WAIS Document Retrieval

[Code of Federal Regulations]
[Title 5, Volume 3, Parts 1200 to end]
[Revised as of January 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2423]

[Page 379-390]

TITLE 5--ADMINISTRATIVE PERSONNEL

CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

Sec.
2423.1 Applicability of this part.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges

2423.2 Informal proceedings.
2423.3 Who may file charges.
2423.4 Contents of the charge; supporting evidence and documents.
2423.5 Selection of the unfair labor practice procedure or the
negotiability procedure.
2423.6 Filing and service of copies.
2423.7 Investigation of charges.
2423.8 Amendment of charges.
2423.9 Action by the Regional Director.
2423.10 Determination not to issue complaint; review of action by the
Regional Director.
2423.11 Settlement prior to issuance of a complaint.
2423.12-2423.19 [Reserved]

Subpart B--Post Complaint, Prehearing Procedures

2423.20 Issuance and contents of the complaint; answer to the
complaint; amendments; role of Office of the Administrative
Law Judges.
2423.21 Motions procedure.
2423.22 Intervenors.
2423.23 Prehearing disclosure.
2423.24 Powers and duties of the Administrative Law Judge during
prehearing proceedings.
2423.25 Post complaint, prehearing settlements.
2423.26 Stipulations of fact submissions.
2423.27 Summary judgment motions.
2423.28 Subpoenas.
2423.29 [Reserved]

Subpart C--Hearing Procedures.

2423.30 General rules.
2423.31 Powers and duties of the Administrative Law Judge at the
hearing.
2423.32 Burden of proof before the Administrative Law Judge.
2423.33 Posthearing briefs.
2423.34 Decision and record.
2423.35-2423.39 [Reserved]

Subpart D--Post-Transmission and Exceptions to Authority Procedures

2423.40 Exceptions; oppositions and cross-exceptions; oppositions to
cross-exceptions; waiver.
2423.41 Action by the Authority; compliance with Authority decisions
and orders.
2423.42 Backpay proceedings.
2423.43-2423.49 [Reserved]

Authority: 5 U.S.C. 7134.

Source: 62 FR 40916, July 31, 1997, unless otherwise noted.

Sec. 2423.1 Applicability of this part.

This part is applicable to any charge of alleged unfair labor
practices filed with the Authority on or after January 11, 1979, and any
complaint filed on or after October 1, 1997.

Subpart A--Filing, Investigating, Resolving, and Acting on Charges

Sec. 2423.2 Informal proceedings.

(a) The purposes and policies of the Federal Service Labor-
Management Relations Statute can best be achieved by the cooperative
efforts of all persons covered by the program. To this end, it shall be
the policy of the Authority and the General Counsel to encourage all
persons alleging unfair labor practices and persons against whom such
allegations are made to meet and, in good faith, attempt to resolve such
matters prior to the filing of unfair labor practice charges with the
Authority.
(b) In furtherance of the policy referred to in paragraph (a) of
this section, and noting the six (6) month period of limitation set
forth in 5 U.S.C. 7118(a)(4), it shall be the policy of the Authority
and the General Counsel to encourage the informal resolution of unfair
labor practice allegations subsequent to the filing of a charge and
prior to the issuance of a complaint by the Regional Director.
(c) In order to afford the parties an opportunity to implement the
policy referred to in paragraphs (a) and (b) of this section, the
investigation of an unfair labor practice charge by the Regional
Director will normally not commence until the parties have been afforded
a reasonable amount of time, not to exceed 15 days from the filing of
the charge, during which period the parties are urged to attempt to
informally resolve the unfair labor practice allegation.

Sec. 2423.3 Who may file charges.

An activity, agency or labor organization may be charged by any
person with having engaged in or engaging in

[[Page 380]]

any unfair labor practice prohibited under 5 U.S.C. 7116.

Sec. 2423.4 Contents of the charge; supporting evidence and documents.

(a) A charge alleging a violation of 5 U.S.C. 7116 shall be
submitted on forms prescribed by the Authority and shall contain the
following:
(1) The name, address and telephone number of the person(s) making
the charge;
(2) The name, address and telephone number of the activity, agency,
or labor organization against whom the charge is made;
(3) A clear and concise statement of the facts constituting the
alleged unfair labor practice, a statement of the section(s) and
paragraph(s) of chapter 71 of title 5 of the United States Code alleged
to have been violated, and the date and place of occurrence of the
particular acts; and
(4) A statement of any other procedure invoked involving the subject
matter of the charge and the results, if any, including whether the
subject matter raised in the charge:
(i) has been raised previously in a grievance procedure;
(ii) has been referred to the Federal Service Impasses Panel, the
Federal Mediation and Conciliation Service, the Equal Employment
Opportunity Commission, the Merit Systems Protection Board or the
Special Counsel of the Merit Systems Protection Board for consideration
or action; or
(iii) involves a negotiability issue raised by the charging party in
a petition pending before the Authority pursuant to part 2424 of this
subchapter.
(b) Such charge shall be in writing and signed and shall contain a
declaration by the person signing the charge, under the penalties of the
Criminal Code (18 U.S.C. 1001), that its contents are true and correct
to the best of that person's knowledge and belief.
(c) When filing a charge, the charging party shall submit to the
Regional Director any supporting evidence and documents.

Sec. 2423.5 Selection of the unfair labor practice procedure or the
negotiability procedure.

Where a labor organization files an unfair labor practice charge
pursuant to this part which involves a negotiability issue, and the
labor organization also files pursuant to part 2424 of this subchapter a
petition for review of the same negotiability issue, the Authority and
the General Counsel ordinarily will not process the unfair labor
practice charge and the petition for review simultaneously. Under such
circumstances, the labor organization must select under which procedure
to proceed. Upon selection of one procedure, further action under the
other procedure will ordinarily be suspended. Such selection must be
made regardless of whether the unfair labor practice charge or the
petition for review of a negotiability issue is filed first.
Notification of this selection must be made in writing at the time that
both procedures have been invoked, and must be served on the Authority,
the appropriate Regional Director and all parties to both the unfair
labor practice case and the negotiability case. Cases which solely
involve an agency's allegation that the duty to bargain in good faith
does not extend to the matter proposed to be bargained and which do not
involve actual or contemplated changes in conditions of employment may
only be filed under part 2424 of this subchapter.

Sec. 2423.6 Filing and service of copies.

(a) An original and four (4) copies of the charge together with one
copy for each additional charged party named shall be filed with the
Regional Director for the region in which the alleged unfair labor
practice has occurred or is occurring. A charge alleging that an unfair
labor practice has occurred or is occurring in two or more regions may
be filed with the Regional Director for any such region.
(b) Upon the filing of a charge, the charging party shall be
responsible for the service of a copy of the charge (without the
supporting evidence and documents) upon the person(s) against whom the
charge is made, and for filing

[[Page 381]]

a written statement of such service with the Regional Director. The
Regional Director will, as a matter of course, cause a copy of such
charge to be served on the person(s) against whom the charge is made,
but shall not be deemed to assume responsibility for such service.
(c) A charge will be deemed to be filed when it is received by the
appropriate Regional Director in accordance with the requirements in
paragraph (a) of this section.

Sec. 2423.7 Investigation of charges.

(a) The Regional Director, on behalf of the General Counsel, shall
conduct such investigation of the charge as the Regional Director deems
necessary. Consistent with the policy set forth in Sec. 2423.2, the
investigation will normally not commence until the parties have been
afforded a reasonable amount of time, not to exceed 15 days from the
filing of the charge, to informally resolve the unfair labor practice
allegation.
(b) During the course of the investigation all parties involved will
have an opportunity to present their evidence and views to the Regional
Director.
(c) In connection with the investigation of charges, all persons are
expected to cooperate fully with the Regional Director.
(d) The purposes and policies of the Federal Service Labor-
Management Relations Statute can best be achieved by the full
cooperation of all parties involved and the voluntary submission of all
potentially relevant information from all potential sources during the
course of the investigation. To this end, it shall be the policy of the
Authority and the General Counsel to protect the identity of individuals
and the substance of the statements and information they submit or which
is obtained during the investigation as a means of assuring the
Authority's and the General Counsel's continuing ability to obtain all
relevant information.

Sec. 2423.8 Amendment of charges.

Prior to the issuance of a complaint, the charging party may amend
the charge in accordance with the requirements set forth in Sec. 2423.6.

Sec. 2423.9 Action by the Regional Director.

(a) The Regional Director shall take action which may consist of the
following, as appropriate:
(1) Approve a request to withdraw a charge;
(2) Refuse to issue a complaint;
(3) Approve a written settlement agreement in accordance with the
provisions of part 2423;
(4) Issue a complaint; or
(5) Withdraw a complaint.
(b) Parties may request the General Counsel to seek appropriate
temporary relief (including a restraining order) under 5 U.S.C. 7123(d).
The General Counsel will initiate and prosecute injunctive proceedings
under 5 U.S.C. 7123(d) only upon approval of the Authority. A
determination by the General Counsel not to seek approval of the
Authority for such temporary relief is final and may not be appealed to
the Authority.
(c) Upon a determination to issue a complaint, whenever it is deemed
advisable by the Authority to seek appropriate temporary relief
(including a restraining order) under 5 U.S.C. 7123(d), the Regional
Attorney or other designated agent of the Authority to whom the matter
has been referred will make application for appropriate temporary relief
(including a restraining order) in the district court of the United
States within which the unfair labor practice is alleged to have
occurred or in which the party sought to be enjoined resides or
transacts business. Such temporary relief will not be sought unless the
record establishes probable cause that an unfair labor practice is being
committed, or if such temporary relief will interfere with the ability
of the agency to carry out its essential functions.
(d) Whenever temporary relief has been obtained pursuant to 5 U.S.C.
7123(d) and thereafter the Administrative Law Judge hearing the
complaint, upon which the determination to seek such temporary relief
was predicated, recommends dismissal of such complaint, in whole or in
part, the Regional Attorney or other designated agent of the Authority
handling the case for the Authority shall inform the

[[Page 382]]

district court which granted the temporary relief of the possible change
in circumstances arising out of the decision of the Administrative Law
Judge.

Sec. 2423.10 Determination not to issue complaint; review of action by
the Regional Director.

(a) If the Regional Director determines that the charge has not been
timely filed, that the charge fails to state an unfair labor practice,
or for other appropriate reasons, the Regional Director may request the
charging party to withdraw the charge, and in the absence of such
withdrawal within a reasonable time, decline to issue a complaint.
(b) If the Regional Director determines not to issue a complaint on
a charge which is not withdrawn, the Regional Director shall provide the
parties with a written statement of the reasons for not issuing a
complaint.
(c) The charging party may obtain a review of the Regional
Director's decision not to issue a complaint by filing an appeal with
the General Counsel within 25 days after service of the Regional
Director's decision. The appeal shall contain a complete statement
setting forth the facts and reasons upon which it is based. A copy of
the appeal shall also be filed with the Regional Director. In addition,
the charging party should notify all other parties of the fact that an
appeal has been taken, but any failure to give such notice shall not
affect the validity of the appeal.
(d) A request for extension of time to file an appeal shall be in
writing and received by the General Counsel not later than 5 days before
the date the appeal is due. The charging party should notify the
Regional Director and all other parties that it has requested an
extension of time in which to file an appeal, but any failure to give
such notice shall not affect the validity of its request for an
extension of time to file an appeal.
(e) The General Counsel may sustain the Regional Director's refusal
to issue or re-issue a complaint, stating the grounds of affirmance, or
may direct the Regional Director to take further action. The General
Counsel's decision shall be served on all the parties. The decision of
the General Counsel shall be final.

Sec. 2423.11 Settlement prior to issuance of a complaint.

(a) Prior to the issuance of any complaint or the taking of other
formal action, the Regional Director will afford the Charging Party and
the Respondent a reasonable period of time in which to enter into an
informal settlement agreement to be approved by the Regional Director.
Upon approval by the Regional Director and compliance with the terms of
the informal settlement agreement, no further action shall be taken in
the case. If the Respondent fails to perform its obligations under the
informal settlement agreement, the Regional Director may determine to
institute further proceedings.
(b) In the event that the Charging Party fails or refuses to become
a party to an informal settlement agreement offered by the Respondent,
if the Regional Director concludes that the offered settlement will
effectuate the policies of the Federal Service Labor-Management
Relations Statute, the Regional Director shall enter into the agreement
with the Respondent and shall decline to issue a complaint. The Charging
Party may obtain a review of the Regional Director's action by filing an
appeal with the General Counsel in accordance with Sec. 2423.10(c). The
General Counsel shall take action on such appeal as set forth in
Sec. 2423.10(e).

Secs. 2423.12-2423.19 [Reserved]

Subpart B--Post Complaint, Prehearing Procedures

Sec. 2423.20 Issuance and contents of the complaint; answer to the
complaint; amendments; role of Office of Administrative Law
Judges.

(a) Complaint. Whenever formal proceedings are deemed necessary, the
Regional Director shall file and serve, in accordance with Sec. 2429.12
of this subchapter, a complaint with the Office of Administrative Law
Judges. The decision to issue a complaint shall not be subject to
review. Any complaint may be withdrawn by the Regional Director

[[Page 383]]

prior to the hearing. The complaint shall set forth:
(1) Notice of the charge;
(2) The basis for jurisdiction;
(3) The facts alleged to constitute an unfair labor practice;
(4) The particular sections of 5 U.S.C., chapter 71 and the rules
and regulations involved;
(5) Notice of the date, time, and place that a hearing will take
place before an Administrative Law Judge; and
(6) A brief statement explaining the nature of the hearing.
(b) Answer. Within 20 days after the date of service of the
complaint, but in any event, prior to the beginning of the hearing, the
Respondent shall file and serve, in accordance with part 2429 of this
subchapter, an answer with the Office of Administrative Law Judges. The
answer shall admit, deny, or explain each allegation of the complaint.
If the Respondent has no knowledge of an allegation or insufficient
information as to its truthfulness, the answer shall so state. Absent a
showing of good cause to the contrary, failure to file an answer or
respond to any allegation shall constitute an admission. Motions to
extend the filing deadline shall be filed in accordance with
Sec. 2423.21.
(c) Amendments. The Regional Director may amend the complaint at any
time before the answer is filed. The Respondent then has 20 days from
the date of service of the amended complaint to file an answer with the
Office of Administrative Law Judges. Prior to the beginning of the
hearing, the answer may be amended by the Respondent within 20 days
after the answer is filed. Thereafter, any requests to amend the
complaint or answer must be made by motion to the Office of
Administrative Law Judges.
(d) Office of Administrative Law Judges. Pleadings, motions,
conferences, hearings, and other matters throughout as specified in
subparts B, C, and D of this part shall be administered by the Office of
Administrative Law Judges, as appropriate. The Chief Administrative Law
Judge, or any Administrative Law Judge designated by the Chief
Administrative Law Judge, shall administer any matters properly
submitted to the Office of Administrative Law Judges. Throughout
subparts B, C, and D of this part, ``Administrative Law Judge'' or
``Judge'' refers to the Chief Administrative Law Judge or his or her
designee.

Sec. 2423.21 Motions procedure.

(a) General requirements. All motions, except those made during a
prehearing conference or hearing, shall be in writing. Motions for an
extension of time, postponement of a hearing, or any other procedural
ruling shall include a statement of the position of the other parties on
the motion. All written motions and responses in subparts B, C, or D of
this part shall satisfy the filing and service requirements of part 2429
of this subchapter.
(b) Motions made to the Administrative Law Judge. Prehearing motions
and motions made at the hearing shall be filed with the Administrative
Law Judge. Unless otherwise specified in subparts B or C of this part,
or otherwise directed or approved by the Administrative Law Judge:
(1) Prehearing motions shall be filed at least 10 days prior to the
hearing, and responses shall be filed within 5 days after the date of
service of the motion;
(2) Responses to motions made during the hearing shall be filed
prior to the close of hearing;
(3) Posthearing motions shall be filed within 10 days after the date
the hearing closes, and responses shall be filed within 5 days after the
date of service of the motion; and
(4) Motions to correct the transcript shall be filed with the
Administrative Law Judge within 10 days after receipt of the transcript,
and responses shall be filed within 5 days after the date of service of
the motion.
(c) Post-transmission motions. After the case has been transmitted
to the Authority, motions shall be filed with the Authority. Responses
shall be filed within 5 days after the date of service of the motion.
(d) Interlocutory appeals. Motions for an interlocutory appeal of
any ruling and responses shall be filed in accordance with this section
and Sec. 2423.31(c).

[[Page 384]]

Sec. 2423.22 Intervenors.

Motions for permission to intervene and responses shall be filed in
accordance with Sec. 2423.21. Such motions shall be granted upon a
showing that the outcome of the proceeding is likely to directly affect
the movant's rights or duties. Intervenors may participate only: on the
issues determined by the Administrative Law Judge to affect them; and to
the extent permitted by the Judge. Denial of such motions may be
appealed pursuant to Sec. 2423.21(d).

Sec. 2423.23 Prehearing disclosure.

Unless otherwise directed or approved by the Judge, the parties
shall exchange, in accordance with the service requirements of
Sec. 2429.27(b) of this subchapter, the following items at least 14 days
prior to the hearing:
(a) Witnesses. Proposed witness lists, including a brief synopsis of
the expected testimony of each witness;
(b) Documents. Copies of documents, with an index, proposed to be
offered into evidence; and
(c) Theories. A brief statement of the theory of the case, including
relief sought, and any and all defenses to the allegations in the
complaint.

Sec. 2423.24 Powers and duties of the Administrative Law Judge during
prehearing proceedings.

(a) Prehearing procedures. The Administrative Law Judge shall
regulate the course and scheduling of prehearing matters, including
prehearing orders, conferences, disclosure, motions, and subpoena
requests.
(b) Changing date, time, or place of hearing. After issuance of the
complaint or any prehearing order, the Administrative Law Judge may, in
the Judge's discretion or upon motion by any party through the motions
procedure in Sec. 2423.21, change the date, time, or place of the
hearing.
(c) Prehearing order. (1) The Administrative Law Judge may, in the
Judge's discretion or upon motion by any party through the motions
procedure in Sec. 2423.21, issue a prehearing order confirming or
changing:
(i) The date, time, or place of the hearing;
(ii) The schedule for prehearing disclosure of witness lists and
documents intended to be offered into evidence at the hearing;
(iii) The date for submission of procedural and substantive motions;
(iv) The date, time, and place of the prehearing conference; and
(v) Any other matter pertaining to prehearing or hearing procedures.
(2) The prehearing order shall be served in accordance with
Sec. 2429.12 of this subchapter.
(d) Prehearing conferences. The Administrative Law Judge shall
conduct one or more prehearing conferences, either by telephone or in
person, at least 7 days prior to the hearing date, unless the
Administrative Law Judge determines that a prehearing conference would
serve no purpose and no party has moved for a prehearing conference in
accordance with Sec. 2423.21. If a prehearing conference is held, all
parties must participate in the prehearing conference and be prepared to
discuss, narrow, and resolve the issues set forth in the complaint and
answer, as well as any prehearing disclosure matters or disputes. When
necessary, the Administrative Law Judge shall prepare and file for the
record a written summary of actions taken at the conference. Summaries
of the conference shall be served on all parties in accordance with
Sec. 2429.12 of this subchapter. The following may also be considered at
the prehearing conference:
(1) Settlement of the case, either by the Judge conducting the
prehearing conference or pursuant to Sec. 2423.25;
(2) Admissions of fact, disclosure of contents and authenticity of
documents, and stipulations of fact;
(3) Objections to the introduction of evidence at the hearing,
including oral or written testimony, documents, papers, exhibits, or
other submissions proposed by a party;
(4) Subpoena requests or petitions to revoke subpoenas;
(5) Any matters subject to official notice;
(6) Outstanding motions; or
(7) Any other matter that may expedite the hearing or aid in the
disposition of the case.
(e) Sanctions. The Administrative Law Judge may, in the Judge's
discretion or upon motion by any party through the motions procedure in

[[Page 385]]

Sec. 2423.21, impose sanctions upon the parties as necessary and
appropriate to ensure that a party's failure to fully comply with
subpart B or C of this part is not condoned. Such authority includes,
but is not limited to, the power to:
(1) Prohibit a party who fails to comply with any requirement of
subpart B or C of this part from, as appropriate, introducing evidence,
calling witnesses, raising objections to the introduction of evidence or
testimony of witnesses at the hearing, presenting a specific theory of
violation, seeking certain relief, or relying upon a particular defense.
(2) Refuse to consider any submission that is not filed in
compliance with subparts B or C of this part.

Sec. 2423.25 Post complaint, prehearing settlements.

(a) Informal and formal settlements. Post complaint settlements may
be either informal or formal.
(1) Informal settlement agreements provide for withdrawal of the
complaint by the Regional Director and are not subject to approval by or
an order of the Authority. If the Respondent fails to perform its
obligations under the informal settlement agreement, the Regional
Director may reinstitute formal proceedings consistent with this
subpart.
(2) Formal settlement agreements are subject to approval by the
Authority, and include the parties' agreement to waive their right to a
hearing and acknowledgment that the Authority may issue an order
requiring the Respondent to take action appropriate to the terms of the
settlement. The formal settlement agreement shall also contain the
Respondent's consent to the Authority's application for the entry of a
decree by an appropriate federal court enforcing the Authority's order.
(b) Informal settlement procedure. If the Charging Party and the
Respondent enter into an informal settlement agreement that is accepted
by the Regional Director, the Regional Director shall withdraw the
complaint and approve the informal settlement agreement. If the Charging
Party fails or refuses to become a party to an informal settlement
agreement offered by the Respondent, and the Regional Director concludes
that the offered settlement will effectuate the policies of the Federal
Service Labor-Management Relations Statute, the Regional Director shall
enter into the agreement with the Respondent and shall withdraw the
complaint. The Charging Party then may obtain a review of the Regional
Director's action by filing an appeal with the General Counsel as
provided in subpart A of this part.
(c) Formal settlement procedure. If the Charging Party and the
Respondent enter into a formal settlement agreement that is accepted by
the Regional Director, the Regional Director shall withdraw the
complaint upon approval of the formal settlement agreement by the
Authority. If the Charging Party fails or refuses to become a party to a
formal settlement agreement offered by the Respondent, and the Regional
Director concludes that the offered settlement will effectuate the
policies of the Federal Service Labor-Management Relations Statute, the
agreement shall be between the Respondent and the Regional Director. The
formal settlement agreement together with the Charging Party's
objections, if any, shall be submitted to the Authority for approval.
The Authority may approve a formal settlement agreement upon a
sufficient showing that it will effectuate the policies of the Federal
Service Labor-Management Relations Statute.
(d) Settlement judge program. The Administrative Law Judge, in the
Judge's discretion or upon the request of any party, may assign a judge
or other appropriate official, who shall be other than the hearing judge
unless otherwise mutually agreed to by the parties, to conduct
negotiations for settlement.
(1) The settlement official shall convene and preside over
settlement conferences by telephone or in person.
(2) The settlement official may require that the representative for
each party be present at settlement conferences and that the parties or
agents with full settlement authority be present or available by
telephone.
(3) The settlement official shall not discuss any aspect of the case
with the hearing judge.

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(4) No evidence regarding statements, conduct, offers of settlement,
and concessions of the parties made in proceedings before the settlement
official shall be admissible in any proceeding before the Administrative
Law Judge or Authority, except by stipulation of the parties.

Sec. 2423.26 Stipulations of fact submissions.

(a) General. When all parties agree that no material issue of fact
exists, the parties may jointly submit a motion to the Administrative
Law Judge or Authority requesting consideration of the matter based upon
stipulations of fact. Briefs of the parties are required and must be
submitted within 30 days of the joint motion. Upon receipt of the
briefs, such motions shall be ruled upon expeditiously.
(b) Stipulations to the Administrative Law Judge. Where the
stipulation adequately addresses the appropriate material facts, the
Administrative Law Judge may grant the motion and decide the case
through stipulation.
(c) Stipulations to the Authority. Where the stipulation provides an
adequate basis for application of established precedent and a decision
by the Administrative Law Judge would not assist in the resolution of
the case, or in unusual circumstances, the Authority may grant the
motion and decide the case through stipulation.
(d) Decision based on stipulation. Where the motion is granted, the
Authority will adjudicate the case and determine whether the parties
have met their respective burdens based on the stipulation and the
briefs.

Sec. 2423.27 Summary judgment motions.

(a) Motions. Any party may move for a summary judgment in its favor
on any of the issues pleaded. Unless otherwise approved by the
Administrative Law Judge, such motion shall be made no later than 10
days prior to the hearing. The motion shall demonstrate that there is no
genuine issue of material fact and that the moving party is entitled to
a judgment as a matter of law. Such motions shall be supported by
documents, affidavits, applicable precedent, or other appropriate
materials.
(b) Responses. Responses must be filed within 5 days after the date
of service of the motion. Responses may not rest upon mere allegations
or denials but must show, by documents, affidavits, applicable
precedent, or other appropriate materials, that there is a genuine issue
to be determined at the hearing.
(c) Decision. If all issues are decided by summary judgment, no
hearing will be held and the Administrative Law Judge shall prepare a
decision in accordance with Sec. 2423.34. If summary judgment is denied,
or if partial summary judgment is granted, the Administrative Law Judge
shall issue an opinion and order, subject to interlocutory appeal as
provided in Sec. 2423.31(c) of this subchapter, and the hearing shall
proceed as necessary.

Sec. 2423.28 Subpoenas.

(a) When necessary. Where the parties are in agreement that the
appearance of witnesses or the production of documents is necessary, and
such witnesses agree to appear, no subpoena need be sought.
(b) Requests for subpoenas. A request for a subpoena by any person,
as defined in 5 U.S.C. 7103(a)(1), shall be in writing and filed with
the Office of Administrative Law Judges not less than 10 days prior to
the hearing, or with the Administrative Law Judge during the hearing.
Requests for subpoenas made less than 10 days prior to the hearing shall
be granted on sufficient explanation of why the request was not timely
filed.
(c) Subpoena procedures. The Office of Administrative Law Judges, or
any other employee of the Authority designated by the Authority, as
appropriate, shall furnish the requester the subpoenas sought, provided
the request is timely made. Requests for subpoenas may be made ex parte.
Completion of the specific information in the subpoena and the service
of the subpoena are the responsibility of the party on whose behalf the
subpoena was issued.
(d) Service of subpoena. A subpoena may be served by any person who
is at least 18 years old and who is not a party to the proceeding. The
person who served the subpoena must certify that he or she did so:

[[Page 387]]

(1) By delivering it to the witness in person,
(2) By registered or certified mail, or
(3) By delivering the subpoena to a responsible person (named in the
document certifying the delivery) at the residence or place of business
(as appropriate) of the person for whom the subpoena was intended. The
subpoena shall show on its face the name and address of the party on
whose behalf the subpoena was issued.
(e)(1) Petition to revoke subpoena. Any person served with a
subpoena who does not intend to comply shall, within 5 days after the
date of service of the subpoena upon such person, petition in writing to
revoke the subpoena. A copy of any petition to revoke a subpoena shall
be served on the party on whose behalf the subpoena was issued. Such
petition to revoke, if made prior to the hearing, and a written
statement of service, shall be filed with the Office of Administrative
Law Judges for ruling. A petition to revoke a subpoena filed during the
hearing, and a written statement of service, shall be filed with the
Administrative Law Judge.
(2) The Administrative Law Judge, or any other employee of the
Authority designated by the Authority, as appropriate, shall revoke the
subpoena if the person or evidence, the production of which is required,
is not material and relevant to the matters under investigation or in
question in the proceedings, or the subpoena does not describe with
sufficient particularity the evidence the production of which is
required, or if for any other reason sufficient in law the subpoena is
invalid. The Administrative Law Judge, or any other employee of the
Authority designated by the Authority, as appropriate, shall state the
procedural or other ground for the ruling on the petition to revoke. The
petition to revoke, any answer thereto, and any ruling thereon shall not
become part of the official record except upon the request of the party
aggrieved by the ruling.
(f) Failure to comply. Upon the failure of any person to comply with
a subpoena issued and upon the request of the party on whose behalf the
subpoena was issued, the Solicitor of the Authority shall institute
proceedings on behalf of such party in the appropriate district court
for the enforcement thereof, unless to do so would be inconsistent with
law and the Federal Service Labor-Management Relations Statute.

Sec. 2423.29 [Reserved]

Subpart C--Hearing Procedures

Sec. 2423.30 General rules.

(a) Open hearing. The hearing shall be open to the public unless
otherwise ordered by the Administrative Law Judge.
(b) Administrative Procedure Act. The hearing shall, to the extent
practicable, be conducted in accordance with 5 U.S.C. 554-557, and other
applicable provisions of the Administrative Procedure Act.
(c) Rights of parties. A party shall have the right to appear at any
hearing in person, by counsel, or by other representative; to examine
and cross-examine witnesses; to introduce into the record documentary or
other relevant evidence; and to submit rebuttal evidence, except that
the participation of any party shall be limited to the extent prescribed
by the Administrative Law Judge.
(d) Objections. Objections are oral or written complaints concerning
the conduct of a hearing. Any objection not raised to the Administrative
Law Judge shall be deemed waived.
(e) Oral argument. Any party shall be entitled, upon request, to a
reasonable period prior to the close of the hearing for oral argument,
which shall be included in the official transcript of the hearing.
(f) Official transcript. An official reporter shall make the only
official transcript of such proceedings. Copies of the transcript may be
examined in the appropriate Regional Office during normal working hours.
Parties desiring a copy of the transcript shall make arrangements for a
copy with the official hearing reporter.

Sec. 2423.31 Powers and duties of the Administrative Law Judge at the
hearing.

(a) Conduct of hearing. The Administrative Law Judge shall conduct
the

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hearing in a fair, impartial, and judicial manner, taking action as
needed to avoid unnecessary delay and maintain order during the
proceedings. The Administrative Law Judge may take any action necessary
to schedule, conduct, continue, control, and regulate the hearing,
including ruling on motions and taking official notice of material facts
when appropriate. No provision of these regulations shall be construed
to limit the powers of the Administrative Law Judge provided by 5 U.S.C.
556, 557, and other applicable provisions of the Administrative
Procedure Act.
(b) Evidence. The Administrative Law Judge shall receive evidence
and inquire fully into the relevant and material facts concerning the
matters that are the subject of the hearing. The Administrative Law
Judge may exclude any evidence that is immaterial, irrelevant, unduly
repetitious, or customarily privileged. Rules of evidence shall not be
strictly followed.
(c) Interlocutory appeals. Motions for an interlocutory appeal shall
be filed in writing with the Administrative Law Judge within 5 days
after the date of the contested ruling. The motion shall state why
interlocutory review is appropriate, and why the Authority should modify
or reverse the contested ruling.
(1) The Judge shall grant the motion and certify the contested
ruling to the Authority if:
(i) The ruling involves an important question of law or policy about
which there is substantial ground for difference of opinion; and
(ii) Immediate review will materially advance completion of the
proceeding, or the denial of immediate review will cause undue harm to a
party or the public.
(2) If the motion is granted, the Judge or Authority may stay the
hearing during the pendency of the appeal. If the motion is denied,
exceptions to the contested ruling may be filed in accordance with
Sec. 2423.40 of this subchapter after the Judge issues a decision and
recommended order in the case.
(d) Bench decisions. Upon joint motion of the parties, the
Administrative Law Judge may issue an oral decision at the close of the
hearing when, in the Judge's discretion, the nature of the case so
warrants. By so moving, the parties waive their right to file
posthearing briefs with the Administrative Law Judge, pursuant to
Sec. 2423.33. If the decision is announced orally, it shall satisfy the
requirements of Sec. 2423.34(a)(1)-(5) and a copy thereof, excerpted
from the transcript, together with any supplementary matter the judge
may deem necessary to complete the decision, shall be transmitted to the
Authority, in accordance with Sec. 2423.34(b), and furnished to the
parties in accordance with Sec. 2429.12 of this subchapter.
(e) Settlements after the opening of the hearing. As set forth in
Sec. 2423.25(a), settlements may be either informal or formal.
(1) Informal settlement procedure: Judge's approval of withdrawal.
If the Charging Party and the Respondent enter into an informal
settlement agreement that is accepted by the Regional Director, the
Regional Director may request the Administrative Law Judge for
permission to withdraw the complaint and, having been granted such
permission, shall withdraw the complaint and approve the informal
settlement between the Charging Party and Respondent. If the Charging
Party fails or refuses to become a party to an informal settlement
agreement offered by the Respondent, and the Regional Director concludes
that the offered settlement will effectuate the policies of the Federal
Service Labor-Management Relations Statute, the Regional Director shall
enter into the agreement with the Respondent and shall, if granted
permission by the Administrative Law Judge, withdraw the complaint. The
Charging Party then may obtain a review of the Regional Director's
decision as provided in subpart A of this part.
(2) Formal settlement procedure: Judge's approval of settlement. If
the Charging Party and the Respondent enter into a formal settlement
agreement that is accepted by the Regional Director, the Regional
Director may request the Administrative Law Judge to approve such formal
settlement agreement, and upon such approval, to transmit the agreement
to the Authority for approval. If the Charging Party fails or

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refuses to become a party to a formal settlement agreement offered by
the Respondent, and the Regional Director concludes that the offered
settlement will effectuate the policies of the Federal Service Labor-
Management Relations Statute, the agreement shall be between the
Respondent and the Regional Director. After the Charging Party is given
an opportunity to state on the record or in writing the reasons for
opposing the formal settlement, the Regional Director may request the
Administrative Law Judge to approve such formal settlement agreement,
and upon such approval, to transmit the agreement to the Authority for
approval.

Sec. 2423.32 Burden of proof before the Administrative Law Judge.

The General Counsel shall present the evidence in support of the
complaint and have the burden of proving the allegations of the
complaint by a preponderance of the evidence. The Respondent shall have
the burden of proving any affirmative defenses that it raises to the
allegations in the complaint.

Sec. 2423.33 Posthearing briefs.

Except when bench decisions are issued pursuant to Sec. 2423.31(d),
posthearing briefs may be filed with the Administrative Law Judge within
a time period set by the Judge, not to exceed 30 days from the close of
the hearing, unless otherwise directed by the judge, and shall satisfy
the filing and service requirements of part 2429 of this subchapter.
Reply briefs shall not be filed absent permission of the Judge. Motions
to extend the filing deadline or for permission to file a reply brief
shall be filed in accordance with Sec. 2423.21.

Sec. 2423.34 Decision and record.

(a) Recommended decision. Except when bench decisions are issued
pursuant to Sec. 2423.31(d), the Administrative Law Judge shall prepare
a written decision expeditiously in every case. All written decisions
shall be served in accordance with Sec. 2429.12 of this subchapter. The
decision shall set forth:
(1) A statement of the issues;
(2) Relevant findings of fact;
(3) Conclusions of law and reasons therefor;
(4) Credibility determinations as necessary; and
(5) A recommended disposition or order.
(b) Transmittal to Authority. The Judge shall transmit the decision
and record to the Authority. The record shall include the charge,
complaint, service sheet, answer, motions, rulings, orders, prehearing
conference summaries, stipulations, objections, depositions,
interrogatories, exhibits, documentary evidence, basis for any sanctions
ruling, official transcript of the hearing, briefs, and any other
filings or submissions made by the parties.

Secs. 2423.35-2423.39 [Reserved]

Subpart D--Post-Transmission and Exceptions to Authority Procedures

Sec. 2423.40 Exceptions; oppositions and cross-exceptions; oppositions
to cross-exceptions; waiver.

(a) Exceptions. Any exceptions to the Administrative Law Judge's
decision must be filed with the Authority within 25 days after the date
of service of the Judge's decision. Exceptions shall satisfy the filing
and service requirements of part 2429 of this subchapter. Exceptions
shall consist of the following:
(1) The specific findings, conclusions, determinations, rulings, or
recommendations being challenged; the grounds relied upon; and the
relief sought.
(2) Supporting arguments, which shall set forth, in order: all
relevant facts with specific citations to the record; the issues to be
addressed; and a separate argument for each issue, which shall include a
discussion of applicable law. Attachments to briefs shall be separately
paginated and indexed as necessary.
(3) Exceptions containing 25 or more pages shall include a table of
contents and a table of legal authorities cited.
(b) Oppositions and cross-exceptions. Unless otherwise directed or
approved by the Authority, oppositions to exceptions, cross-exceptions,
and oppositions to cross-exceptions may be filed with

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the Authority within 20 days after the date of service of the exceptions
or cross-exceptions, respectively. Oppositions shall state the specific
exceptions being opposed. Oppositions and cross-exceptions shall be
subject to the same requirements as exceptions set out in paragraph (a)
of this section.
(c) Reply briefs. Reply briefs shall not be filed absent prior
permission of the Authority.
(d) Waiver. Any exception not specifically argued shall be deemed to
have been waived.

Sec. 2423.41 Action by the Authority; compliance with Authority
decisions and orders.

(a) Authority decision; no exceptions filed. In the absence of the
filing of exceptions within the time limits established in Sec. 2423.40,
the findings, conclusions, and recommendations in the decision of the
Administrative Law Judge shall, without precedential significance,
become the findings, conclusions, decision and order of the Authority,
and all objections and exceptions to the rulings and decision of the
Administrative Law Judge shall be deemed waived for all purposes.
Failure to comply with any filing requirement established in
Sec. 2423.40 may result in the information furnished being disregarded.
(b) Authority decision; exceptions filed. Whenever exceptions are
filed in accordance with Sec. 2423.40, the Authority shall issue a
decision affirming or reversing, in whole or in part, the decision of
the Administrative Law Judge or disposing of the matter as is otherwise
deemed appropriate.
(c) Authority's order. Upon finding a violation, the Authority
shall, in accordance with 5 U.S.C. 7118(a)(7), issue an order directing
the violator, as appropriate, to cease and desist from any unfair labor
practice, or to take any other action to effectuate the purposes of the
Federal Service Labor-Management Relations Statute.
(d) Dismissal. Upon finding no violation, the Authority shall
dismiss the complaint.
(e) Report of compliance. After the Authority issues an order, the
Respondent shall, within the time specified in the order, provide to the
appropriate Regional Director a report regarding what compliance actions
have been taken. Upon determining that the Respondent has not complied
with the Authority's order, the Regional Director shall refer the case
to the Authority for enforcement or take other appropriate action.

Sec. 2423.42 Backpay proceedings.

After the entry of an Authority order directing payment of backpay,
or the entry of a court decree enforcing such order, if it appears to
the Regional Director that a controversy exists between the Authority
and a Respondent regarding backpay that cannot be resolved without a
formal proceeding, the Regional Director may issue and serve on all
parties a notice of hearing before an Administrative Law Judge to
determine the backpay amount. The notice of hearing shall set forth the
specific backpay issues to be resolved. The Respondent shall, within 20
days after the service of a notice of hearing, file an answer in
accordance with Sec. 2423.20. After the issuance of a notice of hearing,
the procedures provided in subparts B, C, and D of this part shall be
followed as applicable.

Secs. 2423.43-2423.49 [Reserved]