans Administration Medical Center, Fayetteville, North Carolina, 
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

6

8 FLRA 651 (1982) ..............................................................................................26-3
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

7

A/SLMR DECISIONS

Army and Air Force Exchange Service, White Sands Missile Range Exchange 

White Sands Missile Range, New Mexico, 1 A/SLMR 147 (1971) ........................9-1

Defense Supply Agency, Defense Contract Administration Services 

Region, San Francisco, California, et al.(DCASR), 4 FLRC 669 (1976) .....37-3, 37-4

Department of State, Passport Office, Chicago Passport Agency, Chicago, 

Illinois, 8 A/SLMR 946 (1978) ..............................................................................37-3

Department of Transportation, Federal Aviation Administration, Southwest 

Region, Tulsa Airway Facilities Sector (Tulsa AFS), 3 FLRC 235 (1975) ...37-2, 37-3

Department of Transportation, National Highway Traffic Safety Administration, 2 

A/SLMR 433 (1972)...............................................................................................9-1

United States Army Safeguard Logistics Command, Huntsville, Alabama, 2 

A/SLMR 582 (1972)...............................................................................................9-1

NATIONAL LABOR RELATIONS BOARD DECISIONS

Dun & Bradstreet-II, 240 NLRB 162 (1979) .........................................................57-1

FEDERAL CIRCUIT COURT OF APPEALS DECISIONS

Sacramento Air Logistics Center, McClellan AFB, California v. FLRA, 

877 F.2d 1036 (D.C. Cir. 1989) .............................................................................6-1

United States Department of Energy v. FLRA (Department of Energy), 

880 F.2d 1163 (10th Cir. 1989) ...........................................................................50-1

Western Oil and Gas v. U.S. Environmental Protection Agency, 633 F.2d 803 

(9th Cir. 1980) ......................................................................................................13-5

SUPREME COURT DECISIONS

Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591 (1948) ..................13-5
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

8
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

9

PUBLICATIONS

A Policy for Employee-Management Cooperation in the Federal Sector, November 

30, 1961 ..............................................................................................................37-2

Administrative Law, Stein, Mitchell and Mezines,, 40.01 .....................................13-4
Office of the General Counsel 

Hearing Officer‟s Guide Revised August 2000 

10

OTHER OFFICE OF THE GENERAL COUNSEL 

 RESOURCE MANUALS 

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 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. 

The Litigation Manual (LM) provides comprehensive guidance to regional Trial 

Attorneys in prosecuting ULP cases. The Manual covers each aspect of the trial 

process-from the issuance of a complaint and notice of hearing to the Authority‟s 

decision and order. Where appropriate, it refers to OGC Policy and relevant case 

law, and contains many examples of litigation techniques, both in the body of the 

Manual (Binder I) which concerns substantive litigation guidelines, and in the 

Attachments section of the Manual (Binder II) which contains a compilation of 

forms, policies, OGC Guidances, or models relating to the subject matter covered 

in Binder I.