[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2023 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 29
Labor
________________________
Parts 100 to 499
Revised as of July 1, 2023
Containing a codification of documents of general
applicability and future effect
As of July 1, 2023
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 29:
SUBTITLE B--Regulations Relating to Labor
Chapter I--National Labor Relations Board 5
Chapter II--Office of Labor-Management Standards,
Department of Labor 137
Chapter III--National Railroad Adjustment Board 145
Chapter IV--Office of Labor-Management Standards,
Department of Labor 149
Finding Aids:
Table of CFR Titles and Chapters........................ 255
Alphabetical List of Agencies Appearing in the CFR...... 275
List of CFR Sections Affected........................... 285
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 29 CFR 100.101
refers to title 29, part
100, section 101.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 2023), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
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instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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For inquiries concerning CFR reference assistance, call 202-741-6000
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Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2023
[[Page ix]]
THIS TITLE
Title 29--Labor is composed of nine volumes. The parts in these
volumes are arranged in the following order: Parts 0-99, parts 100-499,
parts 500-899, parts 900-1899, parts 1900-Sec. 1910.999, part
1910.1000-end of part 1910, parts 1911-1925, parts 1926-1999, and part
2000 to end. The contents of these volumes represent all current
regulations codified under this title as of July 1, 2023.
The OMB control numbers for title 29 CFR part 1910 appear in Sec.
1910.8. For the convenience of the user, Sec. 1910.8 appears in the
Finding Aids section of the volume containing Sec. 1910.1000 to the
end.
For this volume, [Insert Name] was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum
Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 29--LABOR
(This book contains parts 100 to 499)
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SUBTITLE B--Regulations Relating to Labor
Part
chapter i--National Labor Relations Board................... 100
chapter ii--Office of Labor-Management Standards, Department
of Labor.................................................. 215
chapter iii--National Railroad Adjustment Board............. 301
chapter iv--Office of Labor-Management Standards, Department
of Labor.................................................. 401
[[Page 3]]
Subtitle B--Regulations Relating to Labor
[[Page 5]]
CHAPTER I--NATIONAL LABOR RELATIONS BOARD
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Part Page
100 Administrative regulations.................. 7
101 Statements of procedures.................... 21
102 Rules and regulations, Series 8............. 34
103 Other rules................................. 131
104-199
[Reserved]
[[Page 7]]
PART 100_ADMINISTRATIVE REGULATIONS--Table of Contents
Subpart A_Employee Responsibilities and Conduct
Sec.
100.101 Cross--reference to financial disclosure requirements and other
conduct rules.
Subpart B_Cooperation in Audits and Investigations
100.201 Audits and investigations.
Subpart C--Employee Personal Property Loss Claims [Reserved]
Subpart D_Claims Under the Federal Tort Claims Act
100.401 Claims under the Federal Tort Claims Act for loss of or damage
to property or for personal injury or death.
Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities Conducted by the National Labor Relations Board
100.501 Purpose.
100.502 Application.
100.503 Definitions.
100.504-100.509 [Reserved]
100.510 Self-evaluation.
100.511 Notice.
100.512-100.529 [Reserved]
100.530 General prohibitions against discrimination.
100.531-100.539 [Reserved]
100.540 Employment.
100.541-100.548 [Reserved]
100.549 Program accessibility: Discrimination prohibited.
100.550 Program accessibility: Existing facilities.
100.551 Program accessibility: New construction and alterations.
100.552-100.559 [Reserved]
100.560 Communications.
100.561-100.569 [Reserved]
100.570 Compliance procedures.
100.571-100.599 [Reserved]
Subpart F_Debt Collection Procedures
100.601 Purpose and scope.
100.602 Definitions.
100.603 Debts that are covered.
100.604 Monetary limitations on NLRB's authority.
100.605 Information Collection Requirements: OMB Approval.
100.606 No private rights created.
100.607 Form of payment.
100.608 Subdivision of claims or debts.
100.609 Administrative collection of claims.
100.610 Written demand for payment.
100.611 Reporting claims or debts.
100.612 Disputed claims or debts.
100.613 Contracting for collection services.
100.614 Collection by administrative offset.
100.615 Authorities other than offset.
100.616 Payment collection.
100.617 Interest, penalties, and administrative costs.
100.618 Bankruptcy claims.
100.619 When a debt may be compromised.
100.620 Finality of a compromise.
100.621 When collection action may be terminated or suspended.
100.622 Termination of collection action.
100.623 Exception to termination.
100.624 Discharge of indebtedness; reporting requirements.
100.625 Referral of a claim to the Department of Justice.
Authority: Section 6, National Labor Relations Act, as amended (29
U.S.C. 141, 156).
Subpart A is also issued under 5 U.S.C. 7301.
Subpart B is also issued under the Inspector General Act of 1976, as
amended by the Inspector General Act Amendments of 1988, 5 U.S.C. ap3;
42 U.S.C. 2000e-16(a).
Subpart D is also issued under 28 U.S.C. 2672; 28 CFR part 14.
Subpart E is also issued under 29 U.S.C. 794.
Subpart F is also issued under 31 U.S.C. 3711 and 3716-3719, as
amended, 31 CFR part 285, 31 CFR chapter IX parts 900-904.
Subpart A_Employee Responsibilities and Conduct
Sec. 100.101 Cross-reference to financial disclosure requirements
and other conduct rules.
Employees of the National Labor Relations Board (NLRB) should refer
to the executive branch-wide Standards of Ethical Conduct at 5 CFR part
2635; the NLRB's regulations at 5 CFR part 7101, which supplement the
executive branch-wide standards; the employee responsibilities and
conduct regulations at 5 CFR part 735; and the executive branch
financial disclosure regulations at 5 CFR part 2634.
[62 FR 6448, Feb. 12, 1997]
[[Page 8]]
Subpart B_Cooperation in Audits and Investigations
Sec. 100.201 Audits and investigations.
(a) Employees shall cooperate fully with any audit or investigation
conducted by the Office of the Inspector General involving matters that
fall within the jurisdiction and authority of the Inspector General, as
defined in the Inspector General Act of 1978, as amended, or with any
audit or investigation conducted by any Agency official or department,
including, but not limited to, the Office of Equal Employment
Opportunity, involving matters that relate to or have an effect on the
official business of the Agency. Such cooperation shall include, among
other things, responding to requests for information, providing
statements under oath relating to such audits or investigations, and
affording access to Agency records and/or any other Agency materials in
an employee's possession.
(b) The obstruction of an audit or investigation, concealment of
information, intentional furnishing of false or misleading information,
refusal to provide information and/or answer questions, or refusal to
provide a statement under oath, by an employee to an auditor or
investigator pursuant to any audit or investigation as described in
paragraph (a) of this section, may result in disciplinary action against
an employee. However, nothing herein shall be construed to deny,
abridge, or otherwise restrict the rights, privileges, or other
entitlements or protections afforded to Agency employees.
[59 FR 37158, July 21, 1994]
Subpart C--Employee Personal Property Loss Claims [Reserved]
Subpart D_Claims Under the Federal Tort Claims Act
Sec. 100.401 Claims under the Federal Tort Claims Act for loss of or
damage to property or for personal injury or death.
(a) Scope of regulations. These regulations apply to administrative
claims filed under the Federal Tort Claims Act (28 U.S.C. 2672), as
amended, for money damages against the United States for damage to or
loss of property, or for personal injury or death, caused by the
negligent or wrongful act or omission of any employee of the National
Labor Relations Board acting within the scope of his or her office or
employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred. The regulations in this
part supplement the Department of Justice's regulations in 28 CFR part
14.
(b) Filing a claim. Claims may be submitted to the Associate General
Counsel, Division of Legal Counsel, Headquarters, National Labor
Relations Board, Washington, DC 20570 at any time within 2 years after
such claim has accrued. The current address for Headquarters can be
found at www.nlrb.gov. Such claim may be presented by a person specified
in 28 CFR 14.3. An executed Standard Form 95, Claim for Damage, Injury,
or Death, or written notification must be submitted and accompanied by
as much of the appropriate information specified in 28 CFR 14.4 as may
reasonably be obtained.
(c) Amendment of claim. A claim submitted in compliance with this
subpart may be amended by the claimant at any time prior to final action
by the National Labor Relations Board or prior to the exercise of the
claimant's option under 28 U.S.C. 2675(a). Amendments shall be submitted
in writing and signed by the claimant or his or her duly authorized
agent or legal representative. Upon the timely filing of an amendment to
a pending claim, the National Labor Relations Board shall have six
months to make a final disposition of the claim as amended and the
claimant's option under 28 U.S.C. 2675(a) shall not accrue until six
months after filing of an amendment.
(d) Action on claims. The Associate General Counsel, Division of
Legal Counsel, shall have the power to consider, ascertain, adjust,
determine, compromise, or settle any claim submitted in accordance with
paragraph (a) of this section. Any exercise of such power shall be in
accordance with 28 U.S.C. 2672 and 28 CFR part 1.
[[Page 9]]
(e) Legal review of claims. In accordance with 28 CFR 14.5, legal
review is required if the amount of a proposed settlement, compromise,
or award exceeds $5,000. Any exercise of such power shall be in
accordance with 28 U.S.C. 2672 and 28 CFR part 14.
(f) Payment of awards. Any award, compromise, or settlement in an
amount of $2,500 or less made pursuant to this action will be paid by
the Chief Financial Officer out of appropriations available to the
National Labor Relations Board. Payment of any award, compromise, or
settlement in an amount greater than $2,500 will be paid in accordance
with 28 CFR 14.10.
(g) Acceptance of payment constitutes release. Acceptance by a
claimant, his or her agent or legal representative of any award,
compromise, or settlement made pursuant to this part shall be final and
conclusive on the claimant, his or her agent or legal representative and
any other person on whose behalf or for whose benefit the claim has been
submitted, and shall constitute a complete release of any claims against
the United States, the National Labor Relations Board, and any employee
of the government whose act or omission gave rise to the claim.
[81 FR 19487, Apr. 5, 2016]
Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in
Programs or Activities Conducted by the National Labor Relations Board
Source: 53 FR 25884, 25885, July 8, 1988, unless otherwise noted.
Redesignated at 59 FR 37159, July 21, 1994.
Sec. 100.501 Purpose.
The purpose of this regulation is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
Sec. 100.502 Application.
This regulation (Sec. Sec. 100.501-100.570) applies to all programs
or activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.
[53 FR 25884, 25885, July 8, 1988. Redesignated at 59 FR 37159, July 21,
1994, and amended at 60 FR 32587, June 23, 1995]
Sec. 100.503 Definitions.
For purposes of this regulation, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic preservation programs means programs conducted by the
agency that
[[Page 10]]
have preservation of historic properties as a primary purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ``physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(3) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702(f), which is made applicable
to this regulation by Sec. 100.540.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this regulation, section 504 applies only to programs or
activities conducted by Executive agencies and not to federally assisted
programs.
Substantial impairment means a significant loss of the integrity of
finished
[[Page 11]]
materials, design quality, or special character resulting from a
permanent alteration.
[53 FR 25884, 25885, July 8, 1988. Redesignated at 59 FR 37159, July 21,
1994, and amended at 60 FR 32587, June 23, 1995]
Sec. Sec. 100.504-100.509 [Reserved]
Sec. 100.510 Self-evaluation.
(a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
Sec. 100.511 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this regulation and its
applicability to the programs or activities conducted by the agency, and
make such information available to them in such manner as the head of
the agency finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this regulation.
Sec. Sec. 100.512-100.529 [Reserved]
Sec. 100.530 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a
[[Page 12]]
program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this regulation.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Sec. Sec. 100.531-100.539 [Reserved]
Sec. 100.540 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subject to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
Sec. Sec. 100.541-100.548 [Reserved]
Sec. 100.549 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 100.550, no qualified
individual with handicaps shall, because the agency's facilities are
inaccessible to or unusable by individuals with handicaps, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
[53 FR 25884, 25885, July 8, 1988. Redesignated at 59 FR 37159, July 21,
1994, and amended at 60 FR 32587, June 23, 1995]
Sec. 100.550 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 100.550(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee
[[Page 13]]
after considering all agency resources available for use in the funding
and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with handicaps. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
Sec. 100.550(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to individuals
with handicaps. In cases where a physical alteration to an historic
property is not required because of Sec. 100.550(a) (2) or (3),
alternative methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by March 6, 1989, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
[53 FR 25884, 25885, July 8, 1988. Redesignated at 59 FR 37159, July 21,
1994, and amended at 60 FR 32587, June 23, 1995]
Sec. 100.551 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency
[[Page 14]]
shall be designed, constructed, or altered so as to be readily
accessible to and usable by individuals with handicaps. The definitions,
requirements, and standards of the Architectural Barriers Act (42 U.S.C.
4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to
buildings covered by this section.
Sec. Sec. 100.552-100.559 [Reserved]
Sec. 100.560 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 100.560 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with handicaps receive the benefits and
services of the program or activity.
[53 FR 25884, 25885, July 8, 1988. Redesignated at 59 FR 37159, July 21,
1994, and amended at 60 FR 32587, June 23, 1995]
Sec. Sec. 100.561-100.569 [Reserved]
Sec. 100.570 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Director of Administration shall be responsible for
coordinating implementation of this section. Complaints may be sent to
Director of Administration, National Labor Relations Board, 1099
Fourteenth Street NW., Washington, DC 20570.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180
[[Page 15]]
days of the alleged act of discrimination. The agency may extend this
time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 100.170(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
[53 FR 25884, 25885, July 8, 1988, as amended at 53 FR 25884, July 8,
1988. Redesignated and amended at 59 FR 37159, July 21, 1994]
Sec. Sec. 100.571-100.599 [Reserved]
Subpart F_Debt Collection Procedures
Source: 72 FR 40070, July 23, 2007, unless otherwise noted.
Sec. 100.601 Purpose and scope.
This part prescribes standards and procedures for officers and
employees of the National Labor Relations Board (NLRB) who are
responsible for the collection and disposition of certain debts owed to
the United States, as further defined below. The authority for this part
is the Federal Claims Collection Act of 1966; the Debt Collection
Improvement Act of 1996; 31 U.S.C. 3711 and 3716 through 3719, as
amended; The Federal Claims Collection Standards, 31 CFR chapter IX
parts 900-904; and Office of Management and Budget Circular A-129. The
activities covered include: the collection of claims of any amount;
compromising claims; suspending or terminating the collection of claims;
referring debts that are more than 180 days delinquent to the Department
of the Treasury for collection action; and the referral of debts of more
than $100,000 (exclusive of any interest and charges) to the Department
of Justice for litigation.
Sec. 100.602 Definitions.
For the purpose of this subpart, the following definitions will
apply:
Administrative Offset means withholding money payable by the United
States Government (including money payable by the United States
Government on behalf of a State Government) to, or held by the
Government for, a person to satisfy a debt the person owes the United
States Government.
Centralized offset means the offset of Federal payments through the
Treasury Offset Program to collect debts which creditor agencies have
certified pursuant to 31 U.S.C. 3716(c), 3720A(a) and applicable
regulations. The term
[[Page 16]]
``centralized offset'' includes the Treasury Offset Program's processing
of offsets of Federal payments disbursed by disbursing officials other
than the Department of the Treasury.
Claim or debt means an amount of money, funds, or property that has
been determined by an agency official to be owed to the United States by
a person, organization, or entity, except another Federal agency. For
the purposes of administrative offset under 31 U.S.C. 3716, the terms
claim and debt include an amount of money, funds, or property owed by a
person to a State (including past-due support being enforced by a
State), the District of Columbia, American Samoa, Guam, the United
States Virgin Islands, the Commonwealth of the Northern Mariana Islands,
or the Commonwealth of Puerto Rico.
Cross-servicing means that the Department of the Treasury or another
debt collection center is taking appropriate debt collection action on
behalf of one or more Federal agencies or a unit or sub-agency thereof.
Debtor means an individual, organization, group, association,
partnership, or corporation indebted to the United States, or the person
or entity with legal responsibility for assuming the debtor's
obligation.
Delinquent refers to the status of a debt and means a debt has not
been paid by the date specified in the initial written demand for
payment or applicable contractual agreement with the NLRB, unless other
satisfactory payment arrangements have been made by that date. If the
debtor fails to satisfy obligations under a payment agreement with the
NLRB after other payment arrangements have been made, the debt becomes a
delinquent debt.
Payment in full means payment of the total debt due the United
States, including any interest, penalty, and administrative costs of
collection assessed against the debtor.
Recoupment is a special method for adjusting debts arising under the
same transaction or occurrence. For example, obligations arising under
the same contract generally are subject to recoupment.
Sec. 100.603 Debts that are covered.
(a) The procedures covered by this part generally apply to claims
for payment or debts which
(1) Result from certain internal management activities of the NLRB;
or
(2) Are referred to the NLRB for collection.
(b) The procedures covered by this part do not apply to
(1) A debt arising from, or ancillary to, any action undertaken by
or on behalf of the NLRB or its General Counsel in furtherance of
efforts to ensure compliance with the National Labor Relations Board
Act, 29 U.S.C. 151, et seq., including but not limited to actions
involving the collection of monies owed for back pay and/or other
monetary remedies provided for in Board orders or ancillary court
proceedings. (Regulations concerning the collection of these types of
debts are found in 29 CFR part 102, subparts U and V.);
(2) A debt involving criminal actions of fraud, the presentation of
a false claim, or misrepresentation on the part of the debtor or any
other person having an interest in the claim;
(3) A debt based in whole or in part on conduct in violation of the
antitrust laws;
(4) A debt under the Internal Revenue Code of 1986;
(5) A debt between Federal agencies. Federal agencies should attempt
to resolve interagency claims by negotiation in accordance with
Executive Order 12146 (3 CFR, 1980 Comp., pp. 409-412);
(6) A debt once it becomes subject to salary offset under 5 U.S.C.
5514; or
(7) A debt involving bankruptcy which is covered by Title 11 of the
United States Code.
(c) Debts involving criminal actions of fraud, false claims,
misrepresentation, or which violate antitrust laws will be promptly
referred to the Department of Justice. Only the Department of Justice
has the authority to compromise, suspend, or terminate collection
activity on such debts. However, at its discretion, the Department of
Justice may return a debt to the NLRB for further handling.
[[Page 17]]
Sec. 100.604 Monetary limitations on NLRB's authority.
The NLRB's authority to compromise a debt or to suspend or terminate
collection action on a debt covered by these procedures is limited by 31
U.S.C. 3711(a) to claims that:
(a) Have not been referred to another Federal Agency for further
collection actions; and
(b) Do not exceed $100,000 (exclusive of any interest) or such
higher amount as the Attorney General shall from time to time prescribe
for purposes of compromise or suspension or termination of collection
activity.
Sec. 100.605 Information collection requirements: OMB approval.
This part contains no information collection requirements, and,
therefore, is not subject to the requirements of the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.)
Sec. 100.606 No private rights created.
(a) The failure of the NLRB to include in this part any provision of
the Federal Collections Claim Standards (FCCS), 31 CFR chapter IX parts
900-904, does not prevent the NLRB from applying these provisions.
(b) A debtor may not use the failure of the NLRB to comply with any
provision of this part or of the FCCS as a defense.
Sec. 100.607 Form of payment.
These procedures are directed primarily at the recovery of money or,
when a contractual basis exists, the NLRB may demand the return of
specific property or the performance of specific services.
Sec. 100.608 Subdivision of claims or debts.
A debt may not be subdivided to avoid the monetary ceiling
established by 31 U.S.C. 3711(a)(2) and 29 CFR 100.604.
Sec. 100.609 Administrative collection of claims.
The NLRB shall aggressively collect all claims or debts. These
collection activities will be undertaken promptly and follow up action
will be taken as appropriate in accordance with 31 CFR chapter IX Sec.
901.1.
Sec. 100.610 Written demand for payment.
(a) The NLRB will promptly make written demand upon the debtor for
payment of money or the return of specific property. The written demand
for payment will be consistent with the requirements of 31 CFR chapter
IX Sec. 901.2. The date by which payment is due to avoid any late
charges will be 60 days from the date that the demand letter is mailed
or hand-delivered.
(b) The failure to state in a letter of demand a matter described in
31 CFR chapter IX Sec. 901.2 is not a defense for a debtor and does not
prevent the NLRB from proceeding with respect to that matter.
(c) When necessary, to protect the Government's interest, written
demand may be preceded by other appropriate action, including immediate
referral for litigation. It may be appropriate to contact a debtor or
his representative or guarantor by other means (telephone, in person,
etc.) to discuss prompt payment, the debtor's ability to repay the debt,
and to inform the debtor of his rights and the affect of nonpayment or
delayed payment.
(d) When the NLRB learns that a bankruptcy petition has been filed
with respect to a debtor, the NLRB will cease collection action
immediately unless it has been determined that the automatic stay
imposed at the time of filing pursuant to 11 U.S.C. 362 has been lifted
or is no longer in effect.
Sec. 100.611 Reporting claims or debts.
(a) In addition to assessing interest, penalties, and administrative
costs pursuant to 31 CFR chapter IX Sec. 901.9, the NLRB may report a
debt that has been delinquent for 90 days to a consumer reporting agency
in accordance with the requirements of 31 U.S.C. 3711(e).
(b) The information the NLRB discloses to a consumer reporting
agency is limited to--
(1) Information necessary to establish the identity of the
individual debtor, including name, address, and taxpayer identification
number;
(2) The amount, status, and history of the debt; and
[[Page 18]]
(3) The NLRB activity under which the debt arose.
Sec. 100.612 Disputed claims or debts.
(a) A debtor who disputes a debt should provide the NLRB with an
explanation as to why the debt is incorrect within 60 days from the date
the initial demand letter was mailed or hand-delivered. The debtor may
support the explanation by affidavits, cancelled checks, or other
relevant evidence.
(b) If the debtor's arguments appear to have merit, the NLRB may
waive the interest period pursuant to 29 CFR 100.617(c) pending a final
determination of the existence or the amount of the debt.
(c) The NLRB may investigate the facts concerning the dispute and,
if it considers it necessary, arrange for a conference at which the
debtor may present evidence and any arguments in support of the debtor's
position.
Sec. 100.613 Contracting for collection services.
The NLRB may contract for collection services in order to recover
delinquent debts only if the debts are not subject to the DCIA
requirement to transfer claims or debts to Treasury for debt collection
services, e.g., claims or debts of less than 180 days delinquent.
However, the NLRB retains the authority to resolve disputes, compromise
claims, suspend or terminate collection action, and initiate enforced
collection through litigation. When appropriate, the NLRB shall contract
for collection services in accordance with guidance and standards
contained in 31 CFR chapter IX parts 900-904.
Sec. 100.614 Collection by administrative offset.
(a) Application. (1) The NLRB may administratively undertake
collection by centralized offset on each claim which is liquidated or
certain in amount in accordance with the guidance and standards in 31
CFR parts 900-904 and 5 U.S.C. 5514.
(2) This section does not apply to those debts described in 31 CFR
901.3(a)(2).
(3) Unless otherwise provided for by contract or law, debts or
payments that are not subject to administrative offset under 31 U.S.C.
3716 may be collected by administrative offset under the common law or
other applicable statutory authority.
(4) Generally, administrative offset of payments under the authority
of 31 U.S.C. 3716 may not be conducted more than 10 years after the
Government's right to collect the claim or debt first accrued.
(b) Mandatory centralized offset. (1) The NLRB is required to refer
past due legally enforceable, nontax debts that are over 180 days
delinquent to the Department of the Treasury for collection by
centralized administrative offset. A debt is legally enforceable if
there has been a final determination by the NLRB that the debt, in the
amount stated, is due and there are no legal bars to collection action.
Debts under this section will be referred and collected pursuant to
procedures in 31 CFR 901.3(b).
(c) NLRB administrative offset. The NLRB, in order to refer a
delinquent debt to the Department of the Treasury for administrative
offset, adopts the administrative offset procedures as prescribed by 31
CFR 901.3.
(d) Non-centralized administrative offset. Generally, non-
centralized administrative offsets are ad hoc case-by-case offsets that
the NLRB would conduct at its own discretion, internally or in
cooperation with the agency certifying or authorizing payments to the
debtor. Non-centralized administrative offset is used when centralized
administrative offset is not available or appropriate to collect past
due legally enforceable, nontax delinquent debts. In these cases, the
NLRB may make a request directly to a payment-authorizing agency to
offset a payment due a debtor to collect a delinquent debt. The NLRB
adopts the procedures in 31 CFR 901.3(c) so that it may request that the
Department of the Treasury or any other payment authorizing agency to
conduct a non-centralized administrative offset.
(e) Requests to OPM to offset a debtor's anticipated or future
benefit payments under the Civil Service Retirement and Disability Fund
and the Federal Employees Retirement System. Upon providing
[[Page 19]]
OPM written certification that a debtor has been afforded the procedures
provided for in this section, the NLRB will request that OPM offset a
debtor's anticipated or future benefit payments under the Civil Service
Retirement and Disability Fund (Fund) in accordance with regulations
codified at 5 CFR 831.1801-831.1808 and the Federal Employees Retirement
System (System) in accordance with regulations codified at 5 CFR
845.401-845.408. Upon receipt of a request, OPM will identify and
``flag'' a debtor's account in anticipation of the time when the debtor
requests or becomes eligible for payments from the Fund or System. This
will satisfy any requirement that offset be initiated prior to the
expiration of the time limitations referenced in 29 CFR 100.614(a)(4).
(f) Review requirements. For purposes of this section, whenever the
NLRB is required to afford a debtor a review within the Agency, the NLRB
shall provide the debtor with a reasonable opportunity for a review of
the record in accordance with 31 CFR 901.3(e). The NLRB will provide the
debtor with the reasonable opportunity for an oral hearing in accordance
with 31 CFR 285.11(f), when the debtor requests reconsideration of the
debt, and the NLRB determines that the question of the indebtedness
cannot be resolved by review of the written record, for example, when
the validity of the debt turns on an issue of credibility or veracity.
Sec. 100.615 Authorities other than offset.
(a) Administrative Wage Garnishment. The NLRB is authorized to
collect debts from a debtor's wages by means of administrative wage
garnishment in accordance with the requirements of 31 U.S.C. 3720D and
31 CFR 285.11. This section adopts and incorporates all of the
provisions of 31 CFR 285.11 concerning administrative wage garnishment,
including the hearing procedures described in 31 CFR 285.11(f). The NLRB
may use administrative wage garnishment to collect a delinquent debt
unless the debtor is making timely payments under an agreement to pay
the debt in installments.
(b) This section does not apply to Federal salary offset, the
process by which the NLRB collects debts from the salaries of Federal
employees.
Sec. 100.616 Payment collection.
(a) The NLRB shall make every effort to collect a claim in full
before it becomes delinquent, but will consider arranging for payment in
regular installments consistent with 31 CFR 901.8, if the debtor
furnishes satisfactory evidence that he is unable to pay the debt in one
lump sum. Except for a claim described in 5 U.S.C. 5514, all installment
payment arrangements must be in writing and require the payment of
interest, penalties, and other administrative costs. If possible, the
installment payments should be sufficient in size and frequency to
liquidate the debt in three years or less.
(b) If a debt is paid in one lump sum after it becomes delinquent,
the NLRB shall impose charges for interest, penalties, and
administrative costs as specified in 31 CFR 901.9.
(c) Payment of a debt is made by check, electronic funds transfer,
draft, or money order payable to the National Labor Relations Board.
Payment should be made to the National Labor Relations Board, Finance
Branch, 1099 14th Street NW., Washington, DC 20570, unless payment is--
(1) Made pursuant to arrangements with the Department of Justice;
(2) Ordered by a Court of the United States; or
(3) Otherwise directed in any other part of this chapter.
Sec. 100.617 Interest, penalties, and administrative costs.
(a) Pursuant to 31 U.S.C. 3717, the NLRB shall assess interest,
penalties, and administrative costs on debts owed to the United States
Government. Interest, penalties, and administrative costs will be
assessed in accordance with the provisions contained in 31 CFR 901.9.
(b) The NLRB shall waive collection of interest on a debt or any
portion of the debt which is paid in full within 30 days after the date
on which the interest began to accrue.
(c) The NLRB may waive interest during a period a disputed debt is
under investigation or review by the NLRB. However, this additional
waiver is not
[[Page 20]]
automatic and must be requested before the expiration of the initial 30-
day waiver period. The NLRB may grant the additional waiver only if it
finds merit in the explanation the debtor has submitted.
(d) The NLRB may waive collection of interest, penalties, and
administrative costs if it finds that one or more of the following
conditions exist:
(1) The debtor is unable to pay any significant sum toward the debt
within a reasonable period of time;
(2) Collection of interest, penalties, and administrative costs will
jeopardize collection of the principal of the debt;
(3) The NLRB is unable to enforce collection in full within a
reasonable period of time by enforced collection proceedings; or
(4) Collection is not in the best interest of the United States,
including when an administrative offset or installment agreement is in
effect.
(e) The NLRB is authorized to impose interest and related charges on
debts not subject to 31 U.S.C. 3717, in accordance with common law.
Sec. 100.618 Bankruptcy claims.
When the NLRB learns that a bankruptcy petition has been filed by a
debtor, before proceeding with further collection action, the NLRB will
immediately seek legal advice from the NLRB's Office of Special Counsel
concerning the impact of the Bankruptcy Code on any pending or
contemplated collection activities. After seeking legal advice from the
NLRB's Office of Special Counsel, the NLRB will take any necessary
action in accordance with the provisions of 31 CFR 901.2(h).
Sec. 100.619 When a debt may be compromised.
The NLRB may compromise a debt not in excess of the monetary
limitation in accordance with 31 CFR part 902 if it has not been
referred to the Department of Justice for litigation.
Sec. 100.620 Finality of a compromise.
An offer of compromise must be in writing and signed by the debtor.
An offer of compromise which is accepted by the NLRB is final and
conclusive on the debtor and on all officials, agencies, and courts of
the United States, unless obtained by fraud, misrepresentation, the
presentation of a false claim, or mutual mistake of fact.
Sec. 100.621 When collection action may be terminated or suspended.
The NLRB may suspend or terminate collection action on a claim not
in excess of the monetary limitation of $100,000 or such other amount as
the Attorney General may direct, exclusive of interest, penalties, and
administrative costs, after deducting the amount of partial payments or
collections, if any, in accordance with the standards and reasons set
forth in 31 CFR part 903.
Sec. 100.622 Termination of collection action.
Before terminating collection activity, the NLRB will have pursued
all appropriate means of collection and determined, based upon results
of the collection activity, that the debt is uncollectible. Termination
of collection activity ceases active collection of the debt. The
termination of collection activity does not preclude the NLRB from
retaining a record of the account for the purposes stated in 31 CFR
903.3(b) and (c).
Sec. 100.623 Exception to termination.
If a debt meets the exceptions described in 31 CFR 903.4, the NLRB
may refer it for litigation even though termination of collection
activity may otherwise be appropriate.
Sec. 100.624 Discharge of indebtedness; reporting requirements.
(a) Before discharging a delinquent debt (also referred to as close-
out of a debt), the NLRB shall take all appropriate steps to collect the
debt in accordance with 31 U.S.C. 3711(g), including, as applicable,
administrative offset, tax refund offset, Federal salary offset,
referral to Treasury or Treasury-designated collection centers or
private collection contractors, credit bureau reporting, wage
garnishment, litigation, and foreclosure. Discharge of indebtedness is
distinct from termination or suspension of collection activity and is
governed by the Internal
[[Page 21]]
Revenue Code. When the NLRB determines that it will discharge a debt, it
will do so in accordance with the provisions of 31 CFR 903.5.
(b) [Reserved]
Sec. 100.625 Referral of a claim to the Department of Justice.
The NLRB shall promptly refer debts that are subject to aggressive
collection activity and that cannot be compromised, or debts on which
collection activity cannot be suspended or terminated, to the Department
of Justice for litigation. Debts shall be referred as early as possible,
consistent with the standards contained if 31 CFR parts 900-904 and, in
any event, well within the period for initiating timely lawsuits against
the debtors. The NLRB will make every effort to refer delinquent debts
to the Department of Justice within one year of the date such debts
became delinquent.
PART 101_STATEMENTS OF PROCEDURES--Table of Contents
Subpart A_General Statement
Sec.
101.1 General statement.
Subpart B_Unfair Labor Practice Cases Under Section 10 (a) to (i) of the
Act and Telegraph Merger Act Cases
101.2 Initiation of unfair labor practice cases.
101.3 [Reserved]
101.4 Investigation of charges.
101.5 Withdrawal of charges.
101.6 Dismissal of charges and appeals to the General Counsel.
101.7 Settlements.
101.8 Complaints.
101.9 Settlement after issuance of complaint.
101.10 Hearings.
101.11 Administrative law judge's decision.
101.12 Board decision and order.
101.13 Compliance with Board decision and order.
101.14 Judicial review of Board decision and order.
101.15 Compliance with court judgment.
101.16 Backpay proceedings.
Subpart C [Reserved]
Subpart D_Unfair Labor Practice and Representation Cases Under Sections
8(b)(7) and 9(c) of the Act
101.22 Initiation and investigation of a case under section 8(b)(7).
101.23 Initiation and investigation of a petition in connection with a
case under section 8(b)(7).
101.24 Final disposition of a charge which has been held pending
investigation of the petition.
101.25 Appeal from the dismissal of a petition, or from the refusal to
process it under the expedited procedure.
Subpart E_Referendum Cases Under Section 9(e) (1) and (2) of the Act
101.26 Initiation of rescission of authority cases.
101.27 Investigation of petition; withdrawals and dismissals.
101.28 Consent agreements providing for election.
101.29 Procedure respecting election conducted without hearing.
101.30 Formal hearing and procedure respecting election conducted after
hearing.
Subpart F_Jurisdictional Dispute Cases Under Section 10(k) of the Act
101.31 Initiation of proceedings to hear and determine jurisdictional
disputes under section 10(k).
101.32 Investigation of charges; withdrawal of charges; dismissal of
charges and appeals to Board.
101.33 Initiation of formal action; settlement.
101.34 Hearing.
101.35 Procedure before the Board.
101.36 Compliance with determination; further proceedings.
Subpart G_Procedure Under Section 10 (j) and (l) of the Act
101.37 Application for temporary relief or restraining orders.
101.38 Change of circumstances.
Subpart H_Advisory Opinions and Declaratory Orders Regarding Board
Jurisdiction
101.39 Initiation of advisory opinion case.
101.40 Proceedings following the filing of the petition.
101.41 Informal procedures for obtaining opinions on jurisdictional
questions.
101.42 Procedures for obtaining declaratory orders of the Board.
[[Page 22]]
101.43 Proceedings following the filing of the petition.
Authority: Sec. 6 of the National Labor Relations Act, as amended
(29 U.S.C. 151, 156), and sec. 552(a) of the Administrative Procedure
Act (5 U.S.C. 552(a)). Section 101.14 also issued under sec. 2112(a)(1)
of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).
Source: 52 FR 23968, June 26, 1987, unless otherwise noted.
Subpart A_General Statement
Sec. 101.1 General statement.
The following statements of the general course and method by which
the Board's functions are channeled and determined are issued and
published pursuant to 5 U.S.C. 552(a)(1)(B).
Subpart B_Unfair Labor Practice Cases Under Section 10 (a) to (i) of the
Act and Telegraph Merger Act Cases
Sec. 101.2 Initiation of unfair labor practice cases.
The investigation of an alleged violation of the National Labor
Relations Act is initiated by the filing of a charge, which must be in
writing and signed, and must either be notarized or must contain a
declaration by the person signing it, under the penalties of the
Criminal Code, that its contents are true and correct to the best of the
persons' knowledge and belief. The charge is filed with the Regional
Director for the Region in which the alleged violations have occurred or
are occurring. A blank form for filing such charge is supplied by the
Regional Office upon request. The charge contains the name and address
of the person against whom the charge is made and a statement of the
facts constituting the alleged unfair labor practices.
Sec. 101.3 [Reserved]
Sec. 101.4 Investigation of charges.
When the charge is received in the Regional Office it is filed,
docketed, and assigned a case number. The Regional Director may cause a
copy of the charge to be served on the person against whom the charge is
made, but timely service of a copy of the charge within the meaning of
the proviso to section 10(b) of the Act is the exclusive responsibility
of the charging party and not of the Regional Director. The Regional
Director requests the person filing the charge to submit promptly
evidence in its support. As part of the investigation hereinafter
mentioned, the person against whom the charge is filed, hereinafter
called the respondent, is asked to submit a statement of position in
respect to the allegations. The case is assigned for investigation to a
member of the field staff, who interviews representatives of the parties
and other persons who have knowledge as to the charge, as is deemed
necessary. In the investigation and in all other stages of the
proceedings, charges alleging violations of section 8(b)(4) (A), (B),
and (C), charges alleging violations of section 8(b)(4)(D) in which it
is deemed appropriate to seek injunctive relief under section 10(1) of
the Act, and charges alleging violations of section 8(b)(7) or 8(e) are
given priority over all other cases in the office in which they are
pending except cases of like character; and charges alleging violations
of sections 8(a)(3) or 8(b)(2) are given priority over all other cases
except cases of like character and cases under section 10(1) of the Act.
The Regional Director may exercise discretion to dispense with any
portion of the investigation described in this section as appears
necessary in consideration of such factors as the amount of time
necessary to complete a full investigation, the nature of the
proceeding, and the public interest. After investigation, the case may
be disposed of through informal methods such as withdrawal, dismissal,
or settlement; or the case may necessitate formal methods of
disposition. Some of the informal methods of handling unfair labor
practice cases will be stated first.
Sec. 101.5 Withdrawal of charges.
If investigation reveals that there has been no violation of the
National Labor Relations Act or the evidence is insufficient to
substantiate the charge, the Regional Director recommends withdrawal of
the charge by the person who filed. Withdrawal may also be requested on
the initiative of the complainant. If the complainant accepts the
recommendation of the Regional
[[Page 23]]
Director or requests withdrawal, the respondent is immediately notified
of the withdrawal of the charge.
Sec. 101.6 Dismissal of charges and appeals to the General Counsel.
If the complainant refuses to withdraw the charge as recommended,
the Regional Director dismisses the charge. The Regional Director
thereupon informs the parties of this section, together with a simple
statement of the grounds therefor, and the complainant's right of appeal
to the General Counsel in Washington, DC, within 14 days. If the
complainant appeals to the General Counsel, the entire file in the case
is sent to Washington, DC, where the case is fully reviewed by the
General Counsel with staff assistance. Oral presentation of the appeal
issues may be permitted a party on timely written request, in which
event the other parties are notified and afforded a like opportunity at
another appropriate time. Following such review, the General Counsel may
sustain the Regional Director's dismissal, stating the grounds of
affirmance, or may direct the Regional Director to take further action.
Sec. 101.7 Settlements.
Before any complaint is issued or other formal action taken, the
Regional Director affords an opportunity to all parties for the
submission and consideration of facts, argument, offers of settlement,
or proposals of adjustment, except where time, the nature of the
proceeding, and the public interest do not permit. Normally prehearing
conferences are held, the principal purpose of which is to discuss and
explore such submissions and proposals of adjustment. The Regional
Office provides Board-prepared forms for such settlment agreements, as
well as printed notices for posting by the respondent. These agreements,
which are subject to the approval of the Regional Director, provide for
an appeal to the General Counsel, as described in Sec. 101.6, by a
complainant who will not join in a settlement or adjustment deemed
adequate by the Regional Director. Proof of compliance is obtained by
the Regional Director before the case is closed. If the respondent fails
to perform the obligations under the informal agreement, the Regional
Director may determine to institute formal proceedings.
Sec. 101.8 Complaints.
If the charge appears to have merit and efforts to dispose of it by
informal adjustment are unsuccessful, the Regional Director institutes
formal action by issuance of a complaint and notice of hearing. In
certain types of cases, involving novel and complex issues, the Regional
Director, at the discretion of the General Counsel, must submit the case
for advice from the General Counsel before issuing a complaint. The
complaint, which is served on all parties, sets forth the facts upon
which the Board bases its jurisidiction and the facts relating to the
alleged violations of law by the respondent. The respondent must file an
answer to the complaint within 14 days of its receipt, setting forth a
statement of its defense.
Sec. 101.9 Settlement after issuance of complaint.
(a) Even though formal proceedings have begun, the parties again
have full opportunity at every stage to dispose of the case by amicable
adjustment and in compliance with the law. Thus, after the complaint has
been issued and a hearing scheduled or commenced, the attorney in charge
of the case and the Regional Director afford all parties every
opportunity for the submission and consideration of facts, argument,
offers of settlement, or proposals of adjustment, except where time, the
nature of the proceeding, and the public interest do not permit.
(b)(1) After the issuance of a complaint, the Agency favors a formal
settlement agreement, which is subject to the approval of the Board in
Washington, DC. In such an agreement, the parties agree to waive their
right to hearing and agree further that the Board may issue an order
requiring the respondent to take action appropriate to the terms of the
settlement. Ordinarily the formal settlement agreement also contains the
respondent's consent to the Board's application for
[[Page 24]]
the entry of a judgment by the appropriate circuit court of appeals
enforcing the Board's order.
(2) In some cases, however, the Regional Director, who has authority
to withdraw the complaint before the hearing (Sec. 102.18), may
conclude that an informal settlement agreement of the type described in
Sec. 101.7 is appropriate. Such agreement is not subject to approval by
the Board and does not provide for a Board order. It provides for the
withdrawal of the complaint.
(c)(1) If after issuance of a complaint but before opening of the
hearing, the charging party will not join in a settlement tentatively
agreed upon by the Regional Director, the respondent, and any other
parties whose consent may be required, the Regional Director serves a
copy of the proposed settlement agreement on the charging party with a
brief written statement of the reasons for proposing its approval.
Within 7 days after service of these documents, the charging party may
file with the Regional Director a written statement of any objections to
the proposed settlement. Such objections will be considered by the
Regional Director in determining whether to approve the proposed
settlement. If the settlement is approved by the Regional Director
notwithstanding the objections, the charging party is so informed and
provided a brief written statement of the reasons for the approval.
(2) If the settlement agreement approved by the Regional Director is
a formal one, providing for the entry of a Board order, the settlement
agreement together with the charging party's objections and the Regional
Director's written statements are submitted to Washington, DC, where
they are reviewed by the General Counsel. If the General Counsel decides
to approve the settlement agreement, the charging party is so informed
and the agreement and accompanying documents are submitted to the Board,
upon whose approval the settlement is contingent. Within 7 days after
service of notice of submission of the settlement agreement to the
Board, the charging party may file with the Board in Washington, DC, a
further statement in support of objections to the settlement agreement.
(3) If the settlement agreement approved by the Regional Director is
an informal one, providing for the withdrawal of the complaint, the
charging party may appeal the Regional Director's action to the General
Counsel, as provided in Sec. 102.19 of the Board's Rules and
Regulations.
(d)(1) If the settlement occurs after the opening of the hearing and
before issuance of the administrative law judge's decision and there is
an all-party informal settlement, the request for withdrawal of the
complaint must be submitted to the administrative law judge for
approval. If the all-party settlement is a formal one, final approval
must come from the Board. If any party will not join in the settlement
agreed to by the other parties, the administrative law judge will give
such party an opportunity to state on the record or in writing its
reasons for opposing the settlement.
(2) If the administrative law judge decides to accept or reject the
proposed settlement, any party aggrieved by such ruling may ask for
leave to appeal to the Board as provided in Sec. 102.26.
(e)(1) In the event the respondent fails to comply with the terms of
a settlement stipulation, upon which a Board order and court judgment
are based, the Board may petition the court to adjudge the respondent in
contempt. If the respondent refuses to comply with the terms of a
settlement stipulation providing solely for the entry of a Board order,
the Board may petition the court for enforcement of its order pursuant
to section 10 of the National Labor Relations Act.
(2) In the event the respondent fails to comply with the terms of an
informal settlement agreement, the Regional Director may set the
agreement aside and institute further proceedings.
Sec. 101.10 Hearings.
(a) Except in extraordinary situations the hearing is open to the
public and usually conducted in the Region where the charge originated.
A duly designated administrative law judge presides over the hearing.
The Government's case is conducted by an attorney attached to the
Board's Regional Office, who has the responsibility of presenting the
evidence in support of
[[Page 25]]
the complaint. The rules of evidence applicable in the district courts
of the United States under the Rules of Civil Procedure adopted by the
Supreme Court are, so far as practicable, controlling. Counsel for the
General Counsel, all parties to the proceeding, and the administrative
law judge have the power to call, examine, and cross-examine witnesses
and to introduce evidence into the record. They may also submit briefs,
engage in oral argument, and submit proposed findings and conclusions to
the administrative law judge. The attendance and testimony of witnesses
and the production of evidence material to any matter under
investigation may be compelled by subpoena.
(b) The functions of all administrative law judges and other Board
agents or employees participating in decisions in conformity with
section 8 of the Administrative Procedure Act (5 U.S.C. 557) are
conducted in an impartial manner and any such administrative law judge,
agent, or employee may at any time withdraw if he or she deems himself
or herself disqualified because of bias or prejudice. The Board's
attorney has the burden of proof of violations of section 8 of the
National Labor Relations Act and section 222(f) of the Telegraph Merger
Act. In connection with hearings subject to the provisions of section 7
of the Administrative Procedure Act (5 U.S.C. 556):
(1) No sanction is imposed or rule or order issued except upon
consideration of the whole record or such portions thereof as may be
cited by any party and as supported by and in accordance with the
preponderance of the reliable, probative, and substantial evidence.
(2) Every party has the right to present its case or defense by oral
or documentary evidence, to submit rebuttal evidence, and to conduct
such cross-examination as may be required for a full and true disclosure
of the facts.
(3) Where any decision rests on official notice of a material fact
not appearing in the evidence in the record, any party is on timely
request afforded a reasonable opportunity to show the contrary.
(4) Subject to the approval of the administrative law judge, all
parties to the proceeding voluntarily may enter into a stipulation
dispensing with a verbatim written transcript of record of the oral
testimony adduced at the hearing and providing for the waiver by the
respective parties of their right to file with the Board exceptions to
the findings of fact (but not to conclusions of law or recommended
orders) in the administrative law judge's decision.
Sec. 101.11 Administrative law judge's decision.
(a) At the conclusion of the hearing the administrative law judge
prepares a decision stating findings of fact and conclusions, as well as
the reasons for the determinations on all material issues, and making
recommendations as to action which should be taken in the case. The
administrative law judge may recommend dismissal or sustain the
complaint, in whole or in part, and recommend that the respondent cease
and desist from the unlawful acts found and take action to remedy their
effects.
(b) The administrative law judge's decision is filed with the Board
in Washington, DC, and copies are simultaneously served on each of the
parties. At the same time the Board, through its Executive Secretary,
issues and serves on each of the parties an order transferring the case
to the Board. The parties may accept and comply with the administrative
law judge's recommended order, which, in the absence of exceptions,
shall become the order of the Board. Or, the parties or counsel for the
Board may file exceptions to the administrative law judge's decision
with the Board. Whenever any party files exceptions, any other party may
file an answering brief limited to questions raised in the exceptions
and/or may file cross-exceptions relating to any portion of the
administrative law judge's decision. Cross-exceptions may be filed only
by a party who has not previously filed exceptions. Whenever any party
files cross-exceptions, any other party may file an answering brief to
the cross-exceptions. The parties may request permission to appear and
argue orally before the Board in Washington, DC. They may also submit
proposed findings and conclusions to the Board.
[[Page 26]]
Sec. 101.12 Board decision and order.
(a) If any party files exceptions to the administrative law judge's
decision, the Board, with the assistance of the staff counsel to each
Board Member who function in much the same manner as law clerks do for
judges, reviews the entire record, including the administrative law
judge's decision and recommendations, the exceptions thereto, the
complete transcript of evidence, and the exhibits, briefs, and
arguments. The Board does not consult with members of the administrative
law judge's staff of the division of judges or with any agent of the
General Counsel in its deliberations. It then issues its decision and
order in which it may adopt, modify, or reject the findings and
recommendations of the administrative law judge. The decision and order
contains detailed findings of fact, conclusions of law, and basic
reasons for decision on all material issues raised, and an order either
dismissing the complaint in whole or in part or requiring the respondent
to cease and desist from its unlawful practices and to take appropriate
affirmative action.
(b) If no exceptions are filed, the administrative law judge's
decision and recommended order automatically become the decision and
order of the Board pursuant to section 10(c) of the Act. All objections
and exceptions, whether or not previously made during or after the
hearing, are deemed waived for all purposes.
Sec. 101.13 Compliance with Board decision and order.
(a) Shortly after the Board's decision and order is issued the
Director of the Regional Office in which the charge was filed
communicates with the respondent for the purpose of obtaining
compliance. Conferences may be held to arrange the details necessary for
compliance with the terms of the order.
(b) If the respondent effects full compliance with the terms of the
order, the Regional Director submits a report to that effect to
Washington, DC, after which the case may be closed. Despite compliance,
however, the Board's order is a continuing one; therefore, the closing
of a case on compliance is necessarily conditioned upon the continued
observance of that order; and in some cases it is deemed desirable,
notwithstanding compliance, to implement the order with an enforcing
court judgment. Subsequent violations of the order may become the basis
of further proceedings.
Sec. 101.14 Judicial review of Board decision and order.
If the respondent does not comply with the Board's order, or the
Board deems it desirable to implement the order with a court judgment,
the Board may petition the appropriate Federal court for enforcement.
Or, the respondent or any person aggrieved by a final order of the Board
may petition the circuit court of appeals to review and set aside the
Board's order. If a petition for review is filed, the respondent or
aggrieved person must ensure that the Board receives, by service upon
its Deputy Associate General Counsel of the Appellate Court Branch, a
court-stamped copy of the petition with the date of filing. Upon such
review or enforcement proceedings, the court reviews the record and the
Board's findings and order and sustains them if they are in accordance
with the requirements of law. The court may enforce, modify, or set
aside in whole or in part the Board's findings and order, or it may
remand the case to the Board for further proceedings as directed by the
court. Following the court's judgment, either the Government or the
private party may petition the Supreme Court for review upon writ of
certiorari. Such applications for review to the Supreme Court are
handled by the Board through the Solicitor General of the United States.
[53 FR 24440, June 29, 1988]
Sec. 101.15 Compliance with court judgment.
After a Board order has been enforced by a court judgment, the Board
has the responsibility of obtaining compliance with that judgment.
Investigation is made by the Regional Office of the respondent's efforts
to comply. If it finds that the respondent has failed to live up to the
terms of the court's judgment, the General Counsel may, on behalf of the
Board, petition the court to hold the respondent in contempt of
[[Page 27]]
court. The court may order immediate remedial action and impose
sanctions and penalties.
Sec. 101.16 Backpay proceedings.
(a) After a Board order directing the payment of backpay has been
issued or after enforcement of such order by a court judgment, if
informal efforts to dispose of the matter prove unsuccessful, the
Regional Director then has discretion to issue a ``backpay
specification'' in the name of the Board and a notice of hearing before
an administrative law judge, both of which are served on the parties
involved. The specification sets forth computations showing gross and
net backpay due and any other pertinent information. The respondent must
file an answer within 21 days of the receipt of the specification,
setting forth a particularized statement of its defense.
(b) In the alternative, the Regional Director, under the
circumstances specified above, may issue and serve on the parties a
notice of hearing only, without a specification. Such notice contains,
in addition to the time and place of hearing before an administrative
law judge, a brief statement of the matters in controversy.
(c) The procedure before the administrative law judge or the Board,
whether initiated by the ``backpay specification'' or by notice of
hearing without backpay specification, is substantially the same as that
described in Sec. Sec. 101.10 to 101.14, inclusive.
Subpart C [Reserved]
Subpart D_Unfair Labor Practice and Representation Cases Under Sections
8(b)(7) and 9(c) of the Act
Sec. 101.22 Initiation and investigation of a case under section 8(b)(7).
(a) The investigation of an alleged violation of section 8(b)(7) of
the Act is initiated by the filing of a charge. The manner of filing
such charge and the contents thereof are the same as described in Sec.
101.2. In some cases, at the time of the investigation of the charge,
there may be pending a representation petition involving the employees
of the employer named in the charge. In those cases, the results of the
investigation of the charge will determine the cause of the petition.
(b) The investigation of the charge is conducted in accordance with
the provisions of Sec. 101.4, insofar as they are applicable. If the
investigation reveals that there is merit in the charge, a complaint is
issued as described in Sec. 101.8, and an application is made for an
injunction under section 10(1) of the Act, as described in Sec. 101.37.
If the investigation reveals that there is no merit in the charge, the
Regional Director, absent a withdrawal of the charge, dismisses it,
subject to appeal to the General Counsel. However, if the investigation
reveals that issuance of a complaint may be warranted but for the
pendency of a representation petition involving the employees of the
employer named in the charge, action on the charge is suspended pending
the investigation of the petition as provided in Sec. 101.23.
Sec. 101.23 Initiation and investigation of a petition in connection
with a case under section 8(b)(7).
(a) A representation petition \1\ involving the employees of the
employer named in the charge is handled under an expedited procedure
when the investigation of the charge has revealed that:
---------------------------------------------------------------------------
\1\ The manner of filing of such petition and the contents thereof
are the same as described in 29 CFR 102.60 and 102.61 and the statement
of the general course of proceedings under Section 9(c) of the Act
published in the Federal Register, insofar as they are applicable,
except that the petitioner is not required to allege that a claim was
made on the employer for recognition or that the union represents a
substantial number of employees.
---------------------------------------------------------------------------
(1) The employer's operations affect commerce within the meaning of
the Act;
(2) Picketing of the employer is being conducted for an object
proscribed by section 8(b)(7) of the Act;
(3) Subparagraph (C) of that section of the Act is applicable to the
picketing; and
(4) The petition has been filed within a reasonable period of time
not to exceed 30 days from the commencement
[[Page 28]]
of the picketing. In these circumstances, the member of the regional
director's staff to whom the matter has been assigned investigates the
petition to ascertain further: the unit appropriate for collective
bargaining; and whether an election in that unit would effectuate the
policies of the Act.
(b) If, based on such investigation, the regional director
determines that an election is warranted, the director may, without a
prior hearing, direct that an election be held in an appropriate unit of
employees. Any party aggrieved may file a request with the Board for
special permission to appeal that action to the Board, but such review,
if granted, will not, unless otherwise ordered by the Board, stay the
proceeding. If it is determined that an election is not warranted, the
director dismisses the petition or makes other disposition of the
matter. Should the regional director conclude that an election is
warranted, the director fixes the basis of eligibility of voters and the
place, date, and hours of balloting. The mechanics of arranging the
balloting, the other procedures for the conduct of the election, and the
postelection proceedings are the same, insofar as appropriate, as those
described in 29 CFR 102.69 and the statement of the general course of
proceedings under Section 9(c) of the Act published in the Federal
Register, except that the regional director's rulings on any objections
to the conduct of the election or challenged ballots are final and
binding unless the Board, on an application by one of the parties,
grants such party special permission to appeal from the regional
director's rulings. The party requesting such review by the Board must
do so promptly, in writing, and state briefly the grounds relied on.
Such party must also immediately serve a copy on the other parties,
including the regional director. Neither the request for review by the
Board nor the Board's grant of such review operates as a stay of any
action taken by the regional director, unless specifically so ordered by
the Board. If the Board grants permission to appeal, and it appears to
the Board that substantial and material factual issues have been
presented with respect to the objections to the conduct of the election
or challenged ballots, it may order that a hearing be held on such
issues or take other appropriate action.
(c) If the regional director believes, after preliminary
investigation of the petition, that there are substantial issues which
require determination before an election may be held, the director may
order a hearing on the issues. This hearing is followed by regional
director decision and direction of election, or other disposition. The
procedures to be used in connection with such hearing and posthearing
proceedings are the same, insofar as they are applicable, as those
described in 29 CFR 102.63, 102.64, 102.65, 102.66, 102.67, 102.68, and
102.69, and the statement of the general course.
(d) Should the parties so desire, they may, with the approval of the
regional director, resolve the issues as to the unit, the conduct of the
balloting, and related matters pursuant to informal consent procedures,
as described in 29 CFR 102.62(a) and the statement of the general
course.
(e) If a petition has been filed which does not meet the
requirements for processing under the expedited procedures, the regional
director may process it under the procedures set forth in subpart C of
29 CFR part 102 and the statement of the general course.
[79 FR 74476, Dec. 15, 2014]
Sec. 101.24 Final disposition of a charge which has been held pending
investigation of the petition.
(a) Upon the determination that the issuance of a direction of
election is warranted on the petition, the Regional Director, absent
withdrawal of the charge, dismisses it subject to an appeal to the
General Counsel in Washington, DC.
(b) If, however, the petition is dismissed or withdrawn, the
investigation of the charge is resumed, and the appropriate steps
described in Sec. 101.22 are taken with respect to it.
[[Page 29]]
Sec. 101.25 Appeal from the dismissal of a petition, or from the refusal
to process it under the expedited procedure.
If it is determined after investigation of the representation
petition that further proceedings based thereon are not warranted, the
regional director, absent withdrawal of the petition, dismisses it,
stating the grounds therefor. If it is determined that the petition does
not meet the requirements for processing under the expedited procedure,
the regional director advises the petitioner of the determination to
process the petition under the procedures described in subpart C of 29
CFR part 102 and the statement of the general course. In either event,
the regional director informs all the parties of such action, and such
action is final, although the Board may grant an aggrieved party
permission to appeal from the regional director's action. Such party
must request such review promptly, in writing, and state briefly the
grounds relied on. Such party must also immediately serve a copy on the
other parties, including the regional director. Neither the request for
review by the Board, nor the Board's grant of such review, operates as a
stay of the action taken by the regional director, unless specifically
so ordered by the Board.
[79 FR 74476, Dec. 15, 2014]
Subpart E_Referendum Cases Under Section 9(e) (1) and (2) of the Act
Sec. 101.26 Initiation of rescission of authority cases.
The investigation of the question as to whether the authority of a
labor organization to make an agreement requiring membership in a labor
organization as a condition of employment is to be rescinded is
initiated by the filing of a petition by an employee or group of
employees on behalf of 30 percent or more of the employees in a
bargaining unit covered by an agreement between their employer and a
labor organization requiring membership in such labor organization. The
petition must be in writing and signed, and either must be notarized or
must contain a declaration by the person signing it, under the penalties
of the Criminal Code, that its contents are true and correct to the best
of his knowledge and belief. It is filed with the regional director for
the Region in which the alleged appropriate bargaining unit exists or,
if the bargaining unit exists in two or more Regions, with the regional
director for any of such Regions. The blank form, which is supplied by
the Regional Office upon request or is available online, provides, among
other things, for a description of the bargaining unit covered by the
agreement, the approximate number of employees involved, the names of
any other labor organizations which claim to represent the employees,
the petitioner's position on the type, date(s), time(s), and location(s)
of the election sought, and the name of, and contact information for,
the individual who will serve as the petitioner's representative. The
petition may be filed by facsimile or electronically. The petitioner
must supply with the petition evidence of authorization from the
employees.
[79 FR 74476, Dec. 15, 2014]
Sec. 101.27 Investigation of petition; withdrawals and dismissals.
(a) Upon receipt of the petition in the Regional Office, it is
filed, docketed, and assigned to a member of the staff, usually a field
examiner, for investigation. The field examiner conducts an
investigation to ascertain:
(1) Whether the employer's operations affect commerce within the
meaning of the Act,
(2) Whether there is in effect an agreement requiring as a condition
of employment membership in a labor organization,
(3) Whether the petitioner has been authorized by at least 30
percent of the employees to file such a petition, and
(4) Whether an election would effectuate the policies of the Act by
providing for a free expression of choice by the employees.
The evidence of designation submitted by the petitioner, usually in the
form of cards signed by individual employees authorizing the filing of
such a petition, is checked to determine the proportion of employees who
desire rescission.
[[Page 30]]
(b) The petitioner may on its own initiative request the withdrawal
of the petition if the investigation discloses that an election is
inappropriate, because, among other possible reasons, the petitioner's
card-showing is insufficient to meet the 30-percent statutory
requirement referred to in subsection (a) of this section.
(c) For the same or similar reasons the Regional Director may
request the petitioner to withdraw its petition. If the petitioner,
despite the Regional Director's recommendation, refuses to withdraw the
petition, the Regional Director then dismisses the petition, stating the
grounds for his dismissal and informing the petitioner of the right of
appeal to the Board in Washington, DC. The petitioner may within 14 days
appeal from the Regional Director's dismissal by filing such request
with the Board in Washington, DC. The request shall contain a complete
statement setting forth the facts and reasons upon which the request is
made. After a full review of the file with the assistance of its staff,
the Board may sustain the dismissal, stating the grounds for its
affirmance, or may direct the Regional Director to take further action.
Sec. 101.28 Consent agreements providing for election.
(a) The Board makes available to the parties three types of informal
consent procedures through which authorization issues can be resolved
without resort to formal procedures. These informal agreements are the
consent election agreement with final regional director determinations
of post-election disputes, the stipulated election agreement with
discretionary Board review, and the full consent election agreement with
final regional director determinations of pre- and post-election
disputes. Forms for use in these informal procedures are available in
the Regional Offices.
(b) The procedures to be used in connection with a consent-election
agreement with final regional director determinations of post-election
disputes, a stipulated election agreement with discretionary Board
review, and a full consent-election agreement with final regional
director determinations of pre- and post-election disputes are the same
as those described in subpart C of 29 CFR part 102 and the statement of
the general course in connection with similar agreements in
representation cases under Section 9(c) of the Act, except that no
provision is made for runoff elections.
[79 FR 74477, Dec. 15, 2014]
Sec. 101.29 Procedure respecting election conducted without hearing.
If the regional director determines that the case is an appropriate
one for election without formal hearing, an election is conducted as
quickly as possible among the employees and upon the conclusion of the
election the regional director makes available to the parties a tally of
ballots. The parties, however, have an opportunity to make appropriate
challenges and objections to the conduct of the election and they have
the same rights, and the same procedure is followed, with respect to
objections to the conduct of the election and challenged ballots, as is
described in subpart C of 29 CFR part 102 and the statement of the
general course in connection with the postelection procedures in
representation cases under Section 9(c) of the Act, except that no
provision is made for a runoff election. If no such objections are filed
within 7 days and if the challenged ballots are insufficient in number
to affect the results of the election, the regional director issues to
the parties a certification of the results of the election, with the
same force and effect as if issued by the Board.
[79 FR 74477, Dec. 15, 2014]
Sec. 101.30 Formal hearing and procedure respecting election conducted
after hearing.
(a) The procedures are the same as those described in subpart C of
29 CFR part 102 and the statement of the general course respecting
representation cases arising under Section 9(c) of the Act insofar as
applicable. If the preliminary investigation indicates that there are
substantial issues which require determination before an appropriate
election may be held, the regional director will institute formal
proceedings by issuance of a notice of
[[Page 31]]
hearing on the issues which, after hearing, is followed by regional
director decision and direction of election or dismissal. The notice of
hearing together with a copy of the petition is served on the
petitioner, the employer, and any other known persons or labor
organizations claiming to have been designated by employees involved in
the proceeding.
(b) The hearing, usually open to the public, is held before a
hearing officer who normally is an attorney or field examiner attached
to the Regional Office but may be another qualified Agency official. The
hearing, which is nonadversary in character, is part of the
investigation in which the primary interest of the Board's agents is to
insure that the record contains as full a statement of the pertinent
facts as may be necessary for determination of the case. The parties are
afforded full opportunity to present their respective positions and to
produce the significant facts in support of their contentions that are
relevant to the issue of whether the Board should conduct an election to
determine whether the employees in a bargaining unit covered by an
agreement between their employer and a labor organization made pursuant
to section 8(a)(3) of the Act, desire that such authority be rescinded.
In most cases a substantial number of the relevant facts are undisputed
and stipulated. The parties are permitted to argue orally on the record
before the hearing officer.
(c) Upon the close of the hearing, the entire record in the case is
then forwarded to the regional director, together with an informal
analysis by the hearing officer of the issues and the evidence but
without recommendations. Post-hearing briefs are filed only upon special
permission of the regional director and within the time and addressing
the subjects permitted by the regional director.
(d) The parties have the same rights, and the same procedure is
followed, with respect to objections to the conduct of the election and
challenged ballots as is described in connection with the postelection
procedures in representation cases under Section 9(c) of the Act.
[79 FR 74477, Dec. 15, 2014]
Subpart F_Jurisdictional Dispute Cases Under Section 10(k) of the Act
Sec. 101.31 Initiation of proceedings to hear and determine
jurisdictional disputes under section 10(k).
The investigation of a jurisdictional dispute under section 10(k) is
initiated by the filing of a charge, as described in Sec. 101.2, by any
person alleging a violation of paragraph (4)(D) of section 8(b). As soon
as possible after a charge has been filed, the Regional Director serves
on the parties a copy of the charge together with a notice of the filing
of such charge.
Sec. 101.32 Investigation of charges; withdrawal of charges; dismissal
of charges and appeals to Board.
These matters are handled as described in Sec. Sec. 101.4 to 101.7,
inclusive. Cases involving violation of paragraph (4)(D) of section 8(b)
in which it is deemed appropriate to seek injunctive relief of a
district court pursuant to section 10(1) of the Act are given priority
over all other cases in the office except other cases under section
10(1) of the Act and cases of like character.
Sec. 101.33 Initiation of formal action; settlement.
If, after investigation, it appears that the Board should determine
the dispute under section 10(k) of the Act, the Regional Director issues
a notice of hearing which includes a simple statement of issues involved
in the jurisdictional dispute and which is served on all parties to the
dispute out of which the unfair labor practice is alleged to have
arisen. The hearing is scheduled for not less than 10 days after service
of the notice of the filing of the charge, except that in cases
involving the national defense, agreement will be sought for scheduling
of hearing on less notice. If the parties present to the Regional
Director satisfactory evidence that they have adjusted the dispute, the
Regional Director withdraws the notice of hearing and either permits the
withdrawal of the charge or dismisses the charge. If the parties submit
to the Regional Director satisfactory evidence that they have agreed
upon methods for the voluntary adjustment
[[Page 32]]
of the dispute, the Regional Director shall defer action upon the charge
and shall withdraw the notice of hearing if issued. The parties may
agree on an arbitrator, a proceeding under section 9(c) of the Act, or
any other satisfactory method to resolve the dispute. If the agreed-upon
method for voluntary adjustment results in a determination that
employees represented by a charged union are entitled to perform the
work in dispute, the Regional Director dismisses the charge against that
union irrespective of whether the employer complies with that
determination.
Sec. 101.34 Hearing.
If the parties have not adjusted the dispute or agreed upon methods
of voluntary adjustment, a hearing, usually open to the public, is held
before a hearing officer. The hearing is nonadversary in character, and
the primary interest of the hearing officer is to insure that the record
contains as full a statement of the pertinent facts as may be necessary
for a determination of the issues by the Board. All parties are afforded
full opportunity to present their respective positions and to produce
evidence in support of their contentions. The parties are permitted to
argue orally on the record before the hearing officer. At the close of
the hearing, the case is transmitted to the Board for decision. The
hearing officer prepares an analysis of the issues and the evidence, but
makes no recommendations in regard to resolution of the dispute.
Sec. 101.35 Procedure before the Board.
The parties have 7 days after the close of the hearing, subject to
any extension that may have been granted, to file briefs with the Board
and to request oral argument which the Board may or may not grant.
However, in cases involving the national defense and so designated in
the notice of hearing, the parties may not file briefs but after the
close of the evidence may argue orally upon the record their respective
contentions and positions, except that for good cause shown in an
application expeditiously made to the Board in Washington, DC, after the
close of the hearing, the Board may grant leave to file briefs in such
time as it shall specify. The Board then considers the evidence taken at
the hearing and the hearing officer's analysis together with any briefs
that may be filed and the oral argument, if any, and issues its
determination or makes other disposition of the matter.
Sec. 101.36 Compliance with determination; further proceedings.
After the issuance of determination by the Board, the Regional
Director in the Region in which the proceeding arose communicates with
the parties for the purpose of ascertaining their intentions in regard
to compliance. Conferences may be held for the purpose of working out
details. If satisfied that the parties are complying with the
determination, the Regional Director dismisses the charge. If not
satisfied that the parties are complying, the Regional Director issues a
complaint and notice of hearing, charging violation of section
8(b)(4)(D) of the Act, and the proceeding follows the procedure outlined
in Sec. Sec. 101.8 to 101.15, inclusive. However, if the Board
determines that employees represented by a charged union are entitled to
perform the work in dispute, the Regional Director dismisses the charge
against that union irrespective of whether the employer complies with
the determination.
Subpart G_Procedure Under Section 10 (j) and (l) of the Act
Sec. 101.37 Application for temporary relief or restraining orders.
Whenever it is deemed advisable to seek temporary injunctive relief
under section 10(j) or whenever it is determined that a complaint should
issue alleging violation of section 8(b)(4) (A), (B), or (C), or section
8(e), or section 8(b)(7), or whenever it is appropriate to seek
temporary injunctive relief for a violation of section 8(b)(4)(D), the
officer or regional attorney to whom the matter has been referred will
make application for appropriate temporary relief or restraining order
in the district court of the United States within which the unfair labor
practice is alleged to have occurred or within which the party sought to
be enjoined resides or transacts business, except that such
[[Page 33]]
officer or regional attorney will not apply for injunctive relief under
section 10(l) with respect to an alleged violation of section 8(b)(7) if
a charge under section 8(a)(2) has been filed and, after preliminary
investigation, there is reasonable cause to believe that such charge is
true and a complaint should issue.
Sec. 101.38 Change of circumstances.
Whenever a temporary injunction has been obtained pursuant to
section 10(j) and thereafter the administrative law judge hearing the
complaint, upon which the determination to seek such injunction was
predicated, recommends dismissal of such complaint, in whole or in part,
the officer or regional attorney handling the case for the Board
suggests to the district court which issued the temporary injunction the
possible change in circumstances arising out of the findings and
recommendations of the administrative law judge.
Subpart H_Advisory Opinions and Declaratory Orders Regarding Board
Jurisdiction
Sec. 101.39 Initiation of advisory opinion case.
(a) The question of whether the Board will assert jurisdiction over
a labor dispute which is the subject of a proceeding in an agency or
court of a State or territory is initiated by the filing of a petition
with the Board. This petition may be filed only if:
(1) A proceeding is currently pending before such agency or court;
(2) The petitioner is the agency or court itself; and
(3) The relevant facts are undisputed or the agency or court has
already made the relevant factual findings.
(b) The petition must be in writing and signed. It is filed with the
Executive Secretary of the Board in Washington, DC. No particular form
is required, but the petition must be properly captioned and must
contain the allegations required by section 102.99 of the Board's Rules
and Regulations. None of the information sought may relate to the merits
of the dispute. The petition may be withdrawn at any time before the
Board issues its advisory opinion determining whether it would or would
not assert jurisdiction on the basis of the facts before it.
[61 FR 65182, Dec. 11, 1996; 62 FR 52381, Oct. 7, 1997]
Sec. 101.40 Proceedings following the filing of the petition.
(a) A copy of the petition is served on all other parties and the
appropriate Regional Director by the petitioner.
(b) Interested persons may request intervention by a written motion
to the Board. Such intervention may be granted at the discretion of the
Board.
(c) Parties other than the petitioner may reply to the petition in
writing, admitting or denying any or all of the matters asserted
therein.
(d) No briefs shall be filed except upon special permission of the
Board.
(e) After review of the entire record, the Board issues an advisory
opinion as to whether the facts presented would or would not cause it to
assert jurisdiction over the case if the case had been originally filed
before it. The Board will limit its advisory opinion to the
jurisdictional issue confronting it, and will not presume to render an
opinion on the merits of the case or on the question of whether the
subject matter of the dispute is governed by the Labor Management
Relations Act.
Sec. 101.41 Informal procedures for obtaining opinions on jurisdictional
questions.
Although a formal petition is necessary to obtain an advisory
opinion from the Board, other avenues are available to persons seeking
informal and, in most cases, speedy opinions on jurisdictional issues.
In discussion of jurisdictional questions informally with Regional
Office personnel, information and advice concerning the Board's
jurisdictional standards may be obtained. Such practices are not
intended to be discouraged by the rules providing for formal advisory
opinions by the Board, although the opinions expressed by such personnel
are not to be regarded as binding upon the Board or the General Counsel.
[[Page 34]]
Sec. 101.42 Procedures for obtaining declaratory orders of the Board.
(a) When both an unfair labor practice charge and a representation
petition are pending concurrently in a Regional Office, appeals from a
Regional Director's dismissals thereof do not follow the same course.
Appeal from the dismissal of a charge must be made to the General
Counsel, while appeal from dismissal of a representation petition may be
made to the Board. To obtain uniformity in disposing of such cases on
jurisdictional grounds at the same stage of each proceeding, the General
Counsel may file a petition for a declaratory order of the Board. Such
order is intended only to remove uncertainty with respect to the
question of whether the Board would assert jurisdiction over the labor
dispute.
(b) A petition to obtain a declaratory Board order may be filed only
by the General Counsel. It must be in writing and signed. It is filed
with the Executive Secretary of the Board in Washington, DC. No
particular form is required, but the petition must be properly captioned
and must contain the allegations required by Sec. 102.106 of the
Board's Rules and Regulations. None of the information sought relates to
the merits of the dispute. The petition may be withdrawn any time before
the Board issues its declaratory order deciding whether it would or
would not assert jurisdiction over the cases.
Sec. 101.43 Proceedings following the filing of the petition.
(a) A copy of the petition is served on all other parties.
(b) Interested persons may request intervention by a written motion
to the Board. Such intervention may be granted at the discretion of the
Board.
(c) All other parties may reply to the petition in writing.
(d) Briefs may be filed.
(e) After review of the record, the Board issues a declaratory order
as to whether it will assert jurisdiction over the cases, but it will
not render a decision on the merits at this stage of the cases.
(f) The declaratory Board order will be binding on the parties in
both cases.
PART 102_RULES AND REGULATIONS, SERIES 8--Table of Contents
Subpart A_Definitions
Sec.
102.1 Terms defined in Section 2 of the Act.
Subpart B_Service and Filings
102.2 Time requirements for filings with the Agency.
102.3 Date of service.
102.4 Methods of service of process and papers by the Agency; proof of
service.
102.5 Filing and service of papers by parties: Form of papers; manner
and proof of filing or service.
102.6 Notice to the Administrative Law Judge or Board of supplemental
authority.
102.7 Signature on documents E-Filed with the Agency.
102.8 [Reserved]
Subpart C_Procedure Under Section 10(A) to (I) of the Act for the
Prevention of Unfair Labor Practices
102.9 Who may file; withdrawal and dismissal.
102.10 Where to file.
102.11 Signature; sworn; declaration.
102.12 Contents.
102.13 [Reserved]
102.14 Service of charge.
102.15 When and by whom issued; contents; service.
102.16 Hearing; change of date or place.
102.17 Amendment.
102.18 Withdrawal.
102.19 Appeal to the General Counsel from refusal to issue or reissue.
102.20 Answer to complaint; time for filing; contents; allegations not
denied deemed admitted.
102.21 Where to file; service upon the parties; form.
102.22 Extension of time for filing.
102.23 Amendment.
102.24 Motions; where to file; contents; service on other parties;
promptness in filing and response; default judgment
procedures; summary judgment procedures.
102.25 Ruling on motions.
102.26 Motions; rulings and orders part of the record; rulings not to be
appealed directly to the Board without special permission;
requests for special permission to appeal.
102.27 Review of granting of motion to dismiss entire complaint;
reopening of the record.
102.28 Filing of answer or other participation in proceedings not a
waiver of rights.
[[Page 35]]
102.29 Intervention; requisites; rulings on motions to intervene.
102.30 Depositions; examination of witnesses.
102.31 Issuance of subpoenas; petitions to revoke subpoenas; rulings on
claim of privilege against self-incrimination; subpoena
enforcement proceedings; right to inspect or copy data.
102.32 Payment of witness fees and mileage; fees of officer who
transcribes deposition or video testimony.
102.33 Transfer of charge and proceeding from Region to Region;
consolidation of proceedings in same Region; severance.
102.34 Who will conduct hearing; public unless otherwise ordered.
102.35 Duties and powers of Administrative Law Judges; stipulations of
cases to Administrative Law Judges or to the Board; assignment
and powers of settlement judges.
102.36 Disqualification and unavailability of Administrative Law Judges.
102.37 [Reserved]
102.38 Rights of parties.
102.39 Rules of evidence controlling so far as practicable.
102.40 Stipulations of fact admissible.
102.41 Objection to conduct of hearing; how made; objections not waived
by further participation.
102.42 Filings of briefs and proposed findings with the Administrative
Law Judge and oral argument at the hearing.
102.43 Continuance and adjournment.
102.44 [Reserved]
102.45 Administrative Law Judge's decision; contents of record;
alternative dispute resolution program.
102.46 Exceptions and brief in support; answering briefs to exceptions;
cross-exceptions and brief in support; answering briefs to
cross-exceptions; reply briefs; failure to except; oral
argument; filing requirements; amicus curiae briefs.
102.47 Filing of motion after transfer of case to Board.
102.48 No exceptions filed; exceptions filed; motions for
reconsideration, rehearing, or reopening the record.
102.49 Modification or setting aside of Board order before record filed
in court; action thereafter.
102.50 Hearings before the Board or a Board Member.
102.51 Settlement or adjustment of issues.
102.52 Compliance with Board order; notification of compliance
determination.
102.53 Appeal of compliance determination to the General Counsel;
General Counsel's action; request for review by the Board;
Board action; opposition to appeal or request for review.
102.54 Issuance of compliance specification; consolidation of complaint
and compliance specification.
102.55 Contents of compliance specification.
102.56 Answer to compliance specification.
102.57 Extension of date of hearing.
102.58 Withdrawal of compliance specification.
102.59 Hearing and posthearing procedures.
Subpart D_Procedure Under Section 9(c) of the Act for the Determination
of Questions Concerning Representation of Employees and for
Clarification of Bargaining Units and for Amendment of Certifications
Under Section 9(b) of the Act
102.60 Petitions.
102.61 Contents of petition for certification; contents of petition for
decertification; contents of petition for clarification of
bargaining unit; contents of petition for amendment of
certification.
102.62 Election agreements; voter list; Notice of Election.
102.63 Investigation of petition by regional director; notice of
hearing; service of notice; Notice of Petition for Election;
Statement of Position; withdrawal of notice of hearing.
102.64 Conduct of hearing.
102.65 Motions; intervention; appeals of hearing officer's rulings.
102.66 Introduction of evidence: rights of parties at hearing;
preclusion; subpoenas; oral argument and briefs.
102.67 Proceedings before the regional director; further hearing; action
by the regional director; appeals from actions of the regional
director; statement in opposition; requests for extraordinary
relief; Notice of Election; voter list.
102.68 Record in pre-election proceeding; what constitutes; transmission
to Board.
102.69 Election procedure; tally of ballots; objections; certification
by the regional director; hearings; hearing officer reports on
objections and challenges; exceptions to hearing officer
reports; regional director decisions on objections and
challenges.
102.70 Runoff election.
102.71 Dismissal of petition; refusal to proceed with petition; requests
for review by the Board of action of the regional director.
102.72 Filing petition with general counsel; investigation upon motion
of general counsel; transfer of petition and proceeding from
region to general counsel or
[[Page 36]]
to another region; consolidation of proceedings in same
region; severance; procedure before general counsel in cases
over which he has assumed jurisdiction.
Subpart E_Procedure for Unfair Labor Practice and Representation Cases
Under Sections 8(b)(7) and 9(c) of the Act
102.73 Initiation of proceedings.
102.74 Complaint and formal proceedings.
102.75 Suspension of proceedings on the charge where timely petition is
filed.
102.76 Petition; who may file; where to file; contents.
102.77 Investigation of petition by Regional Director; directed
election.
102.78 Election procedure; method of conducting balloting; postballoting
procedure.
102.79 Consent-election agreements.
102.80 Dismissal of petition; refusal to process petition under
expedited procedure.
102.81 Review by the general counsel of refusal to proceed on charge;
resumption of proceedings upon charge held during pendency of
petition; review by the general counsel of refusal to proceed
on related charge.
102.82 Transfer, consolidation, and severance.
Subpart F_Procedure for Referendum Under Section 9(e) of the Act
102.83 Petition for referendum under section 9(e)(1) of the Act; who may
file; where to file; withdrawal.
102.84 Contents of petition to rescind authority.
102.85 Investigation of petition by regional director; consent
referendum; directed referendum.
102.86 Hearing; posthearing procedure.
102.87 Method of conducting balloting; postballoting procedure.
102.88 Refusal to conduct referendum; appeal to Board.
Subpart G_Procedure to Hear and Determine Disputes Under Section 10(k)
of the Act
102.89 Initiation of proceedings.
102.90 Notice of hearing; hearing; proceedings before the Board; briefs;
determination of dispute.
102.91 Compliance with determination; further proceedings.
102.92 Review of determination.
102.93 Alternative procedure.
Subpart H_Procedure in Cases Under Section 10(j), (l), and (m) of the
Act
102.94 Expeditious processing of Section 10(j) cases.
102.95 Priority of cases pursuant to Section 10(l) and (m) of the Act.
102.96 Issuance of complaint promptly.
102.97 Expeditious processing of Section 10(l) and (m) cases in
successive stages.
Subpart I_Advisory Opinions and Declaratory Orders Regarding Board
Jurisdiction
102.98 Petition for advisory opinion; who may file; where to file.
102.99 Contents of petition for advisory opinion.
102.100 Notice of petition; service of petition.
102.101 Response to petition; service of response.
102.102 Intervention.
102.103 Proceedings before the Board; briefs; advisory opinions.
102.104 Withdrawal of petition.
102.105 Petitions for declaratory orders; who may file; where to file;
withdrawal.
102.106 Contents of petition for declaratory order.
102.107 Notice of petition; service of petition.
102.108 Response to petition; service of response.
102.109 Intervention.
102.110 Proceedings before the Board; briefs; declaratory orders.
102.111-102.114 [Reserved]
Subpart J_Certification and Signature of Documents
102.115 Certification of Board papers and documents.
102.116 Signature on Board orders.
Subpart K_Records and Information
102.117 Freedom of Information Act Regulations: Agency materials
including formal documents available pursuant to the Freedom
of Information Act; requests for described records; time limit
for response; appeal from denial of request; fees for document
search, duplication, and review; files and records not subject
to inspection.
102.118 Present and former Board employees prohibited from producing
documents and testifying; production of witnesses' statements
after direct testimony.
102.119 Privacy Act Regulations: Notification as to whether a system of
records contains records pertaining to requesting individuals;
requests for access to records, amendment of such records, or
accounting of disclosures; time limits for
[[Page 37]]
response; appeal from denial of requests; fees for document
duplication; files and records exempted from certain Privacy
Act requirements.
Subpart L_Post-Employment Restrictions on Activities by Former Officers
and Employees
102.120 Post-employment restrictions on activities by former officers
and employees.
Subpart M_Construction of Rules
102.121 Rules to be liberally construed.
102.122 and 102.123 [Reserved]
Subpart N [Reserved]
Subpart O_Amendments
102.124 Petitions for issuance, amendment, or repeal of rules.
102.125 Action on petition.
Subpart P_Ex Parte Communications
102.126 Unauthorized communications.
102.127 Definitions.
102.128 Types of on-the-record proceedings; categories of Board agents;
duration of prohibition.
102.129 Communications prohibited.
102.130 Communications not prohibited.
102.131 Solicitation of prohibited communications.
102.132 Reporting of prohibited communications; penalties.
102.133 Penalties and enforcement.
102.134 [Reserved]
Subpart Q_Procedure Governing Matters Affecting Employment-Management
Agreements Under the Postal Reorganization Act
102.135 Postal Reorganization Act.
Subpart R_Advisory Committees
102.136 Establishment and use of advisory committees.
Subpart S_Open Meetings
102.137 Public observation of Board meetings.
102.138 Definition of meeting.
102.139 Closing of meetings; reasons.
102.140 Action necessary to close meeting; record of votes.
102.141 Notice of meetings; public announcement and publication.
102.142 Transcripts, recordings, or minutes of closed meetings; public
availability; retention.
Subpart T_Awards of Fees and Other Expenses
102.143 ``Adversary adjudication'' defined; entitlement to award;
eligibility for award.
102.144 Standards for awards.
102.145 Allowable fees and expenses.
102.146 Rulemaking on maximum rates for attorney or agent fees.
102.147 Contents of application; net worth exhibit; documentation of
fees and expenses.
102.148 When an application may be filed; place of filing; service;
referral to Administrative Law Judge; stay of proceeding.
102.149 Filing of documents; service of documents; motions for extension
of time.
102.150 Answer to application; reply to answer; comments by other
parties.
102.151 Settlement.
102.152 Further proceedings.
102.153 Administrative Law Judge's decision; contents; service; transfer
of case to the Board; contents of record in case.
102.154 Exceptions to Administrative Law Judge's decision; briefs;
action of the Board.
102.155 Payment of award.
Subpart U_Debt-Collection Procedures by Administrative Offset
102.156 Administrative offset; purpose and scope.
102.157 Definitions.
102.158 Agency requests for administrative offsets and cooperation with
other Federal agencies.
102.159 Exclusions.
102.160 Agency responsibilities.
102.161 Notification.
102.162 Examination and copying of records related to the claim;
opportunity for full explanation of the claim.
102.163 Opportunity for repayment.
102.164 Review of the obligation.
102.165 Cost shifting.
102.166 Additional administrative collection action.
102.167 Prior provision of rights with respect to debt.
Subpart V_Debt Collection Procedures by Federal Income Tax Refund Offset
102.168 Federal income tax refund offset; purpose and scope.
102.169 Definitions.
102.170 Agency referral to IRS for tax referral effect; Agency
responsibilities.
102.171 Cost shifting.
102.172 Minimum referral amount.
102.173 Relation to other collection efforts.
102.174 Debtor notification.
102.175 Agency review of the obligation.
[[Page 38]]
102.176 [Reserved]
Subpart W_Misconduct by Attorneys or Party Representatives
102.177 Exclusion from hearings; Refusal of witness to answer questions;
Misconduct by attorneys and party representatives before the
Agency; Procedures for processing misconduct allegations.
Subpart X_Special Procedures When the Board Lacks a Quorum
102.178 Normal operations should continue.
102.179 Motions for default judgment, summary judgment, or dismissal
referred to Chief Administrative Law Judge.
102.180 Requests for special permission to appeal referred to Chief
Administrative Law Judge.
102.181 Administrative and procedural requests referred to Executive
Secretary.
102.182 Representation cases should be processed to certification.
Authority: 29 U.S.C. 151, 156. Section 102.117 also issued under 5
U.S.C. 552(a)(4)(A), and Sec. 102.119 also issued under 5 U.S.C.
552a(j) and (k). Sections 102.143 through 102.155 also issued under 5
U.S.C. 504(c)(1).
Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted.
Subpart A_Definitions
Sec. 102.1 Terms defined in Section 2 of the Act.
(a) Definition of terms. The terms person, employer, employee,
representative, labor organization, commerce, affecting commerce, and
unfair labor practice as used herein have the meanings set forth in
Section 2 of the National Labor Relations Act, as amended by title I of
the Labor Management Relations Act, 1947.
(b) Act, Board, and Board agent. The term Act means the National
Labor Relations Act, as amended. The term Board means the National Labor
Relations Board and must include any group of three or more Members
designated pursuant to Section 3(b) of the Act. The term Board agent
means any Member, agent, or agency of the Board, including its General
Counsel.
(c) General Counsel. The term General Counsel means the General
Counsel under Section 3(d) of the Act.
(d) Region and Subregion. The term Region means that part of the
United States or any territory thereof fixed by the Board as a
particular Region. The term Subregion means that area within a Region
fixed by the Board as a particular Subregion.
(e) Regional Director, Officer-in-Charge, and Regional Attorney. The
term Regional Director means the agent designated by the Board as the
Regional Director for a particular Region, and also includes any agent
designated by the Board as Officer-in-Charge of a Subregional office,
but the Officer-in-Charge must have only such powers, duties, and
functions appertaining to Regional Directors as have been duly delegated
to such Officer-in-Charge. The term Regional Attorney means the attorney
designated as Regional Attorney for a particular Region.
(f) Administrative Law Judge and Hearing Officer. The term
Administrative Law Judge means the agent of the Board conducting the
hearing in an unfair labor practice proceeding. The term Hearing Officer
means the agent of the Board conducting the hearing in a proceeding
under Section 9 or in a dispute proceeding under Section 10(k) of the
Act.
(g) State. The term State includes the District of Columbia and all
States, territories, and possessions of the United States.
(h) Party. The term party means the Regional Director in whose
Region the proceeding is pending and any person named or admitted as a
party, or properly seeking and entitled as of right to be admitted as a
party, in any Board proceeding, including, without limitation, any
person filing a charge or petition under the Act, any person named as
Respondent, as employer, or as party to a contract in any proceeding
under the Act, and any labor organization alleged to be dominated,
assisted, or supported in violation of Section 8(a)(1) or 8(a)(2) of the
Act; but nothing herein should be construed to prevent the Board or its
designated agent from limiting any party to participate in the
proceedings to the extent of the party's interest only.
(i) Business day. The term business day means days that Agency
offices are open normal business operating hours, which is Monday
through Friday, excluding Federal holidays. A list of Federal holidays
can be found at
[[Page 39]]
www.opm.gov/policy-data-oversight/snow-dismissal-procedures/federal-
holidays/.
[82 FR 11751, Feb. 24, 2017, as amended at 84 FR 69588, Dec. 18, 2019]
Subpart B_Service and Filings
Source: 82 FR 11751, Feb. 24, 2017, unless otherwise noted.
Sec. 102.2 Time requirements for filings with the Agency.
(a) Time computation. In computing any period of time prescribed or
allowed by these Rules, the day of the act, event, or default after
which the designated period of time begins to run is not to be included.
The last day of the period so computed is to be included, unless it does
not fall on a business day, in which event the period runs until the
next Agency business day. When the period of time prescribed or allowed
is less than 7 days, only business days are included in the computation.
Except as otherwise provided, in computing the period of time for filing
a responsive document, the designated period begins to run on the date
the preceding document was required to be received by the Agency, even
if the preceding document was filed prior to that date.
(b) Timeliness of filings. If there is a time limit for the filing
of a motion, brief, exception, request for extension of time, or other
paper in any proceeding, such document must be received by the Board or
the officer or agent designated to receive such matter on or before the
last day of the time limit for such filing or the last day of any
extension of time that may have been granted. Non E-Filed documents must
be received before the official closing time of the receiving office
(see www.nlrb.gov setting forth the official business hours of the
Agency's several offices). E-Filed documents must be received by 11:59
p.m. of the time zone of the receiving office. In construing this
section of the Rules, the Board will accept as timely filed any document
which is postmarked on the day before (or earlier than) the due date;
documents which are postmarked on or after the due date are untimely.
``Postmarking'' must include timely depositing the document with a
delivery service that will provide a record showing that the document
was given to the delivery service in sufficient time for delivery by the
due date, but in no event later than the day before the due date.
However, the following documents must be received on or before the last
day for filing:
(1) Charges filed pursuant to Section 10(b) of the Act (see also
Sec. 102.14).
(2) Applications for awards and fees and other expenses under the
Equal Access to Justice Act.
(3) Petitions to revoke subpoenas.
(4) Requests for extensions of time to file any document for which
such an extension may be granted.
(c) Extension of time to file. Except as otherwise provided, a
request for an extension of time to file a document must be filed no
later than the date on which the document is due. Requests for
extensions of time filed within 3 days of the due date must be grounded
upon circumstances not reasonably foreseeable in advance. Requests for
extension of time must be in writing and must be served simultaneously
on the other parties. Parties are encouraged to seek agreement from the
other parties for the extension, and to indicate the other parties'
position in the extension of time request. An opposition to a request
for an extension of time should be filed as soon as possible following
receipt of the request.
(d) Late-filed documents. (1) The following documents may be filed
within a reasonable time after the time prescribed by these Rules only
upon good cause shown based on excusable neglect and when no undue
prejudice would result:
(i) In unfair labor practice proceedings, motions, exceptions,
answers to a complaint or a backpay specification, and briefs; and
(ii) In representation proceedings, exceptions, requests for review,
motions, briefs, and any responses to any of these documents.
(2) A party seeking to file such documents beyond the time
prescribed by these Rules must file, along with the document, a motion
that states the grounds relied on for requesting permission to file
untimely. The specific facts relied on to support the motion must be set
forth in affidavit form and
[[Page 40]]
sworn to by individuals with personal knowledge of the facts. The time
for filing any document responding to the untimely document will not
commence until the date a ruling issues accepting the untimely document.
In addition, cross-exceptions are due within 14 days, or such further
period as the Board may allow, from the date a ruling issues accepting
the untimely filed documents.
[82 FR 11751, Feb. 24, 2017, as amended at 84 FR 69588, Dec. 18, 2019]
Sec. 102.3 Date of service.
Where service is made by mail, private delivery service, or email,
the date of service is the day when the document served is deposited in
the United States mail, is deposited with a private delivery service
that will provide a record showing the date the document was tendered to
the delivery service, or is sent by email, as the case may be. Where
service is made by personal delivery or facsimile, the date of service
will be the date on which the document is received.
Sec. 102.4 Methods of service of process and papers by the Agency;
proof of service.
(a) Method of service for certain Agency-issued documents.
Complaints and compliance specifications (including accompanying notices
of hearing, and amendments to either complaints or to compliance
specifications), final orders of the Board in unfair labor practice
cases and Administrative Law Judges' decisions must be served upon all
parties personally, by registered or certified mail, by leaving a copy
at the principal office or place of business of the person required to
be served, by email as appropriate, or by any other method of service
authorized by law.
(b) Service of subpoenas. Subpoenas must be served upon the
recipient personally, by registered or certified mail, by leaving a copy
at the principal office or place of business of the person required to
be served, by private delivery service, or by any other method of
service authorized by law.
(c) Service of other Agency-issued documents. Other documents may be
served by the Agency by any of the foregoing methods as well as by
regular mail, private delivery service, facsimile, or email.
(d) Proof of service. In the case of personal service, or delivery
to a principal office or place of business, the verified return by the
serving individual, setting forth the manner of such service, is proof
of service. In the case of service by registered or certified mail, the
return post office receipt is proof of service. However, these methods
of proof of service are not exclusive; any sufficient proof may be
relied upon to establish service.
(e) Service upon representatives of parties. Whenever these Rules
require or permit the service of pleadings or other papers upon a party,
a copy must be served on any attorney or other representative of the
party who has entered a written appearance in the proceeding on behalf
of the party. If a party is represented by more than one attorney or
representative, service upon any one of such persons in addition to the
party satisfies this requirement. Service by the Board or its agents of
any documents upon any such attorney or other representative may be
accomplished by any means of service permitted by these Rules, including
regular mail.
Sec. 102.5 Filing and service of papers by parties: Form of papers;
manner and proof of filing or service.
(a) Form of papers to be filed. All papers filed with the Board,
General Counsel, Regional Director, Administrative Law Judge, or Hearing
Officer must be typewritten or otherwise legibly duplicated on 8\1/2\ by
11-inch plain white paper, and must have margins no less than one inch
on all four sides. Page numbers may be placed in the margins, but no
text may appear there. Typeface that is single-spaced must not contain
more than 10.5 characters per inch, and proportionally-spaced typeface
must be 12 point or larger, for both text and footnotes. Condensed text
is not permitted. The text must be double-spaced, but headings and
footnotes may be single-spaced, and quotations more than two lines long
may be indented and single-spaced. Case names must be italicized or
underlined. Where any brief filed with the Board exceeds 20 pages, it
must contain
[[Page 41]]
a subject index with page references and an alphabetical table of cases
and other authorities cited.
(b) Requests to exceed the page limits. Requests for permission to
exceed the page limits for documents filed with the Board must state the
reasons for the requests. Unless otherwise specified, such requests must
be filed not less than 10 days prior to the date the document is due.
(c) E-Filing with the Agency. Unless otherwise permitted under this
section, all documents filed in cases before the Agency must be filed
electronically (``E-Filed'') on the Agency's Web site (www.nlrb.gov) by
following the instructions on the Web site. The Agency's Web site also
contains certain forms that parties or other persons may use to prepare
their documents for E-Filing. If the document being E-Filed is required
to be served on another party to a proceeding, the other party must be
served by email, if possible, or in accordance with paragraph (g) of
this section. Unfair labor practice charges, petitions in representation
proceedings, and showings of interest may be filed in paper format or E-
Filed. A party who files other documents in paper format must accompany
the filing with a statement explaining why the party does not have
access to the means for filing electronically or why filing
electronically would impose an undue burden. Notwithstanding any other
provision in these Rules, if a document is filed electronically the
filer need not also file a hard copy of the document, and only one copy
of a document filed in hard copy should be filed. Documents may not be
filed with the Agency via email without the prior approval of the
receiving office.
(d) Filing with the Agency by Mail or Delivery. Documents to be
filed with the Board are to be filed with the Office of the Executive
Secretary in Washington, DC. Documents to be filed with the Regional
Offices are to be filed with the Regional Office handling the case.
Documents to be filed with the Division of Judges are to be filed with
the Division office handling the matter.
(e) Filing by fax with the Agency. Only unfair labor practice
charges, petitions in representation proceedings, objections to
elections, and requests for extensions of time for filing documents will
be accepted by the Agency if faxed to the appropriate office. Other
documents may not be faxed. At the discretion of the receiving office,
the person submitting a document by fax may be required simultaneously
to file the original with the office by overnight delivery service. When
filing a charge, a petition in a representation proceeding, or election
objections by fax pursuant to this section, receipt of the faxed
document by the Agency constitutes filing with the Agency. A failure to
timely file or serve a document will not be excused on the basis of a
claim that facsimile transmission could not be accomplished because the
receiving machine was off-line or busy or unavailable for any other
reason.
(f) Service. Unless otherwise specified, documents filed with the
Agency must be simultaneously served on the other parties to the case
including, as appropriate, the Regional Office in charge of the case.
Service of documents by a party on other parties may be made personally,
or by registered mail, certified mail, regular mail, email (unless
otherwise provided for by these Rules), private delivery service, or by
fax for documents of or under 25 pages in length. Service of documents
by a party on other parties by any other means, including by fax for
documents over 25 pages in length, is permitted only with the consent of
the party being served. When a party does not have the ability to
receive service by email or fax, or chooses not to accept service of a
document longer than 25 pages by fax, the other party must be notified
personally or by telephone of the substance of the filed document and a
copy of the document must be served by personal service no later than
the next day, by overnight delivery service, or by fax or email as
appropriate. Unless otherwise specified elsewhere in these Rules,
service on all parties must be made in the same manner as that used in
filing the document with the Board, or in a more expeditious manner.
When filing with the Board is done by hand, however, the
[[Page 42]]
other parties must be immediately notified of such action, followed by
service of a copy in a manner designed to insure receipt by them by the
close of the next business day. The provisions of this section apply to
the General Counsel after a complaint has issued, just as they do to any
other party, except to the extent that the provisions of Sec. 102.4(a)
provide otherwise.
(g) Proof of service. When service is made by registered or
certified mail, the return post office receipt will be proof of service.
When service is made by a private delivery service, the receipt from
that service showing delivery will be proof of service. However, these
methods of proof of service are not exclusive; any sufficient proof may
be relied upon to establish service.
(h) Statement of service. The person or party filing a document with
the Agency must simultaneously file a statement of service. Such
statement must include the names of the parties served, the date and
manner of service, and the location of service such as mailing address,
fax number, or email address as appropriate. The Agency requires proof
of service as defined in paragraph (g) of this section only if,
subsequent to the receipt of the statement of service, a question is
raised with respect to proper service. Failure to make proof of service
does not affect the validity of the service.
(i) Failure to properly serve. Failure to comply with the
requirements of this section relating to timeliness of service on other
parties will be a basis for either:
(1) Rejecting the document; or
(2) Withholding or reconsidering any ruling on the subject matter
raised by the document until after service has been made and the served
party has had reasonable opportunity to respond.
Sec. 102.6 Notice to the Administrative Law Judge or Board of
supplemental authority.
Pertinent and significant authorities that come to a party's
attention after the party's submission to the Administrative Law Judge
or the Board has been filed may be brought to the Judge's or the Board's
attention by the party promptly filing a letter with the judge or the
Board and simultaneously serving all other parties. The body of the
letter may not exceed 350 words. A party may file and serve on all other
parties a response that is similarly limited. In unfair labor practice
cases, the response must be filed no later than 14 days after service of
the letter. In representation cases, the response must be filed no later
than 7 days after service of the letter. No extension of time will be
granted to file the response.
Sec. 102.7 Signature on documents E-Filed with the Agency.
Documents filed with the Agency by E-Filing may contain an
electronic signature of the filer which will have the same legal effect,
validity, and enforceability as if signed manually. The term
``electronic signature'' means an electronic sound, symbol, or process,
attached to or logically associated with a contract or other record and
executed or adopted by a person with the intent to sign the document.
Sec. 102.8 [Reserved]
Subpart C_Procedure Under Section 10(A) to (I) of the Act for the
Prevention of Unfair Labor Practices
Source: 82 FR 11754, Feb. 24, 2017, unless otherwise noted.
Sec. 102.9 Who may file; withdrawal and dismissal.
Any person may file a charge alleging that any person has engaged in
or is engaging in any unfair labor practice affecting commerce. The
charge may be withdrawn, prior to the hearing, only with the consent of
the Regional Director with whom such charge was filed; at the hearing
and until the case has been transferred to the Board pursuant to Sec.
102.45, upon motion, with the consent of the Administrative Law Judge
designated to conduct the hearing; and after the case has been
transferred to the Board pursuant to Sec. 102.45, upon motion, with the
consent of the Board. Upon withdrawal of any charge, any complaint based
thereon will be dismissed by the Regional Director
[[Page 43]]
issuing the complaint, the Administrative Law Judge designated to
conduct the hearing, or the Board.
Sec. 102.10 Where to file.
Except as provided in Sec. 102.33, a charge must 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 of those Regions.
Sec. 102.11 Signature; sworn; declaration.
Charges must be in writing and signed, and either must be sworn to
before a notary public, Board agent, or other person duly authorized by
law to administer oaths and take acknowledgments or must contain a
declaration by the person signing it, under the penalty of perjury that
its contents are true and correct (see 28 U.S.C. 1746).
Sec. 102.12 Contents.
(a) A charge must contain the following:
(1) The full name and address of the person making the charge.
(2) If the charge is filed by a labor organization, the full name
and address of any national or international labor organization of which
it is an affiliate or constituent unit.
(3) The full name and address of the person against whom the charge
is made (referred to as the Charged Party).
(4) A brief statement of the conduct constituting the alleged unfair
labor practices affecting commerce.
(b) Attachments to charges are not permitted.
Sec. 102.13 [Reserved]
Sec. 102.14 Service of charge.
(a) Charging Party's obligation to serve; methods of service. Upon
the filing of a charge, the Charging Party is responsible for the timely
and proper service of a copy upon the person against whom such charge is
made. Service may be made personally, or by registered mail, certified
mail, regular mail, private delivery service, or facsimile. With the
permission of the person receiving the charge, service may be made by
email or by any other agreed-upon method.
(b) Service as courtesy by Regional Director. The Regional Director
will, as a matter of courtesy, serve a copy of the charge on the charged
party in person, or send it to the charged party by regular mail,
private delivery service, email or facsimile transmission, in any manner
provided for in Rules 4 or 5 of the Federal Rules of Civil Procedure, or
in any other agreed-upon method. The Region will not be responsible for
such service.
(c) Date of service of charge. In the case of service of a charge by
mail or private delivery service, the date of service is the date of
deposit with the post office or other carrier. In the case of delivery
by email, the date of service is the date the email is sent. In the case
of service by other methods, including hand delivery or facsimile
transmission, the date of service is the date of receipt.
Sec. 102.15 When and by whom issued; contents; service.
After a charge has been filed, if it appears to the Regional
Director that formal proceedings may be instituted, the Director will
issue and serve on all parties a formal complaint in the Board's name
stating the alleged unfair labor practices and containing a Notice of
Hearing before an Administrative Law Judge at a fixed place and at a
time not less than 14 days after the service of the complaint. The
complaint will contain:
(a) A clear and concise statement of the facts upon which the Board
asserts jurisdiction, and
(b) A clear and concise description of the acts which are claimed to
constitute unfair labor practices, including, where known, the
approximate dates and places of such acts and the names of Respondent's
agents or other representatives who committed the acts.
Sec. 102.16 Hearing; change of date or place.
(a) Upon the Regional Director's own motion or upon proper cause
shown by any other party, the Regional Director issuing the complaint
may extend the
[[Page 44]]
hearing date or change the hearing place, except that the Regional
Director's authority to extend the hearing date is limited to the
following circumstances:
(1) Where all parties agree or no party objects to extension of the
hearing date;
(2) Where a new charge or charges have been filed which, if
meritorious, might be appropriate for consolidation with the pending
complaint;
(3) Where negotiations which could lead to settlement of all or a
portion of the complaint are in progress;
(4) Where issues related to the complaint are pending before the
General Counsel's Division of Advice or Office of Appeals; or
(5) Where more than 21 days remain before the scheduled hearing
date.
(b) In circumstances other than those set forth in paragraph (a) of
this section, motions to reschedule the hearing may be filed with the
Division of Judges in accordance with Sec. 102.24(a). When a motion to
reschedule has been granted, the Regional Director issuing the complaint
retains the authority to order a new hearing date and the responsibility
to make the necessary arrangements for conducting the hearing, including
its location and the transcription of the proceedings.
Sec. 102.17 Amendment.
A complaint may be amended upon such terms as may be deemed just,
prior to the hearing, by the Regional Director issuing the complaint; at
the hearing and until the case has been transferred to the Board
pursuant to Sec. 102.45, upon motion, by the Administrative Law Judge
designated to conduct the hearing; and after the case has been
transferred to the Board pursuant to Sec. 102.45, at any time prior to
the issuance of an order based thereon, upon motion, by the Board.
Sec. 102.18 Withdrawal.
A complaint may be withdrawn before the hearing by the Regional
Director on the Director's own motion.
Sec. 102.19 Appeal to the General Counsel from refusal to issue or
reissue.
(a) If, after the charge has been filed, the Regional Director
declines to issue a complaint or, having withdrawn a complaint pursuant
to Sec. 102.18, refuses to reissue it, the Director will so advise the
parties in writing, accompanied by a simple statement of the procedural
or other grounds for that action. The Charging Party may obtain a review
of such action by filing the ``Appeal Form'' with the General Counsel in
Washington, DC, and filing a copy of the ``Appeal Form'' with the
Regional Director, within 14 days from the service of the notice of such
refusal to issue or reissue by the Regional Director, except where a
shorter period is provided by Sec. 102.81. The Charging Party may also
file a statement setting forth the facts and reasons upon which the
appeal is based. If such a statement is timely filed, the separate
``Appeal Form'' need not be served. A request for extension of time to
file an appeal must be in writing and be received by the General
Counsel, and a copy of such request filed with the Regional Director,
prior to the expiration of the filing period. Copies of the
acknowledgment of the filing of an appeal and of any ruling on a request
for an extension of time for filing of the appeal must be served on all
parties. Consideration of an appeal untimely filed is within the
discretion of the General Counsel upon good cause shown.
(b) Oral presentation in Washington, DC, of the appeal issues may be
permitted by a party on written request made within 4 days after service
of acknowledgement of the filing of an appeal. In the event such request
is granted, the other parties must be notified and afforded, without
additional request, a like opportunity at another appropriate time.
(c) The General Counsel may sustain the Regional Director's refusal
to issue or reissue a complaint, stating the grounds of the affirmance,
or may direct the Regional Director to take further action; the General
Counsel's decision must be served on all the parties. A motion for
reconsideration of the decision must be filed within 14 days of service
of the decision, except as hereinafter provided, and must state with
particularity the error requiring reconsideration. A motion for
reconsideration based upon newly discovered evidence which has become
available only
[[Page 45]]
since the decision on appeal must be filed promptly on discovery of such
evidence. Motions for reconsideration of a decision previously
reconsidered will not be entertained, except in unusual situations where
the moving party can establish that new evidence has been discovered
which could not have been discovered by diligent inquiry prior to the
first reconsideration.
Sec. 102.20 Answer to complaint; time for filing; contents; allegations
not denied deemed admitted.
The Respondent must, within 14 days from the service of the
complaint, file an answer. The Respondent must specifically admit, deny,
or explain each of the facts alleged in the complaint, unless the
Respondent is without knowledge, in which case the Respondent must so
state, such statement operating as a denial. All allegations in the
complaint, if no answer is filed, or any allegation in the complaint not
specifically denied or explained in an answer filed, unless the
Respondent states in the answer that the Respondent is without
knowledge, will be deemed to be admitted to be true and will be so found
by the Board, unless good cause to the contrary is shown.
Sec. 102.21 Where to file; service upon the parties; form.
An original and four copies of the answer shall be filed with the
Regional Director issuing the complaint. Immediately upon the filing of
the answer, Respondent shall serve a copy thereof on the other parties.
An answer of a party represented by counsel or non-attorney
representative shall be signed by at least one such attorney or non-
attorney representative of record in his/her individual name, whose
address shall be stated. A party who is not represented by an attorney
or non-attorney representative shall sign his/her answer and state his/
her address. Except when otherwise specifically provided by rule or
statute, an answer need not be verified or accompanied by affidavit. The
signature of the attorney or non-attorney party representative
constitutes a certificate by him/her that he/she has read the answer;
that to the best of his/her knowledge, information, and belief there is
good ground to support it; and that it is not interposed for delay. If
an answer is not signed or is signed with intent to defeat the purpose
of this section, it may be stricken as sham and false and the action may
proceed as though the answer had not been served. For a willful
violation of this section an attorney or non-attorney party
representative may be subjected to appropriate disciplinary action.
Similar action may be taken if scandalous or indecent matter is
inserted.
[82 FR 11754, Feb. 24, 2017, as amended at 82 FR 43697, Sept. 19, 2017]
Sec. 102.22 Extension of time for filing.
Upon the Regional Director's own motion or upon proper cause shown
by any other party, the Regional Director issuing the complaint may by
written order extend the time within which the answer must be filed.
Sec. 102.23 Amendment.
The Respondent may amend its answer at any time prior to the
hearing. During the hearing or subsequently, the Respondent may amend
the answer in any case where the complaint has been amended, within such
period as may be fixed by the Administrative Law Judge or the Board.
Whether or not the complaint has been amended, the answer may, in the
discretion of the Administrative Law Judge or the Board, upon motion, be
amended upon such terms and within such periods as may be fixed by the
Administrative Law Judge or the Board.
Sec. 102.24 Motions; where to file; contents; service on other parties;
promptness in filing and response; default judgment procedures; summary
judgment procedures.
(a) All motions under Sec. Sec. 102.22 and 102.29 made prior to the
hearing must be filed in writing with the Regional Director issuing the
complaint. All motions for default judgment, summary judgment, or
dismissal made prior to the hearing must be filed in writing with the
Board pursuant to the provisions of Sec. 102.50. All other motions made
prior to the hearing, including motions to reschedule the hearing under
circumstances other than those set forth in Sec. 102.16(a), must be
filed in
[[Page 46]]
writing with the Chief Administrative Law Judge in Washington, DC, with
the Associate Chief Judge in San Francisco, California, or with the
Associate Chief Judge in New York, New York, as the case may be. All
motions made at the hearing must be made in writing to the
Administrative Law Judge or stated orally on the record. All motions
filed subsequent to the hearing, but before the transfer of the case to
the Board pursuant to Sec. 102.45, must be filed with the
Administrative Law Judge, care of the Chief Administrative Law Judge in
Washington, DC, the Associate Chief Judge in San Francisco, or the
Associate Chief Judge in New York, as the case may be. Motions must
briefly state the order or relief applied for and the grounds therefor.
All motions filed with a Regional Director or an Administrative Law
Judge as set forth in this paragraph (a) must be filed together with an
affidavit of service on the parties. All motions filed with the Board,
including motions for default judgment, summary judgment, or dismissal,
must be filed with the Executive Secretary of the Board in Washington,
DC, together with an affidavit of service on the parties. Unless
otherwise provided in these Rules, motions, oppositions, and replies
must be filed promptly and within such time as not to delay the
proceeding.
(b) All motions for summary judgment or dismissal must be filed with
the Board no later than 28 days prior to the scheduled hearing. Where no
hearing is scheduled, or where the hearing is scheduled less than 28
days after the date for filing an answer to the complaint or compliance
specification, whichever is applicable, the motion must be filed
promptly. Upon receipt of the motion, the Board may deny the motion or
issue a Notice to Show Cause why the motion may not be granted. If a
Notice to Show Cause is issued, the hearing, if scheduled, will normally
be postponed indefinitely. If a party desires to file an opposition to
the motion prior to issuance of the Notice to Show Cause to prevent
postponement of the hearing, it may do so. However, any such opposition
must be filed no later than 21 days prior to the hearing. If a Notice to
Show Cause is issued, an opposing party may file a response
notwithstanding any opposition it may have filed prior to issuance of
the notice. The time for filing the response must be fixed in the Notice
to Show Cause. Neither the opposition nor the response must be supported
by affidavits or other documentary evidence showing that there is a
genuine issue for hearing. The Board in its discretion may deny the
motion where the motion itself fails to establish the absence of a
genuine issue, or where the opposing party's pleadings, opposition and/
or response indicate on their face that a genuine issue may exist. If
the opposing party files no opposition or response, the Board may treat
the motion as conceded, and default judgment, summary judgment, or
dismissal, if appropriate, will be entered.
(c) A party that has filed a motion may file a reply to an
opposition to its motion within 7 days of receipt of the opposition, but
in the interest of administrative finality, further responses are not
permitted except where there are special circumstances warranting leave
to file such a response.
Sec. 102.25 Ruling on motions.
An Administrative Law Judge designated by the Chief Administrative
Law Judge, the Deputy Chief Administrative Law Judge, or an Associate
Chief Administrative Law Judge as the case may be, will rule on all
prehearing motions (except as provided in Sec. Sec. 102.16, 102.22,
102.29, and 102.50), and all such rulings and orders will be issued in
writing and a copy served on each of the parties. The Administrative Law
Judge designated to conduct the hearing will rule on all motions after
opening of the hearing (except as provided in Sec. 102.47), and any
related orders, if announced at the hearing, will be stated orally on
the record; in all other cases, the Administrative Law Judge will issue
such rulings and orders in writing and must cause a copy to be served on
each of the parties, or will make the ruling in the decision. Whenever
the Administrative Law Judge has reserved ruling on any motion, and the
proceeding is thereafter transferred to and continued before the Board
pursuant to Sec. 102.50, the Board must rule on such motion.
[[Page 47]]
Sec. 102.26 Motions; rulings and orders part of the record; rulings
not to be appealed directly to the Board without special permission;
requests for special permission to appeal.
All motions, rulings, and orders will become a part of the record,
except that rulings on motions to revoke subpoenas will become a part of
the record only upon the request of the party aggrieved thereby as
provided in Sec. 102.31. Unless expressly authorized by the Rules and
Regulations, rulings by the Regional Director or by the Administrative
Law Judge on motions and/or by the Administrative Law Judge on
objections, and related orders, may not be appealed directly to the
Board except by special permission of the Board, but will be considered
by the Board in reviewing the record if exception to the ruling or order
is included in the statement of exceptions filed with the Board pursuant
to Sec. 102.46. Requests to the Board for special permission to appeal
from a ruling of the Regional Director or of the Administrative Law
Judge, together with the appeal from such ruling, must be filed in
writing promptly and within such time as not to delay the proceeding,
and must briefly state the reasons special permission may be granted and
the grounds relied on for the appeal. The moving party must
simultaneously serve a copy of the request for special permission and of
the appeal on the other parties and, if the request involves a ruling by
an Administrative Law Judge, on the Administrative Law Judge. Any
statement in opposition or other response to the request and/or to the
appeal must be filed within 7 days of receipt of the appeal, in writing,
and must be served simultaneously on the other parties and on the
Administrative Law Judge, if any. If the Board grants the request for
special permission to appeal, it may proceed immediately to rule on the
appeal.
Sec. 102.27 Review of granting of motion to dismiss entire complaint;
reopening of the record.
If any motion in the nature of a motion to dismiss the complaint in
its entirety is granted by the Administrative Law Judge before the
filing of the Judge's decision, any party may obtain a review of such
action by filing a request with the Board in Washington, DC, stating the
grounds for review, and, immediately on such filing must serve a copy on
the Regional Director and on the other parties. Unless such request for
review is filed within 28 days from the date of the order of dismissal,
the case will be closed.
Sec. 102.28 Filing of answer or other participation in proceedings not
a waiver of rights.
The right to make motions or to make objections to rulings upon
motions will not be deemed waived by the filing of an answer or by other
participation in the proceedings before the Administrative Law Judge or
the Board.
Sec. 102.29 Intervention; requisites; rulings on motions to intervene.
Any person desiring to intervene in any proceeding must file a
motion in writing or, if made at the hearing, may move orally on the
record, stating the grounds upon which such person claims an interest.
Prior to the hearing, such a motion must be filed with the Regional
Director issuing the complaint; during the hearing, such motion must be
made to the Administrative Law Judge. Immediately upon filing a written
motion, the moving party must serve a copy on the other parties. The
Regional Director will rule upon all such motions filed prior to the
hearing, and will serve a copy of the rulings on the other parties, or
may refer the motion to the Administrative Law Judge for ruling. The
Administrative Law Judge will rule upon all such motions made at the
hearing or referred to the Judge by the Regional Director, in the manner
set forth in Sec. 102.25. The Regional Director or the Administrative
Law Judge, as the case may be, may, by order, permit intervention in
person, or by counsel or other representative, to such extent and upon
such terms as may be deemed proper.
Sec. 102.30 Depositions; examination of witnesses.
Witnesses must be examined orally under oath at a hearing, except
that for good cause shown after the issuance
[[Page 48]]
of a complaint, testimony may be taken by deposition.
(a) Applications to take depositions, including deposition testimony
contemporaneously transmitted by videoconference, must be in writing and
set forth the reasons why the depositions may be taken, the name,
mailing address and email address (if available) of the witness, the
matters concerning which it is expected the witness will testify, and
the time and place proposed for taking the deposition, together with the
name and mailing and email addresses of the person before whom it is
desired that the deposition be taken (for the purposes of this section
hereinafter referred to as the ``officer''). Such application must be
made to the Regional Director prior to the hearing, and to the
Administrative Law Judge during and subsequent to the hearing but before
transfer of the case to the Board pursuant to Sec. 102.45 or Sec.
102.50. Such application must be served on the Regional Director or the
Administrative Law Judge, as the case may be, and on all other parties,
not less than 7 days (when the deposition is to be taken within the
continental United States) and 15 days (if the deposition is to be taken
elsewhere) prior to the time when it is desired that the deposition be
taken. The Regional Director or the Administrative Law Judge, as the
case may be, will upon receipt of the application, if in the Regional
Director's or Administrative Law Judge's discretion, good cause has been
shown, make and serve on the parties an order specifying the name of the
witness whose deposition is to be taken and the time, place, and
designation of the officer before whom the witness is to testify, who
may or may not be the same officer as that specified in the application.
Such order will be served on all the other parties by the Regional
Director or on all parties by the Administrative Law Judge.
(b) The deposition may be taken before any officer authorized to
administer oaths by the laws of the United States or of the place where
the examination is held, including any Board agent authorized to
administer oaths. If the examination is held in a foreign country, it
may be taken before any secretary of embassy or legation, consul
general, consul, vice consul, or consular agent of the United States.
(c) At the time and place specified in the order, the officer
designated to take the deposition will permit the witness to be examined
and cross-examined under oath by all the parties appearing in person or
by contemporaneous transmission through videoconference, and testimony
shall be transcribed by the officer or under the officer's direction.
All objections to questions or evidence will be deemed waived unless
made at the examination. The officer will not have power to rule upon
any objections but the objections will be noted in the deposition. The
testimony must be subscribed by the witness to the satisfaction of the
officer who will attach a certificate stating that the witness was duly
sworn by the officer, that the deposition is a true record of the
testimony and exhibits given by the witness, and that the officer is not
of counsel or attorney to any of the parties nor interested in the event
of the proceeding or investigation. If the deposition is not signed by
the witness because the witness is ill, dead, cannot be found, or
refuses to sign it, such fact will be included in the certificate of the
officer and the deposition may then be used as fully as though signed.
The officer will immediately deliver the transcript, together with the
certificate, in person, by registered or certified mail, or by E-File to
the Regional Director or Division of Judges' office handling the matter.
(d) The Administrative Law Judge will rule upon the admissibility of
the deposition or any part of the deposition. A party may object to the
admissibility of deposition testimony by videoconference on grounds that
the taking of the deposition did not comply with appropriate safeguards
as set forth in Sec. 102.35(c), provided that the party opposing the
admission of the deposition raised deficiencies in safeguards at the
time of the deposition when corrections might have been made.
(e) All errors or irregularities in compliance with the provisions
of this section will be deemed waived unless a motion to suppress the
deposition in whole or part is made with reasonable
[[Page 49]]
promptness after such defect is or, with due diligence, might have been
ascertained.
(f) If the parties so stipulate in writing, depositions may be taken
before any person at any time or place, upon any notice and in any
manner, and when so taken may be used like other depositions.
(g) The official record of the deposition testimony will be the
official transcript prepared by the officer designated to transcribe the
deposition testimony.
[82 FR 11754, Feb. 24, 2017, as amended at 82 FR 43696, 43967, Sept. 19,
2017]
Sec. 102.31 Issuance of subpoenas; petitions to revoke subpoenas;
rulings on claim of privilege against self-incrimination; subpoena
enforcement proceedings; right to inspect or copy data.
(a) The Board or any Board Member will, on the written application
of any party, issue subpoenas requiring the attendance and testimony of
witnesses and the production of any evidence, including books, records,
correspondence, electronic data, or documents, in their possession or
under their control. The Executive Secretary has the authority to sign
and issue any such subpoenas on behalf of the Board or any Board Member.
Applications for subpoenas, if filed before the hearing opens, must be
filed with the Regional Director. Applications for subpoenas filed
during the hearing must be filed with the Administrative Law Judge.
Either the Regional Director or the Administrative Law Judge, as the
case may be, will grant the application on behalf of the Board or any
Member. Applications for subpoenas may be made ex parte. The subpoena
must show on its face the name and address of the party at whose request
the subpoena was issued.
(b) Any person served with a subpoena, whether ad testificandum or
duces tecum, if that person does not intend to comply with the subpoena,
must, within 5 business days after the date of service of the subpoena,
petition in writing to revoke the subpoena. The date of service for
purposes of computing the time for filing a petition to revoke is the
date the subpoena is received. All petitions to revoke subpoenas must be
served on the party at whose request the subpoena was issued. A petition
to revoke, if made prior to the hearing, must be filed with the Regional
Director and the Regional Director will refer the petition to the
Administrative Law Judge or the Board for ruling. Petitions to revoke
subpoenas filed during the hearing must be filed with the Administrative
Law Judge. Petitions to revoke subpoenas filed in response to a subpoena
issued upon request of the Agency's Contempt, Compliance, and Special
Litigation Branch must be filed with that Branch, which will refer the
petition to the Board for ruling. Notice of the filing of petitions to
revoke will be promptly given by the Regional Director, the
Administrative Law Judge, or the Contempt, Compliance and Special
Litigation Branch, as the case may be, to the party at whose request the
subpoena was issued. The Administrative Law Judge or the Board, as the
case may be, will revoke the subpoena if in their opinion the evidence
whose production is required does not relate to any matter under
investigation or in question in the proceedings or the subpoena does not
describe with sufficient particularity the evidence whose production is
required, or if for any other reason sufficient in law the subpoena is
otherwise invalid. The Administrative Law Judge or the Board, as the
case may be, will make a simple statement of procedural or other grounds
for the ruling on the petition to revoke. The petition to revoke any
opposition to the petition, response to the opposition, and ruling on
the petition will not become part of the official record except upon the
request of the party aggrieved by the ruling, at an appropriate time in
a formal proceeding rather than at the investigative stage of the
proceeding.
(c) Upon refusal of a witness to testify, the Board may, with the
approval of the Attorney General of the United States, issue an order
requiring any individual to give testimony or provide other information
at any proceeding before the Board if, in the judgment of the Board:
(1) The testimony or other information from such individual may be
necessary to the public interest; and
[[Page 50]]
(2) Such individual has refused or is likely to refuse to testify or
provide other information on the basis of the privilege against self-
incrimination. Requests for the issuance of such an order by the Board
may be made by any party. Prior to hearing, and after transfer of the
proceeding to the Board, such requests must be made to the Board in
Washington, DC, and the Board will take such action thereon as it deems
appropriate. During the hearing, and thereafter while the proceeding is
pending before the Administrative Law Judge, such requests must be made
to the Administrative Law Judge. If the Administrative Law Judge denies
the request, the ruling will be subject to appeal to the Board, in
Washington, DC, in the manner and to the extent provided in Sec. 102.26
with respect to rulings and orders by an Administrative Law Judge,
except that requests for permission to appeal in this instance must be
filed within 24 hours of the Administrative Law Judge's ruling. If no
appeal is sought within such time, or if the appeal is denied, the
ruling of the Administrative Law Judge becomes final and the denial
becomes the ruling of the Board. If the Administrative Law Judge deems
the request appropriate, the Judge will recommend that the Board seek
the approval of the Attorney General for the issuance of the order, and
the Board will take such action on the Administrative Law Judge's
recommendation as it deems appropriate. Until the Board has issued the
requested order, no individual who claims the privilege against self-
incrimination will be required or permitted to testify or to give other
information respecting the subject matter of the claim.
(d) Upon the failure of any person to comply with a subpoena issued
upon the request of a private party, the General Counsel will, in the
name of the Board but on relation of such private party, institute
enforcement proceedings in the appropriate district court, unless in the
judgment of the Board the enforcement of the subpoena would be
inconsistent with law and with the policies of the Act. Neither the
General Counsel nor the Board will be deemed thereby to have assumed
responsibility for the effective prosecution of the same before the
court.
(e) Persons compelled to submit data or evidence at a public
proceeding are entitled to retain or, on payment of lawfully prescribed
costs, to procure copies or transcripts of the data or evidence
submitted by them. Persons compelled to submit data or evidence in the
nonpublic investigative stages of proceedings may, for good cause, be
limited by the Regional Director to inspection of the official
transcript of their testimony, but must be entitled to make copies of
documentary evidence or exhibits which they have produced.
Sec. 102.32 Payment of witness fees and mileage; fees of officer who
transcribes deposition or video testimony.
Witnesses summoned before the Administrative Law Judge must be paid
the same fees and mileage that are paid witnesses in the courts of the
United States, and witnesses whose depositions are taken or who testify
by videoconference and the officer who transcribes the testimony shall
severally be entitled to the same fees as are paid for like services in
the courts of the United States, and those fees shall be paid by the
party at whose instance the deposition is taken.
[82 FR 43696, Sept. 19, 2017]
Sec. 102.33 Transfer of charge and proceeding from Region to Region;
consolidation of proceedings in same Region; severance.
(a) Whenever the General Counsel deems it necessary to effectuate
the purposes of the Act or to avoid unnecessary costs or delay, a charge
may be filed with the General Counsel in Washington, DC, or, at any time
after a charge has been filed with a Regional Director, the General
Counsel may order that such charge and any proceeding regarding the
charge be:
(1) Transferred to and continued before the General Counsel for
investigation or consolidation with any other proceeding which may have
been instituted in a Regional Office or with the General Counsel; or
[[Page 51]]
(2) Consolidated with any other proceeding which may have been
instituted in the same region; or
(3) Transferred to and continued in any other Region for the purpose
of investigation or consolidation with any proceeding which may have
been instituted in or transferred to such other region; or
(4) Severed from any other proceeding with which it may have been
consolidated pursuant to this section.
(b) The provisions of Sec. Sec. 102.9 through 102.32 will, insofar
as applicable, govern proceedings before the General Counsel, pursuant
to this section, and the powers granted to Regional Directors in such
provisions will, for the purpose of this section, be reserved to and
exercised by the General Counsel. After the transfer of any charge and
any proceeding which may have been instituted with respect thereto from
one Region to another pursuant to this section, the provisions of this
subpart will, insofar as possible, govern such charge and such
proceeding as if the charge had originally been filed in the Region to
which the transfer is made.
(c) The Regional Director may, prior to hearing, exercise the powers
in paragraphs (a)(2) and (4) of this section with respect to proceedings
pending in the Director's Region.
(d) Motions to consolidate or sever proceedings after issuance of
complaint must be filed as provided in Sec. 102.24 and ruled upon as
provided in Sec. 102.25, except that the Regional Director may
consolidate or sever proceedings prior to hearing upon the Director's
own motion. Rulings by the Administrative Law Judge upon motions to
consolidate or sever may be appealed to the Board as provided in Sec.
102.26.
Sec. 102.34 Who will conduct hearing; public unless otherwise ordered.
The hearing for the purpose of taking evidence upon a complaint will
be conducted by an Administrative Law Judge designated by the Chief
Administrative Law Judge, Deputy Chief Administrative Law Judge, or any
Associate Chief Judge, as the case may be, unless the Board or any Board
Member presides. At any time, an Administrative Law Judge may be
designated to take the place of the Administrative Law Judge previously
designated to conduct the hearing. Hearings will be public unless
otherwise ordered by the Board or the Administrative Law Judge.
Sec. 102.35 Duties and powers of Administrative Law Judges; stipulations
of cases to Administrative Law Judges or to the Board; assignment and
powers of settlement judges.
(a) The Administrative Law Judge will inquire fully into the facts
as to whether the Respondent has engaged in or is engaging in an unfair
labor practice affecting commerce as set forth in the complaint or
amended complaint. The Administrative Law Judge has authority, with
respect to cases assigned to the Judge, between the time the Judge is
designated and transfer of the case to the Board, subject to the Rules
and Regulations of the Board and within its powers, to:
(1) Administer oaths and affirmations.
(2) Grant applications for subpoenas.
(3) Rule upon petitions to revoke subpoenas.
(4) Rule upon offers of proof and receive relevant evidence.
(5) Take or cause depositions to be taken whenever the ends of
justice would be served.
(6) Regulate the course of the hearing and, if appropriate or
necessary, to exclude persons or counsel from the hearing for
contemptuous conduct and to strike all related testimony of witnesses
refusing to answer any proper question.
(7) Hold conferences for the settlement or simplification of the
issues by consent of the parties, but not to adjust cases.
(8) Dispose of procedural requests, motions, or similar matters,
including motions referred to the Administrative Law Judge by the
Regional Director and motions for default judgment, summary judgment, or
to amend pleadings; also to dismiss complaints or portions thereof; to
order hearings reopened; and, upon motion, to order proceedings
consolidated or severed prior to issuance of Administrative Law Judge
decisions.
(9) Approve stipulations, including stipulations of facts that waive
a hearing and provide for a decision by the
[[Page 52]]
Administrative Law Judge. Alternatively, the parties may agree to waive
a hearing and decision by an Administrative Law Judge and submit
directly to the Executive Secretary a stipulation of facts, which, if
approved, provides for a decision by the Board. A statement of the
issues presented may be set forth in the stipulation of facts, and each
party may also submit a short statement (no more than three pages) of
its position on the issues. If the Administrative Law Judge (or the
Board) approves the stipulation, the Judge (or the Board) will set a
time for the filing of briefs. In proceedings before an Administrative
Law Judge, no further briefs may be filed except by special leave of the
Judge. In proceedings before the Board, answering briefs may be filed
within 14 days, or such further period as the Board may allow, from the
last date on which an initial brief may be filed. No further briefs may
be filed except by special leave of the Board. At the conclusion of the
briefing schedule, the Administrative Law Judge (or the Board) will
decide the case or otherwise dispose of it.
(10) Make and file decisions, including bench decisions delivered
within 72 hours after conclusion of oral argument, in conformity with
Public Law 89-554, 5 U.S.C. 557.
(11) Call, examine, and cross-examine witnesses and to introduce
into the record documentary or other evidence.
(12) Request the parties at any time during the hearing to state
their respective positions concerning any issue in the case and/or
supporting theory(ies).
(13) Take any other necessary action authorized by the Board's
published Rules and Regulations.
(b) Upon the request of any party or of the Administrative Law Judge
assigned to hear a case, or upon the Chief Judge, Deputy Chief Judge, or
Associate Chief Judge's own motion, the Chief Judge, Deputy Chief Judge
or an Associate Chief Judge may assign a Judge other than the trial
judge to conduct settlement negotiations. In exercising this discretion,
the Chief Judge, Deputy Chief Judge, or Associate Chief Judge making the
assignment will consider, among other factors, whether there is reason
to believe that resolution of the dispute is likely, the request for
assignment of a settlement judge is made in good faith, and the
assignment is otherwise feasible. However, no such assignment will be
made absent the agreement of all parties to the use of this procedure.
(1) The settlement judge will convene and preside over conferences
and settlement negotiations between the parties, assess the
practicalities of a potential settlement, and report to the Chief Judge,
Deputy Chief Judge, or Associate Chief Judge the status of settlement
negotiations, recommending continuation or termination of the settlement
negotiations. Where feasible, settlement conferences will be held in
person.
(2) The settlement judge may require that the attorney or other
representative for each party be present at settlement conferences and
that the parties or agents with full settlement authority also be
present or available by telephone.
(3) Participation of the settlement judge will terminate upon the
order of the Chief Judge, Deputy Chief Judge, or Associate Chief Judges
issued after consultation with the settlement judge. The conduct of
settlement negotiations must not unduly delay the hearing.
(4) All discussions between the parties and the settlement judge
will be confidential. The settlement judge must not discuss any aspect
of the case with the trial judge, and no evidence regarding statements,
conduct, offers of settlement, and concessions of the parties made in
proceedings before the settlement judge will be admissible in any
proceeding before the Board, except by stipulation of the parties.
Documents disclosed in the settlement process may not be used in
litigation unless voluntarily produced or obtained pursuant to subpoena.
(5) No decision of a Chief Judge, Deputy Chief Judge, or Associate
Chief Judge concerning the assignment of a settlement judge or the
termination of a settlement judge's assignment is appealable to the
Board.
(6) Any settlement reached under the auspices of a settlement judge
is subject to approval in accordance with the
[[Page 53]]
provisions of Sec. 101.9 of the Board's Statements of Procedure.
(c) Upon a showing of good cause based on compelling circumstances,
and under appropriate safeguards, the taking of video testimony by
contemporaneous transmission from a different location may be permitted.
(1) Applications to obtain testimony by videoconference must be
presented to the Administrative Law Judge in writing, and the requesting
party must simultaneously serve notice of the application upon all
parties to the hearing. The application must set forth the compelling
circumstances for such testimony, the witness's name and address, the
location where the video testimony will be held, the matter concerning
which the witness is expected to testify, the conditions in place to
protect the integrity of the testimony, the transmission safeguards, and
the electronic address from which the video testimony will be
transmitted. Such application and any opposition must be made promptly
and within such time as not to delay the proceeding.
(2) Appropriate safeguards must ensure that the Administrative Law
Judge has the ability to assess the witness's credibility and that the
parties have a meaningful opportunity to examine and cross-examine the
witness, and must include at a minimum measures that ensure that
representatives of the parties have the opportunity to be present at the
remote location, the judge, participants, and the reporter are able to
hear the testimony and observe the witness, the camera view is
adjustable to provide a close-up view of counsel and the witness and a
panoramic view of the room, exhibits used in the witness's examination
are exchanged in advance of the examination, and video technology
assistance is available to assist with technical difficulties that arise
during the examination. The Administrative Law Judge may also impose
additional safeguards.
(3) The official record of the videoconference testimony will be the
official transcript prepared by the officer designated to transcribe the
testimony.
[82 FR 11754, Feb. 24, 2017, as amended at 82 FR 43696, Sept. 19, 2017]
Sec. 102.36 Disqualification and unavailability of Administrative
Law Judges.
(a) An Administrative Law Judge may withdraw from a proceeding
because of a personal bias or for other disqualifying reasons. Any party
may request the Administrative Law Judge, at any time following the
Judge's designation and before filing of the Judge's decision, to
withdraw on grounds of personal bias or disqualification, by filing with
the Judge promptly upon the discovery of the alleged facts a timely
affidavit setting forth in detail the matters alleged to constitute
grounds for disqualification. If, in the Administrative Law Judge's
opinion, the affidavit is filed with due diligence and is sufficient on
its face, the Judge will promptly disqualify himself/herself and
withdraw from the proceeding. If the Administrative Law Judge does not
disqualify himself/herself and withdraw from the proceeding, the Judge
must rule upon the record, stating the grounds for that ruling, and
proceed with the hearing, or, if the hearing has closed, the Judge will
proceed with issuance of the decision, and the provisions of Sec.
102.26, with respect to review of rulings of Administrative Law Judges,
will apply.
(b) If the Administrative Law Judge designated to conduct the
hearing becomes unavailable to the Board after the hearing has been
opened, the Chief Administrative Law Judge, Deputy Chief Administrative
Law Judge, or an Associate Chief Administrative Law Judge, as the case
may be, may designate another Administrative Law Judge for the purpose
of further hearing or other appropriate action.
Sec. 102.37 [Reserved]
Sec. 102.38 Rights of parties.
Any party has the right to appear at the hearing in person, by
counsel, or by other representative, to call, examine, and cross-examine
witnesses, and to introduce into the record documentary or other
evidence, except that the Administrative Law Judge may limit the
participation of any party as appropriate. Documentary evidence must be
submitted in duplicate for the record with a copy to each party.
[[Page 54]]
Sec. 102.39 Rules of evidence controlling so far as practicable.
The hearing will, so far as practicable, be conducted in accordance
with the rules of evidence applicable in the district courts of the
United States under the rules of civil procedure for the district courts
of the United States, adopted by the Supreme Court of the United States
pursuant to the Act of June 19, 1934 (U.S.C., title 28, Sections 723-B,
723-C).
Sec. 102.40 Stipulations of fact admissible.
Stipulations of fact may be introduced in evidence with respect to
any issue.
Sec. 102.41 Objection to conduct of hearing; how made; objections not
waived by further participation.
Any objection with respect to the conduct of the hearing, including
any objection to the introduction of evidence, may be stated orally or
in writing, accompanied by a short statement of the grounds of such
objection, and included in the record. No such objection will be deemed
waived by further participation in the hearing.
Sec. 102.42 Filings of briefs and proposed findings with the Administrative
Law Judge and oral argument at the hearing.
Any party is entitled, upon request, to oral argument, for a
reasonable period at the close of the hearing. Oral argument and any
presentation of proposed findings and conclusions will be included in
the transcript of the hearing. In the discretion of the Administrative
Law Judge, any party may, upon request made before the close of the
hearing, file a brief or proposed findings and conclusions, or both,
with the Administrative Law Judge, who may fix a reasonable time for
such filing, but not in excess of 35 days from the close of the hearing.
Requests for further extensions of time must be made to the Chief
Administrative Law Judge, Deputy Chief Administrative Law Judge, or an
Associate Chief Administrative Law Judge, as the case may be. Notice of
the request for any extension must be immediately served on all other
parties, and proof of service must be furnished. The brief or proposed
findings and conclusions must be served on the other parties, and a
statement of such service must be furnished. In any case in which the
Administrative Law Judge believes that written briefs or proposed
findings of fact and conclusions may not be necessary, the Judge must
notify the parties at the opening of the hearing or as soon thereafter
as practicable that the Judge may wish to hear oral argument in lieu of
briefs.
Sec. 102.43 Continuance and adjournment.
In the Administrative Law Judge's discretion, the hearing may be
continued from day to day, or adjourned to a later date or to a
different place, by announcement at the hearing by the Administrative
Law Judge, or by other appropriate notice.
Sec. 102.44 [Reserved]
Sec. 102.45 Administrative Law Judge's decision; contents of record;
alternative dispute resolution program.
(a) Administrative Law Judge's decision. After a hearing for the
purpose of taking evidence upon a complaint, the Administrative Law
Judge will prepare a decision. The decision will contain findings of
fact, conclusions of law, and the reasons or grounds for the findings
and conclusions, and recommendations for the proper disposition of the
case. If the Respondent is found to have engaged in the alleged unfair
labor practices, the decision will also contain a recommendation for
such affirmative action by the Respondent as will effectuate the
policies of the Act. The Administrative Law Judge will file the decision
with the Board. If the Judge delivers a bench decision, promptly upon
receiving the transcript the Judge will certify the accuracy of the
pages of the transcript containing the decision; file with the Board a
certified copy of those pages, together with any supplementary matter
the Judge may deem necessary to complete the decision; and serve a copy
on each of the parties. Upon the filing of the decision, the Board will
enter an order transferring the case to the Board, setting forth the
date of the transfer and will serve on all the parties copies of the
decision and the order. Service of the
[[Page 55]]
Administrative Law Judge's decision and of the order transferring the
case to the Board is complete upon mailing.
(b) Contents of record. The charge upon which the complaint was
issued and any amendments, the complaint and any amendments, notice of
hearing, answer and any amendments, motions, rulings, orders, the
transcript of the hearing, stipulations, exhibits, documentary evidence,
and depositions, together with the Administrative Law Judge's decision
and exceptions, and any cross-exceptions or answering briefs as provided
in Sec. 102.46, constitutes the record in the case.
(c) Alternative dispute resolution program. The Alternative Dispute
Resolution (ADR) Program is available to parties with unfair labor
practice or compliance cases pending before the Board at any stage
subsequent to the initial issuance of an Administrative Law Judge's
decision or any other process involving the transfer to the Board of
such cases. Participation in the ADR Program is voluntary, and a party
that enters the ADR Program may withdraw any time after the first
meeting with the neutral. No party will be charged fees or expenses for
using the ADR Program.
(1) The parties may request participation in the ADR Program by
contacting the program director. Deadlines for filing pleadings with the
Board will be stayed effective the date that the case enters the ADR
Program. If the case is removed from the ADR Program, the time period
for filing will begin to run and will consist of the time period that
remained when the case entered the ADR Program. Notice will be provided
to the parties of the date the case enters the ADR Program and the date
it is removed from the ADR Program.
(2) A case may remain in the ADR Program for 28 days from the first
settlement meeting or until the parties reach a settlement, whichever
occurs first. A request for extension of the stay beyond the 28 days
will be granted only with the approval and in the discretion of both the
neutral and the program director upon a showing that such an extension
is supported by good cause.
(3) Once the case enters the ADR Program, the program director will
arrange for the appointment of a neutral to assist the parties in
settling the case.
(4) The preferred method of conducting settlement conferences is to
have the parties or their representatives attend in person, and
therefore the neutral will make every reasonable effort to meet with the
participants face-to-face at the parties' location. Settlement
conferences by telephone or through videoconference may be held if the
parties so desire.
(5) Parties may be represented by counsel at the conferences, but
representation by counsel is not required. However, each party must have
in attendance a representative who has the authority to bind the party
to the terms of a settlement agreement.
(6) The neutral may ask the parties to submit pre-conference memos
setting forth the issues in dispute, prior settlement efforts, and
anything else that the parties would like to bring to the neutral's
attention. A party's memo will be treated as a confidential submission
unless the party that prepared the memo authorizes its release to the
other parties.
(7) Settlement discussions held under the ADR Program will be
confidential. All documents submitted to the neutral and statements made
during the ADR proceedings, including proposed settlement terms, are for
settlement purposes only and are confidential. However, evidence
otherwise admissible or discoverable will not be rendered inadmissible
or undiscoverable because of its use in the ADR proceedings. No evidence
as to what transpired during the ADR proceedings will be admissible in
any administrative or court proceeding except to the extent it is
relevant to determining the existence or meaning of a settlement
agreement. The parties and their representatives will not discuss with
the press any matters concerning settlement positions communicated
during the ADR proceedings except by express written permission of the
other parties. There will be no communication between the
[[Page 56]]
ADR Program and the Board on specific cases submitted to the ADR
Program, except for procedural information such as case name, number,
timing of the process, and status.
(8) The neutral has no authority to impose a settlement. Settlement
agreements are subject to approval by the Board in accordance with its
existing procedures for approving settlements.
(9) No party will at any time or in any proceeding take the position
that participation in the ADR Program resulted in the waiver of any
legal rights related to the underlying claims in the case, except as set
forth in any settlement agreement.
(10) Nothing in the ADR Program is intended to discourage or
interfere with settlement negotiations that the parties wish to conduct
outside the ADR Program.
Sec. 102.46 Exceptions and brief in support; answering briefs to exceptions;
cross-exceptions and brief in support; answering briefs to cross-exceptions;
reply briefs; failure to except; oral argument; filing requirements;
amicus curiae briefs.
(a) Exceptions and brief in support. Within 28 days, or within such
further period as the Board may allow, from the date of the service of
the order transferring the case to the Board, pursuant to Sec. 102.45,
any party may (in accordance with Section 10(c) of the Act and
Sec. Sec. 102.2 through 102.5 and 102.7) file with the Board in
Washington, DC, exceptions to the Administrative Law Judge's decision or
to any other part of the record or proceedings (including rulings upon
all motions or objections), together with a brief in support of the
exceptions. The filing of exceptions and briefs is subject to the filing
requirements of paragraph (h) of this section
(1) Exceptions. (i) Each exception must:
(A) Specify the questions of procedure, fact, law, or policy to
which exception is taken;
(B) Identify that part of the Administrative Law Judge's decision to
which exception is taken;
(C) Provide precise citations of the portions of the record relied
on; and
(D) Concisely state the grounds for the exception. If a supporting
brief is filed, the exceptions document must not contain any argument or
citation of authorities in support of the exceptions; any argument and
citation of authorities must be set forth only in the brief. If no
supporting brief is filed, the exceptions document must also include the
citation of authorities and argument in support of the exceptions, in
which event the exceptions document is subject to the 50-page limit for
briefs set forth in paragraph (h) of this section.
(ii) Any exception to a ruling, finding, conclusion, or
recommendation which is not specifically urged will be deemed to have
been waived. Any exception which fails to comply with the foregoing
requirements may be disregarded.
(2) Brief in support of exceptions. Any brief in support of
exceptions must contain only matter that is included within the scope of
the exceptions and must contain, in the order indicated, the following:
(i) A clear and concise statement of the case containing all that is
material to the consideration of the questions presented.
(ii) A specification of the questions involved and to be argued,
together with a reference to the specific exceptions to which they
relate.
(iii) The argument, presenting clearly the points of fact and law
relied on in support of the position taken on each question, with
specific page citations to the record and the legal or other material
relied on.
(b) Answering briefs to exceptions. (1) Within 14 days, or such
further period as the Board may allow, from the last date on which
exceptions and any supporting brief may be filed, a party opposing the
exceptions may file an answering brief to the exceptions, in accordance
with the filing requirements of paragraph (h) of this section.
(2) The answering brief to the exceptions must be limited to the
questions raised in the exceptions and in the brief in support. It must
present clearly the points of fact and law relied on in support of the
position taken on each question. Where exception has been taken to a
factual finding of the Administrative Law Judge and the party filing the
answering brief proposes to support the Judge's finding,
[[Page 57]]
the answering brief must specify those pages of the record which the
party contends support the Judge's finding.
(c) Cross-exceptions and brief in support. Any party who has not
previously filed exceptions may, within 14 days, or such further period
as the Board may allow, from the last date on which exceptions and any
supporting brief may be filed, file cross-exceptions to any portion of
the Administrative Law Judge's decision, together with a supporting
brief, in accordance with the provisions of paragraphs (a) and (h) of
this section.
(d) Answering briefs to cross-exceptions. Within 14 days, or such
further period as the Board may allow, from the last date on which
cross-exceptions and any supporting brief may be filed, any other party
may file an answering brief to such cross-exceptions in accordance with
the provisions of paragraphs (b) and (h) of this section. Such answering
brief must be limited to the questions raised in the cross-exceptions.
(e) Reply briefs. Within 14 days from the last date on which an
answering brief may be filed pursuant to paragraphs (b) or (d) of this
section, any party may file a reply brief to any such answering brief.
Any reply brief filed pursuant to this paragraph (e) must be limited to
matters raised in the brief to which it is replying, and must not exceed
10 pages. No extensions of time will be granted for the filing of reply
briefs, nor will permission be granted to exceed the 10-page limit. The
reply brief must be filed with the Board and served on the other
parties. No further briefs may be filed except by special leave of the
Board. Requests for such leave must be in writing and copies must be
served simultaneously on the other parties.
(f) Failure to except. Matters not included in exceptions or cross-
exceptions may not thereafter be urged before the Board, or in any
further proceeding.
(g) Oral argument. A party desiring oral argument before the Board
must request permission from the Board in writing simultaneously with
the filing of exceptions or cross-exceptions. The Board will notify the
parties of the time and place of oral argument, if such permission is
granted. Oral arguments are limited to 30 minutes for each party
entitled to participate. No request for additional time will be granted
unless timely application is made in advance of oral argument.
(h) Filing requirements. Documents filed pursuant to this section
must be filed with the Board in Washington, DC, and copies must also be
served simultaneously on the other parties. Any brief filed pursuant to
this section must not be combined with any other brief, and except for
reply briefs whose length is governed by paragraph (e) of this section,
must not exceed 50 pages in length, exclusive of subject index and table
of cases and other authorities cited.
(i) Amicus curiae briefs. Amicus curiae briefs will be accepted only
by permission of the Board. Motions for permission to file an amicus
brief must state the bases of the movant's interest in the case and why
the brief will be of benefit to the Board in deciding the matters at
issue. Unless the Board directs otherwise, the following procedures will
apply.
(1) The Board will consider motions to file an amicus brief only
when: (a) A party files exceptions to an Administrative Law Judge's
decision; or (b) a case is remanded by the court of appeals and the
Board requests briefing from the parties.
(2) In circumstances where a party files exceptions to an
Administrative Law Judge's decision, the motion must be filed with the
Office of the Executive Secretary of the Board no later than 42 days
after the filing of exceptions, or in the event cross-exceptions are
filed, no later than 42 days after the filing of cross-exceptions. Where
a case has been remanded by the court of appeals, the motion must be
filed no later than 21 days after the parties file statements of
position on remand. A motion filed outside these time periods must be
supported by a showing of good cause. The motion will not operate to
stay the issuance of a Board decision upon completion of the briefing
schedule for the parties.
(3) The motion must be accompanied by the proposed amicus brief and
must comply with the service and form prescribed by Sec. 102.5. The
brief may be no more than 25 pages in length.
[[Page 58]]
(4) A party may file a reply to the motion within 7 days of service
of the motion. A party may file an answering brief to the amicus brief
within 14 days of issuance of the Board's order granting permission to
file the amicus brief. Replies to an answering brief will not be
permitted.
(5) The Board may direct the Executive Secretary to solicit amicus
briefs. In such cases, the Executive Secretary will specify in the
invitation the due date and page length for solicited amicus briefs, and
the deadline for the parties to file answering briefs. Absent compelling
reasons, no extensions of time will be granted for filing solicited
amicus briefs or answering briefs.
[82 FR 11754, Feb. 24, 2017, as amended at 82 FR 43696, Sept. 19, 2017]
Sec. 102.47 Filing of motion after transfer of case to Board.
All motions filed after the case has been transferred to the Board
pursuant to Sec. 102.45 must be filed with the Board in Washington, DC,
and served upon the other parties. Such motions must be printed or
otherwise legibly duplicated.
Sec. 102.48 No exceptions filed; exceptions filed; motions for
reconsideration, rehearing, or reopening the record.
(a) No exceptions filed. If no timely or proper exceptions are
filed, the findings, conclusions, and recommendations contained in the
Administrative Law Judge's decision will, pursuant to Section 10(c) of
the Act, automatically become the decision and order of the Board and
become its findings, conclusions, and order, and all objections and
exceptions must be deemed waived for all purposes.
(b) Exceptions filed. (1) Upon the filing of timely and proper
exceptions, and any cross-exceptions or answering briefs, as provided in
Sec. 102.46, the Board may decide the matter upon the record, or after
oral argument, or may reopen the record and receive further evidence
before a Board Member or other Board agent or agency, or otherwise
dispose of the case.
(2) Where exception is taken to a factual finding of the
Administrative Law Judge, the Board, in determining whether the finding
is contrary to a preponderance of the evidence, may limit its
consideration to such portions of the record as are specified in the
exceptions, the supporting brief, and the answering brief.
(c) Motions for reconsideration, rehearing, or reopening the record.
A party to a proceeding before the Board may, because of extraordinary
circumstances, move for reconsideration, rehearing, or reopening of the
record after the Board decision or order.
(1) A motion for reconsideration must state with particularity the
material error claimed and with respect to any finding of material fact,
must specify the page of the record relied on. A motion for rehearing
must specify the error alleged to require a hearing de novo and the
prejudice to the movant from the error. A motion to reopen the record
must state briefly the additional evidence sought to be adduced, why it
was not presented previously, and that, if adduced and credited, it
would require a different result. Only newly discovered evidence,
evidence which has become available only since the close of the hearing,
or evidence which the Board believes may have been taken at the hearing
will be taken at any further hearing.
(2) Any motion pursuant to this section must be filed within 28
days, or such further period as the Board may allow, after the service
of the Board's decision or order, except that a motion to reopen the
record must be filed promptly on discovery of the evidence to be
adduced.
(3) The filing and pendency of a motion under this provision will
not stay the effectiveness of the action of the Board unless so ordered.
A motion for reconsideration or rehearing need not be filed to exhaust
administrative remedies.
Sec. 102.49 Modification or setting aside of Board order before
record filed in court; action thereafter.
Within the limitations of the provisions of Section 10(c) of the
Act, and Sec. 102.48, until a transcript of the record in a case is
filed in a court, within the meaning of Section 10 of the Act, the Board
may at any time upon reasonable notice modify or set aside, in
[[Page 59]]
whole or in part, any findings of fact, conclusions of law, or order
made or issued by it. Thereafter, the Board may proceed pursuant to
Sec. 102.50, insofar as applicable.
Sec. 102.50 Hearings before the Board or a Board Member.
Whenever the Board deems it necessary to effectuate the purposes of
the Act or to avoid unnecessary costs or delay, it may, at any time,
after a complaint has issued pursuant to Sec. 102.15 or Sec. 102.33,
order that such complaint and any proceeding which may have been
instituted with respect thereto be transferred to and continued before
it or any Board Member. The provisions of this subpart, insofar as
applicable, govern proceedings before the Board or any Board Member
pursuant to this section, and the powers granted to Administrative Law
Judges in such provisions will, for the purpose of this section, be
reserved to and exercised by the Board or the Board Member who will
preside.
Sec. 102.51 Settlement or adjustment of issues.
At any stage of a proceeding prior to hearing, where time, the
nature of the proceeding, and the public interest permit, all interested
parties have an opportunity to submit to the Regional Director, with
whom the charge was filed, for consideration, facts, arguments, offers
of settlement, or proposals of adjustment.
Sec. 102.52 Compliance with Board order; notification of compliance
determination.
After entry of a Board order directing remedial action, or the entry
of a court judgment enforcing such order, the Regional Director will
seek compliance from all persons having obligations under the order. As
appropriate, the Regional Director will make a compliance determination
and notify the parties of that determination. A Charging Party adversely
affected by a monetary, make-whole, reinstatement, or other compliance
determination will be provided, on request, with a written statement of
the basis for that determination.
Sec. 102.53 Appeal of compliance determination to the General Counsel;
General Counsel's action; request for review by the Board; Board action;
opposition to appeal or request for review.
(a) Appeal of compliance determination to the General Counsel. The
Charging Party may appeal a compliance determination to the General
Counsel in Washington, DC, within 14 days of the written statement of
compliance determination as set forth in Sec. 102.52. The appeal must
contain a complete statement setting forth the facts and reasons upon
which it is based and must identify with particularity the error claimed
in the Regional Director's determination. The General Counsel may for
good cause shown extend the time for filing an appeal.
(b) General Counsel's action. The General Counsel may affirm or
modify the Regional Director's determination or take such other action
deemed appropriate, and must state the grounds for that decision.
(c) Request for review by Board. Within 14 days after service of the
General Counsel's decision, the Charging Party may file a request for
review of that decision with the Board in Washington, DC. The request
for review must contain a complete statement of the facts and reasons
upon which it is based and must identify with particularity the error
claimed in the General Counsel's decision. A copy of the request for
review must be served simultaneously on all other parties and on the
General Counsel and the Regional Director.
(d) Board action. The Board may affirm or modify the General
Counsel's decision, or otherwise dispose of the matter as it deems
appropriate. The denial of the request for review will constitute an
affirmance of the General Counsel's decision.
(e) Opposition to appeal or request for review. Within 7 days of
receipt of a compliance appeal or request for review, a party may file
an opposition to the compliance appeal or request for review.
[[Page 60]]
Sec. 102.54 Issuance of compliance specification; consolidation of
complaint and compliance specification.
(a) If it appears that controversy exists with respect to compliance
with a Board order which cannot be resolved without a formal proceeding,
the Regional Director may issue and serve on all parties a compliance
specification in the name of the Board. The specification will contain
or be accompanied by a Notice of Hearing before an Administrative Law
Judge at a specific place and at a time not less than 21 days after the
service of the specification.
(b) Whenever the Regional Director deems it necessary to effectuate
the purposes and policies of the Act or to avoid unnecessary costs or
delay, the Regional Director may issue a compliance specification, with
or without a notice of hearing, based on an outstanding complaint.
(c) Whenever the Regional Director deems it necessary to effectuate
the purposes and policies of the Act or to avoid unnecessary costs or
delay, the Regional Director may consolidate with a complaint and Notice
of Hearing issued pursuant to Sec. 102.15 a compliance specification
based on that complaint. After opening of the hearing, the Board or the
Administrative Law Judge, as appropriate, must approve consolidation.
Issuance of a compliance specification is not a prerequisite or bar to
Board initiation of proceedings in any administrative or judicial forum
which the Board or the Regional Director determines to be appropriate
for obtaining compliance with a Board order.
Sec. 102.55 Contents of compliance specification.
(a) Contents of specification with respect to allegations concerning
the amount of backpay due. With respect to allegations concerning the
amount of backpay due, the specification will specifically and in detail
show, for each employee, the backpay periods broken down by calendar
quarters, the specific figures and basis of computation of gross backpay
and interim earnings, the expenses for each quarter, the net backpay
due, and any other pertinent information.
(b) Contents of specification with respect to allegations other than
the amount of backpay due. With respect to allegations other than the
amount of backpay due, the specification will contain a clear and
concise description of the respects in which the Respondent has failed
to comply with a Board or court order, including the remedial acts
claimed to be necessary for compliance by the Respondent and, where
known, the approximate dates, places, and names of the Respondent's
agents or other representatives described in the specification.
(c) Amendments to specification. After the issuance of the Notice of
Compliance Hearing but before the hearing opens, the Regional Director
may amend the specification. After the hearing opens, the specification
may be amended upon leave of the Administrative Law Judge or the Board,
upon good cause shown.
Sec. 102.56 Answer to compliance specification.
(a) Filing and service of answer to compliance specification. Each
Respondent alleged in the specification to have compliance obligations
must, within 21 days from the service of the specification, file an
answer with the Regional Director issuing the specification, and must
immediately serve a copy on the other parties.
(b) Form and contents of answer. The answer to the specification
must be in writing, signed and sworn to by the Respondent or by a duly
authorized agent with appropriate power of attorney affixed, and contain
the address of the Respondent. The answer must specifically admit, deny,
or explain each allegation of the specification, unless the Respondent
is without knowledge, in which case the Respondent must so state, such
statement operating as a denial. Denials must fairly meet the substance
of the allegations of the specification at issue. When a Respondent
intends to deny only a part of an allegation, the Respondent must
specify so much of it as is true and deny only the remainder. As to all
matters within the knowledge of the Respondent, including but not
limited to the various factors entering into the computation of gross
backpay, a general
[[Page 61]]
denial will not suffice. As to such matters, if the Respondent disputes
either the accuracy of the figures in the specification or the premises
on which they are based, the answer must specifically state the basis
for such disagreement, setting forth in detail the Respondent's position
and furnishing the appropriate supporting figures.
(c) Failure to answer or to plead specifically and in detail to
backpay allegations of specification. If the Respondent fails to file
any answer to the specification within the time prescribed by this
section, the Board may, either with or without taking evidence in
support of the allegations of the specification and without further
notice to the Respondent, find the specification to be true and enter
such order as may be appropriate. If the Respondent files an answer to
the specification but fails to deny any allegation of the specification
in the manner required by paragraph (b) of this section, and the failure
to deny is not adequately explained, such allegation will be deemed
admitted as true, and may be so found by the Board without the taking of
evidence supporting such allegation, and the Respondent will be
precluded from introducing any evidence controverting the allegation.
(d) Extension of time for filing answer to specification. Upon the
Regional Director's own motion or upon proper cause shown by any
Respondent, the Regional Director issuing the compliance specification
may, by written order, extend the time within which the answer to the
specification must be filed.
(e) Amendment to answer. Following the amendment of the
specification by the Regional Director, any Respondent affected by the
amendment may amend its answer.
Sec. 102.57 Extension of date of hearing.
Upon the Regional Director's own motion or upon proper cause shown,
the Regional Director issuing the compliance specification and Notice of
Hearing may extend the hearing date.
Sec. 102.58 Withdrawal of compliance specification.
Any compliance specification and Notice of Hearing may be withdrawn
before the hearing by the Regional Director upon the Director's own
motion.
Sec. 102.59 Hearing and posthearing procedures.
After the issuance of a compliance specification and Notice of
Hearing, the procedures provided in Sec. Sec. 102.24 through 102.51
will be followed insofar as applicable.
Subpart D_Procedure Under Section 9(c) of the Act for the Determination
of Questions Concerning Representation of Employees \2\ and for
Clarification of Bargaining Units and for Amendment of Certifications
Under Section 9(b) of the Act
---------------------------------------------------------------------------
\2\ Procedure under the first proviso to sec. 8(b)(7)(C) of the Act
is governed by subpart D of this part.
Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted.
Redesignated at 82 FR 11754, Feb. 24, 2017.
Sec. 102.60 Petitions.
(a) Petition for certification or decertification. A petition for
investigation of a question concerning representation of employees under
paragraphs (1)(A)(i) and (1)(B) of Section 9(c) of the Act (hereinafter
called a petition for certification) may be filed by an employee or
group of employees or any individual or labor organization acting in
their behalf or by an employer. A petition under paragraph (1)(A)(ii) of
Section 9(c) of the Act, alleging that the individual or labor
organization which has been certified or is being currently recognized
as the bargaining representative is no longer such representative
(hereinafter called a petition for decertification), may be filed by any
employee or group of employees or any individual or labor organization
acting in their behalf. Petitions under this section shall be in writing
and signed, and either shall be sworn to before a notary public, Board
agent, or other person duly authorized by law to administer oaths and
take acknowledgments or shall contain a declaration by the person
signing it, under the penalty of
[[Page 62]]
perjury, that its contents are true and correct (see 28 U.S.C. 1746).
One original of the petition shall be filed, and a copy served on all
parties named in the petition. A person filing a petition by facsimile
pursuant to Sec. 102.5(e) shall also file an original for the Agency's
records, but failure to do so shall not affect the validity of the
filing by facsimile, if otherwise proper. A person filing a petition
electronically pursuant to Sec. 102.5(c) need not file an original.
Except as provided in Sec. 102.72, such petitions shall be filed with
the Regional Director for the Region wherein the bargaining unit exists,
or, if the bargaining unit exists in two or more Regions, with the
Regional Director for any of such Regions. A certificate of service on
all parties named in the petition shall also be filed with the Regional
Director when the petition is filed. Along with the petition, the
petitioner shall serve the Agency's description of the procedures in
representation cases and the Agency's Statement of Position form on all
parties named in the petition. Prior to the transfer of the record to
the Board, the petition may be withdrawn only with the consent of the
Regional Director with whom such petition was filed. After the transfer
of the record to the Board, the petition may be withdrawn only with the
consent of the Board. Whenever the Regional Director or the Board, as
the case may be, approves the withdrawal of any petition, the case shall
be closed.
(b) Petition for clarification of bargaining unit or petition for
amendment of certification. A petition for clarification of an existing
bargaining unit or a petition for amendment of certification, in the
absence of a question of representation, may be filed by a labor
organization or by an employer. Where applicable the same procedures set
forth in paragraph (a) of this section shall be followed.
[84 FR 69588, Dec. 18, 2019]
Sec. 102.61 Contents of petition for certification; contents of
petition for decertification; contents of petition for clarification of
bargaining unit; contents of petition for amendment of certification.
(a) RC petitions. A petition for certification, when filed by an
employee or group of employees or an individual or labor organization
acting in their behalf, shall contain the following:
(1) The name of the employer.
(2) The address of the establishments involved.
(3) The general nature of the employer's business.
(4) A description of the bargaining unit which the petitioner claims
to be appropriate.
(5) The names and addresses of any other persons or labor
organizations who claim to represent any employees in the alleged
appropriate unit, and brief descriptions of the contracts, if any,
covering the employees in such unit.
(6) The number of employees in the alleged appropriate unit.
(7) A statement that a substantial number of employees in the
described unit wish to be represented by the petitioner. Evidence
supporting the statement shall be filed with the petition in accordance
with paragraph (f) of this section, but shall not be served on any
party.
(8) A statement that the employer declines to recognize the
petitioner as the representative within the meaning of Section 9(a) of
the Act or that the labor organization is currently recognized but
desires certification under the Act.
(9) The name, affiliation, if any, and address of the petitioner,
and the name, title, address, telephone number, facsimile number, and
email address of the individual who will serve as the representative of
the petitioner and accept service of all papers for purposes of the
representation proceeding.
(10) Whether a strike or picketing is in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(11) Any other relevant facts.
[[Page 63]]
(12) The type, date(s), time(s) and location(s) of the election
sought.
(b) RM petitions. A petition for certification, when filed by an
employer, shall contain the following:
(1) The name and address of the petitioner, and the name, title,
address, telephone number, facsimile number, and email address of the
individual who will serve as the representative of the petitioner and
accept service of all papers for purposes of the representation
proceeding.
(2) The general nature of the petitioner's business.
(3) A brief statement setting forth that one or more individuals or
labor organizations have presented to the petitioner a claim to be
recognized as the exclusive representative of all employees in the unit
claimed to be appropriate; a description of such unit; and the number of
employees in the unit.
(4) The name or names, affiliation, if any, and addresses of the
individuals or labor organizations making such claim for recognition.
(5) A statement whether the petitioner has contracts with any labor
organization or other representatives of employees and, if so, their
expiration date(s).
(6) Whether a strike or picketing is in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(7) Any other relevant facts.
(8) Evidence supporting the statement that a labor organization has
made a demand for recognition on the employer or that the employer has
good faith uncertainty about majority support for an existing
representative. Such evidence shall be filed together with the petition,
but if the evidence reveals the names and/or number of employees who no
longer wish to be represented, the evidence shall not be served on any
party. However, no proof of representation on the part of the labor
organization claiming a majority is required and the Regional Director
shall proceed with the case if other factors require it unless the labor
organization withdraws its claim to majority representation.
(9) The type, date(s), time(s) and location(s) of the election
sought.
(c) RD petitions. Petitions for decertification shall contain the
following:
(1) The name of the employer.
(2) The address of the establishments and a description of the
bargaining unit involved.
(3) The general nature of the employer's business.
(4) The name and address of the petitioner and affiliation, if any,
and the name, title, address, telephone number, facsimile number, and
email address of the individual who will serve as the representative of
the petitioner and accept service of all papers for purposes of the
representation proceeding.
(5) The name or names and addresses of the individuals or labor
organizations who have been certified or are being currently recognized
by the employer and who claim to represent any employees in the unit
involved, and the expiration date of any contracts covering such
employees.
(6) An allegation that the individuals or labor organizations who
have been certified or are currently recognized by the employer are no
longer the representative in the appropriate unit as defined in Section
9(a) of the Act.
(7) The number of employees in the unit.
(8) A statement that a substantial number of employees in the
described unit no longer wish to be represented by the incumbent
representative. Evidence supporting the statement shall be filed with
the petition in accordance with paragraph (f) of this section, but shall
not be served on any party.
(9) Whether a strike or picketing is in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(10) Any other relevant facts.
(11) The type, date(s), time(s) and location(s) of the election
sought.
(d) UC petitions. A petition for clarification shall contain the
following:
(1) The name of the employer and the name of the recognized or
certified bargaining representative.
(2) The address of the establishment involved.
(3) The general nature of the employer's business.
(4) A description of the present bargaining unit, and, if the
bargaining
[[Page 64]]
unit is certified, an identification of the existing certification.
(5) A description of the proposed clarification.
(6) The names and addresses of any other persons or labor
organizations who claim to represent any employees affected by the
proposed clarifications, and brief descriptions of the contracts, if
any, covering any such employees.
(7) The number of employees in the present bargaining unit and in
the unit as proposed under the clarification.
(8) The job classifications of employees as to whom the issue is
raised, and the number of employees in each classification.
(9) A statement by petitioner setting forth reasons why petitioner
desires clarification of unit.
(10) The name, the affiliation, if any, and the address of the
petitioner, and the name, title, address, telephone number, facsimile
number, and email address of the individual who will serve as the
representative of the petitioner and accept service of all papers for
purposes of the representation proceeding.
(11) Any other relevant facts.
(e) AC petitions. A petition for amendment of certification shall
contain the following:
(1) The name of the employer and the name of the certified union
involved.
(2) The address of the establishment involved.
(3) The general nature of the employer's business.
(4) Identification and description of the existing certification.
(5) A statement by petitioner setting forth the details of the
desired amendment and reasons therefor.
(6) The names and addresses of any other persons or labor
organizations who claim to represent any employees in the unit covered
by the certification and brief descriptions of the contracts, if any,
covering the employees in such unit.
(7) The name, the affiliation, if any, and the address of the
petitioner, and the name, title, address, telephone number, facsimile
number, and email address of the individual who will serve as the
representative of the petitioner and accept service of all papers for
purposes of the representation proceeding.
(8) Any other relevant facts.
(f) Provision of original signatures. Evidence filed pursuant to
paragraph (a)(7), (b)(8), or (c)(8) of this section together with a
petition that is filed by facsimile or electronically, which includes
original signatures that cannot be transmitted in their original form by
the method of filing of the petition, may be filed by facsimile or in
electronic form provided that the original documents are received by the
Regional Director no later than 2 business days after the facsimile or
electronic filing.
[84 FR 69588, Dec. 18, 2019]
Sec. 102.62 Election agreements; voter list; Notice of Election.
(a) Consent-election agreements with final Regional Director
determinations of post-election disputes. Where a petition has been duly
filed, the employer and any individual or labor organizations
representing a substantial number of employees involved may, with the
approval of the Regional Director, enter into an agreement providing for
the waiver of a hearing and for an election and further providing that
post-election disputes will be resolved by the Regional Director. Such
agreement, referred to as a consent election agreement, shall include a
description of the appropriate unit, the time and place of holding the
election, and the payroll period to be used in determining what
employees within the appropriate unit shall be eligible to vote. Such
election shall be conducted under the direction and supervision of the
Regional Director. The method of conducting such election shall be
consistent with the method followed by the Regional Director in
conducting elections pursuant to Sec. Sec. 102.69 and 102.70 except
that the rulings and determinations by the Regional Director of the
results thereof shall be final, and the Regional Director shall issue to
the parties a certification of the results of the election, including
certifications of representative where appropriate, with the same force
and effect, in that case, as if issued by the Board, and except that
rulings or determinations by the Regional Director in respect to any
amendment of such certification shall also be final.
[[Page 65]]
(b) Stipulated election agreements with discretionary Board review.
Where a petition has been duly filed, the employer and any individuals
or labor organizations representing a substantial number of the
employees involved may, with the approval of the Regional Director,
enter into an agreement providing for the waiver of a hearing and for an
election as described in paragraph (a) of this section and further
providing that the parties may request Board review of the Regional
Director's resolution of post-election disputes. Such agreement,
referred to as a stipulated election agreement, shall also include a
description of the appropriate bargaining unit, the time and place of
holding the election, and the payroll period to be used in determining
which employees within the appropriate unit shall be eligible to vote.
Such election shall be conducted under the direction and supervision of
the Regional Director. The method of conducting such election and the
post-election procedure shall be consistent with that followed by the
Regional Director in conducting elections pursuant to Sec. Sec. 102.69
and 102.70.
(c) Full consent election agreements with final Regional Director
determinations of pre- and post-election disputes. Where a petition has
been duly filed, the employer and any individual or labor organizations
representing a substantial number of the employees involved may, with
the approval of the Regional Director, enter into an agreement, referred
to as a full consent election agreement, providing that pre- and post-
election disputes will be resolved by the Regional Director. Such
agreement provides for a hearing pursuant to Sec. Sec. 102.63, 102.64,
102.65, 102.66, and 102.67 to determine if a question of representation
exists. Upon the conclusion of such a hearing, the Regional Director
shall issue a decision. The rulings and determinations by the Regional
Director thereunder shall be final, with the same force and effect, in
that case, as if issued by the Board. Any election ordered by the
Regional Director shall be conducted under the direction and supervision
of the Regional Director. The method of conducting such election shall
be consistent with the method followed by the Regional Director in
conducting elections pursuant to Sec. Sec. 102.69 and 102.70, except
that the rulings and determinations by the Regional Director of the
results thereof shall be final, and the Regional Director shall issue to
the parties a certification of the results of the election, including
certifications of representative where appropriate, with the same force
and effect, in that case, as if issued by the Board, and except that
rulings or determinations by the Regional Director in respect to any
amendment of such certification shall also be final.
(d) Voter list. Absent agreement of the parties to the contrary
specified in the election agreement or extraordinary circumstances
specified in the direction of election, within 2 business days after the
approval of an election agreement pursuant to paragraph (a) or (b) of
this section, or issuance of a direction of election pursuant to
paragraph (c) of this section, the employer shall provide to the
Regional Director and the parties named in the agreement or direction a
list of the full names, work locations, shifts, job classifications, and
contact information (including home addresses, available personal email
addresses, and available home and personal cellular ``cell'' telephone
numbers) of all eligible voters. The employer shall also include in
separate sections of that list the same information for those
individuals who will be permitted to vote subject to challenge. In order
to be timely filed and served, the list must be received by the Regional
Director and the parties named in the agreement or direction
respectively within 2 business days after the approval of the agreement
or issuance of the direction unless a longer time is specified in the
agreement or direction. The list of names shall be alphabetized (overall
or by department) and be in an electronic format approved by the General
Counsel unless the employer certifies that it does not possess the
capacity to produce the list in the required form. When feasible, the
list shall be filed electronically with the Regional Director and served
electronically on the other parties named in the agreement or direction.
A certificate of service on all parties shall be filed with the Regional
Director when the voter
[[Page 66]]
list is filed. The employer's failure to file or serve the list within
the specified time or in proper format shall be grounds for setting
aside the election whenever proper and timely objections are filed under
the provisions of Sec. 102.69(a)(8). The employer shall be estopped
from objecting to the failure to file or serve the list within the
specified time or in the proper format if it is responsible for the
failure. The parties shall not use the list for purposes other than the
representation proceeding, Board proceedings arising from it, and
related matters.
(e) Notice of Election. Upon approval of the election agreement
pursuant to paragraph (a) or (b) of this section or with the direction
of election pursuant to paragraph (c) of this section, the Regional
Director shall promptly transmit the Board's Notice of Election to the
parties and their designated representatives by email, facsimile, or by
overnight mail (if neither an email address nor facsimile number was
provided). The employer shall post and distribute the Notice of Election
in accordance with Sec. 102.67(k). The employer's failure properly to
post or distribute the election notices as required herein shall be
grounds for setting aside the election whenever proper and timely
objections are filed under the provisions of Sec. 102.69(a)(8). A party
shall be estopped from objecting to the nonposting of notices if it is
responsible for the nonposting, and likewise shall be estopped from
objecting to the nondistribution of notices if it is responsible for the
nondistribution.
[84 FR 69588, Dec. 18, 2019, as amended at 88 FR 14911, Mar. 10, 2023]
Sec. 102.63 Investigation of petition by Regional Director;
Notice of Hearing; service of notice; Notice of Petition for Election;
Statement of Position; withdrawal of Notice of Hearing.
(a) Investigation; Notice of Hearing; notice of petition for
election. (1) After a petition has been filed under Sec. 102.61(a),
(b), or (c), if no agreement such as that provided in Sec. 102.62 is
entered into and if it appears to the Regional Director that there is
reasonable cause to believe that a question of representation affecting
commerce exists, that the policies of the Act will be effectuated, and
that an election will reflect the free choice of employees in an
appropriate unit, the Regional Director shall prepare and cause to be
served upon the parties and upon any known individuals or labor
organizations purporting to act as representatives of any employees
directly affected by such investigation, a Notice of Hearing before a
Hearing Officer at a time and place fixed therein. Except in cases
presenting unusually complex issues, the Regional Director shall set the
hearing for a date 14 business days from the date of service of the
notice. The Regional Director may postpone the hearing upon request of a
party showing good cause. A copy of the petition, a description of
procedures in representation cases, a ``Notice of Petition for
Election,'' and a Statement of Position form as described in paragraphs
(b)(1) through (3) of this section, shall be served with such Notice of
Hearing. Any such Notice of Hearing may be amended or withdrawn before
the close of the hearing by the Regional Director on the director's own
motion.
(2) Within 5 business days after service of the Notice of Hearing,
the employer shall post the Notice of Petition for Election in
conspicuous places, including all places where notices to employees are
customarily posted, and shall also distribute it electronically to
employees in the petitioned-for unit if the employer customarily
communicates with its employees electronically. The Notice of Petition
for Election shall indicate that no final decisions have been made yet
regarding the appropriateness of the petitioned-for bargaining unit and
whether an election shall be conducted. The employer shall maintain the
posting until the petition is dismissed or withdrawn or the Notice of
Petition for Election is replaced by the Notice of Election. The
employer's failure properly to post or distribute the Notice of Petition
for Election may be grounds for setting aside the election whenever
proper and timely objections are filed under the provisions of Sec.
102.69(a)(8). A party shall be estopped from objecting to the nonposting
of notices if it is responsible for the nonposting, and likewise shall
[[Page 67]]
be estopped from objecting to the nondistribution of notices if it is
responsible for the nondistribution.
(b) Statements of Position--(1) Statement of Position in RC cases.
If a petition has been filed under Sec. 102.61(a) and the Regional
Director has issued a Notice of Hearing, the employer shall file with
the Regional Director and serve on the parties named in the petition its
Statement of Position such that it is received by the Regional Director
and the parties named in the petition by the date and time specified in
the Notice of Hearing, which shall be at noon 8 business days following
the issuance and service of the Notice of Hearing. The Regional Director
may postpone the time for filing and serving the Statement of Position
upon request of a party showing good cause. The Regional Director may
permit the employer to amend its Statement of Position in a timely
manner for good cause.
(i) Employer's Statement of Position. (A) The employer's Statement
of Position shall state whether the employer agrees that the Board has
jurisdiction over it and provide the requested information concerning
the employer's relation to interstate commerce; state whether the
employer agrees that the proposed unit is appropriate, and, if the
employer does not so agree, state the basis for its contention that the
proposed unit is inappropriate, and state the classifications,
locations, or other employee groupings that must be added to or excluded
from the proposed unit to make it an appropriate unit; identify any
individuals whose eligibility to vote the employer intends to contest at
the pre-election hearing and the basis of each such contention; raise
any election bar; state the length of the payroll period for employees
in the proposed unit and the most recent payroll period ending date;
state the employer's position concerning the type, date(s), time(s), and
location(s) of the election and the eligibility period; and describe all
other issues the employer intends to raise at the hearing.
(B) The Statement of Position shall also state the name, title,
address, telephone number, facsimile number, and email address of the
individual who will serve as the representative of the employer and
accept service of all papers for purposes of the representation
proceeding and be signed by a representative of the employer.
(C) The Statement of Position shall include a list of the full
names, work locations, shifts, and job classifications of all
individuals in the proposed unit as of the payroll period preceding the
filing of the petition who remain employed at the time of filing, and if
the employer contends that the proposed unit is inappropriate, the
employer shall separately list the full names, work locations, shifts,
and job classifications of all individuals that the employer contends
must be added to the proposed unit to make it an appropriate unit. The
employer shall also indicate those individuals, if any, whom it believes
must be excluded from the proposed unit to make it an appropriate unit.
The list(s) of names shall be alphabetized (overall or by department)
and be in an electronic format approved by the General Counsel unless
the employer certifies that it does not possess the capacity to produce
the list in the required form.
(ii) Petitioner's Statement of Position. Following timely filing and
service of an employer's Statement of Position, the petitioner shall
file with the Regional Director and serve on the parties named in the
petition its Statement of Position responding to the issues raised in
the employer's Statement of Position, such that it is received no later
than noon 3 business days before the hearing. The Regional Director may
permit the petitioner to amend its Statement of Position in a timely
manner for good cause.
(2) Statement of Position in RM cases. If a petition has been filed
under Sec. 102.61(b) and the Regional Director has issued a Notice of
Hearing, each individual or labor organization named in the petition
shall file with the Regional Director and serve on the other parties
named in the petition its Statement of Position such that it is received
by the Regional Director and the parties named in the petition by the
date and time specified in the Notice of Hearing, which shall be at noon
8 business days following the issuance and service of the Notice of
Hearing. The Regional Director may postpone the time for filing and
serving the
[[Page 68]]
Statement of Position upon request of a party showing good cause. The
Regional Director may permit each individual or labor organization named
in the petition to amend its Statement of Position in a timely manner
for good cause.
(i) Individual or labor organization's Statement of Position. Each
individual or labor organization's Statement of Position shall state
whether it agrees that the Board has jurisdiction over the employer;
state whether it agrees that the proposed unit is appropriate, and, if
it does not so agree, state the basis for its contention that the
proposed unit is inappropriate, and state the classifications,
locations, or other employee groupings that must be added to or excluded
from the proposed unit to make it an appropriate unit; identify any
individuals whose eligibility to vote the individual or labor
organization intends to contest at the pre-election hearing and the
basis of each such contention; raise any election bar; state its
position concerning the type, date(s), time(s), and location(s) of the
election and the eligibility period; and describe all other issues it
intends to raise at the hearing.
(ii) Identification of representative for service of papers. Each
individual or labor organization's Statement of Position shall also
state the name, title, address, telephone number, facsimile number, and
email address of the individual who will serve as its representative and
accept service of all papers for purposes of the representation
proceeding and be signed by the individual or a representative of the
individual or labor organization.
(iii) Employer's Statement of Position. The employer shall file with
the Regional Director and serve on the parties named in the petition its
Statement of Position such that it is received no later than noon 3
business days before the hearing. The Employer's Statement of Position
shall include a list of the full names, work locations, shifts, and job
classifications of all individuals in the proposed unit as of the
payroll period preceding the filing of the petition who remain employed
at the time of filing. The list(s) of names shall be alphabetized
(overall or by department) and be in an electronic format approved by
the General Counsel unless the employer certifies that it does not
possess the capacity to produce the list in the required form. The
employer's Statement of Position shall also state whether the employer
agrees that the Board has jurisdiction over it and provide the requested
information concerning the employer's relation to interstate commerce;
identify any individuals whose eligibility to vote the employer intends
to contest at the pre-election hearing and the basis of each such
contention; state the length of the payroll period for employees in the
proposed unit and the most recent payroll period ending date; and
respond to the issues raised in any Statement of Position timely filed
and served pursuant to paragraph (b)(2)(i) of this section. The Regional
Director may permit the employer to amend its Statement of Position in a
timely manner for good cause.
(3) Statement of Position in RD cases--(i) Employer's and
Representative's Statements of Position. (A) If a petition has been
filed under Sec. 102.61(c) and the Regional Director has issued a
Notice of Hearing, the employer and the certified or recognized
representative of employees shall file with the Regional Director and
serve on the parties named in the petition their respective Statements
of Position such that they are received by the Regional Director and the
parties named in the petition by the date and time specified in the
Notice of Hearing, which shall be no later than noon 8 business days
following the issuance and service of the Notice of Hearing. The
Regional Director may postpone the time for filing and serving the
Statement of Position upon request of a party showing good cause. The
Regional Director may permit the employer and the certified or
recognized representative of employees to amend their respective
Statements of Position in a timely manner for good cause.
(B) The Statements of Position of the employer and the certified or
recognized representative shall state each party's position concerning
the Board's jurisdiction over the employer; state whether each agrees
that the proposed unit is appropriate, and, if not, state the basis for
the contention that the proposed unit is inappropriate, and
[[Page 69]]
state the classifications, locations, or other employee groupings that
must be added to or excluded from the proposed unit to make it an
appropriate unit; identify any individuals whose eligibility to vote
each party intends to contest at the pre-election hearing and the basis
of each such contention; raise any election bar; and state each party's
respective positions concerning the type, date(s), time(s), and
location(s) of the election and the eligibility period; and describe all
other issues each party intends to raise at the hearing.
(C) The Statements of Position shall also state the name, title,
address, telephone number, facsimile number, and email address of the
individual who will serve as the representative of the employer or the
certified or recognized representative of the employees and accept
service of all papers for purposes of the representation proceeding and
be signed by a representative of the employer or the certified or
recognized representative, respectively.
(D) The employer's Statement of Position shall also include a list
of the full names, work locations, shifts, and job classifications of
all individuals in the proposed unit as of the payroll period preceding
the filing of the petition who remain employed at the time of filing,
and if the employer contends that the proposed unit is inappropriate,
the employer shall separately list the full names, work locations,
shifts, and job classifications of all individuals that the employer
contends must be added to the proposed unit to make it an appropriate
unit. The employer shall also indicate those individuals, if any, whom
it believes must be excluded from the proposed unit to make it an
appropriate unit. The list(s) of names shall be alphabetized (overall or
by department) and be in an electronic format approved by the General
Counsel unless the employer certifies that it does not possess the
capacity to produce the list in the required form. The employer's
Statement of Position shall also provide the requested information
concerning the employer's relation to interstate commerce and state the
length of the payroll period for employees in the proposed unit and the
most recent payroll period ending date.
(ii) Petitioner's Statement of Position. Following timely filing and
service of any Statement(s) of Position filed pursuant to paragraph
(b)(3)(i) of this section, the petitioner shall file with the Regional
Director and serve on the parties named in the petition its Statement of
Position responding to the issues raised in the other Statement(s) of
Position, such that it is received no later than noon 3 business days
before the hearing. The Regional Director may permit the petitioner to
amend its Statement of Position in a timely manner for good cause.
(c) UC or AC cases. After a petition has been filed under Sec.
102.61(d) or (e), the Regional Director shall conduct an investigation
and, as appropriate, may issue a decision without a hearing; or prepare
and cause to be served upon the parties and upon any known individuals
or labor organizations purporting to act as representatives of any
employees directly affected by such investigation, a Notice of Hearing
before a Hearing Officer at a time and place fixed therein; or take
other appropriate action. If a Notice of Hearing is served, it shall be
accompanied by a copy of the petition. Any such Notice of Hearing may be
amended or withdrawn before the close of the hearing by the Regional
Director on the director's own motion. All hearing and post-hearing
procedure under this paragraph (c) shall be in conformance with
Sec. Sec. 102.64 through 102.69 whenever applicable, except where the
unit or certification involved arises out of an agreement as provided in
Sec. 102.62(a), the Regional Director's action shall be final, and the
provisions for review of Regional Director's decisions by the Board
shall not apply. Dismissals of petitions without a hearing shall not be
governed by Sec. 102.71. The Regional Director's dismissal shall be by
decision, and a request for review therefrom may be obtained under Sec.
102.67, except where an agreement under Sec. 102.62(a) is involved.
[84 FR 69590, Dec. 18, 2019]
Sec. 102.64 Conduct of hearing.
(a) The primary purpose of a hearing conducted under Section 9(c) of
the Act is to determine if a question of representation exists. A
question of representation exists if a proper petition
[[Page 70]]
has been filed concerning a unit appropriate for the purpose of
collective bargaining or concerning a unit in which an individual or
labor organization has been certified or is being currently recognized
by the employer as the bargaining representative. Disputes concerning
unit scope, voter eligibility and supervisory status will normally be
litigated and resolved by the Regional Director before an election is
directed. However, the parties may agree to permit disputed employees to
vote subject to challenge, thereby deferring litigation concerning such
disputes until after the election. If, upon the record of the hearing,
the Regional Director finds that a question of representation exists,
the director shall direct an election to resolve the question.
(b) Hearings shall be conducted by a Hearing Officer and shall be
open to the public unless otherwise ordered by the Hearing Officer. At
any time, a Hearing Officer may be substituted for the Hearing Officer
previously presiding. Subject to the provisions of Sec. 102.66, it
shall be the duty of the Hearing Officer to inquire fully into all
matters and issues necessary to obtain a full and complete record upon
which the Board or the Regional Director may discharge their duties
under Section 9(c) of the Act.
(c) The hearing shall continue from day to day until completed
unless the Regional Director concludes that extraordinary circumstances
warrant otherwise. The Regional Director may, in the director's
discretion, adjourn the hearing to a different place by announcement
thereof at the hearing or by other appropriate notice.
[84 FR 69593, Dec. 18, 2019]
Editorial Note: As of March 10, 2023, 29 CFR 102.64(a) is stayed
from May 31, 2020, until September 10, 2023.
Sec. 102.65 Motions; intervention; appeals of Hearing Officer's rulings.
(a) All motions, including motions for intervention pursuant to
paragraphs (b) and (e) of this section, shall be in writing or, if made
at the hearing, may be stated orally on the record and shall briefly
state the order or relief sought and the grounds for such motion. The
Motion shall immediately be served on the other parties to the
proceeding. Motions made prior to the transfer of the record to the
Board shall be filed with the Regional Director, except that motions
made during the hearing shall be filed with the Hearing Officer. After
the transfer of the record to the Board, all motions shall be filed with
the Board. Such motions shall be printed or otherwise legibly
duplicated. Eight copies of such motions shall be filed with the Board.
Extra copies of electronically-filed papers need not be filed. The
Regional Director may rule upon all motions filed with him/her, causing
a copy of the ruling to be served on the parties, or may refer the
motion to the Hearing Officer, except that if the Regional Director
prior to the close of the hearing grants a motion to dismiss the
petition, the petitioner may obtain a review of such ruling in the
manner prescribed in Sec. 102.71. The Hearing Officer shall rule,
either orally on the record or in writing, upon all motions filed at the
hearing or referred to the Hearing Officer as hereinabove provided,
except that the Hearing Officer shall rule on motions to intervene and
to amend the petition only as directed by the Regional Director, and
except that all motions to dismiss petitions shall be referred for
appropriate action at such time as the entire record is considered by
the Regional Director or the Board, as the case may be. All motions,
rulings, and orders shall become a part of the record, except that
rulings on motions to revoke subpoenas shall become a part of the record
only upon the request of the party aggrieved thereby as provided in
Sec. 102.66(f).
(b) Any person desiring to intervene in any proceeding shall make a
motion for intervention, stating the grounds upon which such person
claims to have an interest in the proceeding. The Regional Director, or
the Hearing Officer, at the specific direction of the Regional Director,
may by order permit intervention in person or by counsel or other
representative to such extent and upon such terms as the Regional
Director may deem proper, and such intervenor shall thereupon become a
party to the proceeding.
(c) Rulings by the Hearing Officer shall not be appealed directly to
the
[[Page 71]]
Regional Director, except by special permission of the Regional
Director, but shall be considered by the Regional Director when the
director reviews the entire record. Requests to the Regional Director
for special permission to appeal from a ruling of the Hearing Officer,
together with the appeal from such ruling, shall be filed promptly, in
writing, and shall briefly state the reasons special permission should
be granted and the grounds relied on for the appeal. The moving party
shall immediately serve a copy of the request for special permission and
of the appeal on the other parties and on the Regional Director. Any
statement in opposition or other response to the request and/or to the
appeal shall be filed promptly, in writing, and shall be served
immediately on the other parties and on the Regional Director. No party
shall be precluded from raising an issue at a later time because it did
not seek special permission to appeal. If the Regional Director grants
the request for special permission to appeal, the Regional Director may
proceed forthwith to rule on the appeal. Neither the filing nor the
grant of such a request shall stay the proceedings unless otherwise
ordered by the Regional Director. As stated in Sec. 102.67, the parties
may request Board review of Regional Director actions.
(d) The right to make motions or to make objections to rulings on
motions shall not be deemed waived by participation in the proceeding.
(e)(1) A party to a proceeding may, because of extraordinary
circumstances, move after the close of the hearing for reopening of the
record, or move after the decision or report for reconsideration, for
rehearing, or to reopen the record, but no such motion shall stay the
time for filing a request for review of a decision or exceptions to a
report. No motion for reconsideration, for rehearing, or to reopen the
record will be entertained by the Board or by any Regional Director or
Hearing Officer with respect to any matter which could have been but was
not raised pursuant to any other section of these Rules except that the
Regional Director may treat a request for review of a decision or
exceptions to a report as a motion for reconsideration. A motion for
reconsideration shall state with particularity the material error
claimed and with respect to any finding of material fact shall specify
the page of the record relied on for the motion. A motion for rehearing
or to reopen the record shall specify briefly the error alleged to
require a rehearing or hearing de novo, the prejudice to the movant
alleged to result from such error, the additional evidence sought to be
adduced, why it was not presented previously, and what result it would
require if adduced and credited. Only newly discovered evidence--
evidence which has become available only since the close of the
hearing--or evidence which the Regional Director or the Board believes
should have been taken at the hearing will be taken at any further
hearing.
(2) Any motion for reconsideration or for rehearing pursuant to
paragraph (e)(1) of this section shall be filed within 10 business days,
or such further period as may be allowed, after the service of the
decision or report. Any request for an extension of time to file such a
motion shall be served promptly on the other parties. A motion to reopen
the record shall be filed promptly on discovery of the evidence sought
to be adduced.
(3) The filing and pendency of a motion under this provision shall
not unless so ordered operate to stay the effectiveness of any action
taken or directed to be taken nor will a Regional Director or the Board
delay any decision or action during the period specified in paragraph
(e)(2) of this section, except that, if a motion for reconsideration
based on changed circumstances or to reopen the record based on newly
discovered evidence states with particularity that the granting thereof
will affect the eligibility to vote of specific employees, the Board
agent shall have discretion to allow such employees to vote subject to
challenge even if they are specifically excluded in the direction of
election and to challenge or permit the moving party to challenge the
ballots of such employees even if they are specifically included in the
direction of election in any election conducted while such motion is
pending. A motion for reconsideration, for rehearing, or to reopen the
record need not be
[[Page 72]]
filed to exhaust administrative remedies.
[84 FR 69593, Dec. 18, 2019]
Sec. 102.66 Introduction of evidence: rights of parties at hearing;
preclusion; subpoenas; oral argument and briefs.
(a) Rights of parties at hearing. Any party shall have the right to
appear at any hearing in person, by counsel, or by other representative,
to call, examine, and cross-examine witnesses, and to introduce into the
record evidence of the significant facts that support the party's
contentions and are relevant to the existence of a question of
representation and the other issues in the case that have been properly
raised. The Hearing Officer shall also have power to call, examine, and
cross-examine witnesses and to introduce into the record documentary and
other evidence. Witnesses shall be examined orally under oath. The rules
of evidence prevailing in courts of law or equity shall not be
controlling. Stipulations of fact may be introduced in evidence with
respect to any issue.
(b) Statements of Position. Issues in dispute shall be identified as
follows: After a Statement of Position is received in evidence and prior
to the introduction of further evidence, all other parties shall respond
on the record to each issue raised in the Statement. The Regional
Director may permit any Statement of Position to be amended in a timely
manner for good cause, in which event the other parties shall respond to
each amended position. The Regional Director may also permit responses
to be amended in a timely manner for good cause. The Hearing Officer
shall not receive evidence concerning any issue as to which parties have
not taken adverse positions, except that this provision shall not
preclude the receipt of evidence regarding the Board's jurisdiction over
the employer or limit the Regional Director's discretion to direct the
receipt of evidence concerning any issue, such as the appropriateness of
the proposed unit, as to which the Regional Director determines that
record evidence is necessary.
(c) Offers of proof. The Regional Director shall direct the Hearing
Officer concerning the issues to be litigated at the hearing. The
Hearing Officer may solicit offers of proof from the parties or their
counsel as to any or all such issues. Offers of proof shall take the
form of a written statement or an oral statement on the record
identifying each witness the party would call to testify concerning the
issue and summarizing each witness's testimony. If the Regional Director
determines that the evidence described in an offer of proof is
insufficient to sustain the proponent's position, the evidence shall not
be received. But in no event shall a party be precluded from introducing
relevant evidence otherwise consistent with this subpart.
(d) Preclusion. A party shall be precluded from raising any issue,
presenting any evidence relating to any issue, cross-examining any
witness concerning any issue, and presenting argument concerning any
issue that the party failed to raise in its timely Statement of Position
or to place in dispute in response to another party's Statement of
Position or response, except that no party shall be precluded from
contesting or presenting evidence relevant to the Board's statutory
jurisdiction to process the petition. Nor shall any party be precluded,
on the grounds that a voter's eligibility or inclusion was not contested
at the pre-election hearing, from challenging the eligibility of any
voter during the election. If a party contends that the proposed unit is
not appropriate in its Statement of Position but fails to specify the
classifications, locations, or other employee groupings that must be
added to or excluded from the proposed unit to make it an appropriate
unit, the party shall also be precluded from raising any issue as to the
appropriateness of the unit, presenting any evidence relating to the
appropriateness of the unit, cross-examining any witness concerning the
appropriateness of the unit, and presenting argument concerning the
appropriateness of the unit. If the employer fails to timely furnish the
lists of employees described in Sec. 102.63(b)(1)(iii), (b)(2)(iii), or
(b)(3)(iii), the employer shall be precluded from contesting the
appropriateness of the proposed unit at any
[[Page 73]]
time and from contesting the eligibility or inclusion of any individuals
at the pre-election hearing, including by presenting evidence or
argument, or by cross-examination of witnesses.
(e) Objections. Any objection with respect to the conduct of the
hearing, including any objection to the introduction of evidence, may be
stated orally or in writing, accompanied by a short statement of the
grounds of such objection, and included in the record. No such objection
shall be deemed waived by further participation in the hearing.
(f) Subpoenas. The Board, or any Member thereof, shall, on the
written application of any party, forthwith issue subpoenas requiring
the attendance and testimony of witnesses and the production of any
evidence, including books, records, correspondence, or documents, in
their possession or under their control. The Executive Secretary shall
have the authority to sign and issue any such subpoenas on behalf of the
Board or any Member thereof. Any party may file applications for
subpoenas in writing with the Regional Director if made prior to
hearing, or with the Hearing Officer if made at the hearing.
Applications for subpoenas may be made ex parte. The Regional Director
or the Hearing Officer, as the case may be, shall forthwith grant the
subpoenas requested. Any person served with a subpoena, whether ad
testificandum or duces tecum, if he or she does not intend to comply
with the subpoena, shall, within 5 business days after the date of
service of the subpoena, petition in writing to revoke the subpoena. The
date of service for purposes of computing the time for filing a petition
to revoke shall be the date the subpoena is received. Such petition
shall be filed with the Regional Director who may either rule upon it or
refer it for ruling to the Hearing Officer except that if the evidence
called for is to be produced at a hearing and the hearing has opened,
the petition to revoke shall be filed with the Hearing Officer. Notice
of the filing of petitions to revoke shall be promptly given by the
Regional Director or Hearing Officer, as the case may be, to the party
at whose request the subpoena was issued. The Regional Director or the
Hearing Officer, as the case may be, shall revoke the subpoena if, in
his/her opinion, the evidence whose production is required does not
relate to any matter under investigation or in question in the
proceedings or the subpoena does not describe with sufficient
particularity the evidence whose production is required, or if for any
other reason sufficient in law the subpoena is otherwise invalid. The
Regional Director or the Hearing Officer, as the case may be, shall make
a simple statement of procedural or other grounds for his/her ruling.
The petition to revoke, any answer filed thereto, and any ruling thereon
shall not become part of the record except upon the request of the party
aggrieved by the ruling. Persons compelled to submit data or evidence
are entitled to retain or, on payment of lawfully prescribed costs, to
procure copies or transcripts of the data or evidence submitted by them.
(g) Election details. Prior to the close of the hearing, the Hearing
Officer will:
(1) Solicit the parties' positions on the type, date(s), time(s),
and location(s) of the election and the eligibility period, but shall
not permit litigation of those issues;
(2) Solicit the name, address, email address, facsimile number, and
phone number of the employer's on-site representative to whom the
Regional Director should transmit the Notice of Election in the event
the Regional Director directs an election;
(3) Inform the parties that the Regional Director will issue a
decision as soon as practicable and that the director will immediately
transmit the document to the parties and their designated
representatives by email, facsimile, or by overnight mail (if neither an
email address nor facsimile number was provided); and
(4) Inform the parties what their obligations will be under these
Rules if the director directs an election and of the time for complying
with such obligations.
(h) Oral argument and briefs. Any party shall be entitled, upon
request, to a reasonable period at the close of the hearing for oral
argument, which shall be included in the stenographic report of the
hearing. Any party desiring to submit a brief to the Regional
[[Page 74]]
Director shall be entitled to do so within 5 business days after the
close of the hearing. Prior to the close of the hearing and for good
cause the Hearing Officer may grant an extension of time to file a brief
not to exceed an additional 10 business days. Copies of the brief shall
be served on all other parties to the proceeding and a statement of such
service shall be filed with the Regional Director together with the
brief. No reply brief may be filed except upon special permission of the
Regional Director.
(i) Hearing Officer analysis. The Hearing Officer may submit an
analysis of the record to the Regional Director but shall make no
recommendations.
(j) Witness fees. Witness fees and mileage shall be paid by the
party at whose instance the witness appears.
[84 FR 69594, Dec. 18, 2019]
Sec. 102.67 Proceedings before the Regional Director; further hearing;
action by the Regional Director; appeals from actions of the Regional
Director; statement in opposition; requests for extraordinary relief;
Notice of Election; voter list.
(a) Proceedings before Regional Director. The Regional Director may
proceed, either forthwith upon the record or after oral argument, the
submission of briefs, or further hearing, as the director may deem
proper, to determine whether a question of representation exists in a
unit appropriate for purposes of collective bargaining as provided in
Sec. 102.64(a), and to direct an election, dismiss the petition, or
make other disposition of the matter. A decision by the Regional
Director upon the record shall set forth the director's findings,
conclusions, and order or direction.
(b) Directions of elections. If the Regional Director directs an
election, the direction may specify the type, date(s), time(s), and
location(s) of the election and the eligibility period, but the Regional
Director retains discretion to continue investigating these details
after directing an election and to specify them in a subsequently-issued
Notice of Election. The Regional Director shall schedule the election
for the earliest date practicable, but unless a waiver is filed, the
Regional Director will normally not schedule an election before the 20th
business day after the date of the direction of election, to permit the
Board to rule on any request for review which may be filed pursuant to
paragraph (c) of this section. The Regional Director shall transmit the
direction of election to the parties and their designated
representatives by email, facsimile, or by overnight mail (if neither an
email address nor facsimile number was provided). The Regional Director
shall also transmit the Board's Notice of Election to the parties and
their designated representatives by email, facsimile, or by overnight
mail (if neither an email address nor facsimile number was provided),
whether transmitted simultaneously with the direction of election or
separately thereafter. If the direction of election provides for
individuals to vote subject to challenge, the Notice of Election shall
so state, and shall advise employees that the individuals are neither
included in, nor excluded from, the bargaining unit, inasmuch as they
have been permitted to vote subject to challenge. The election notice
shall further advise employees that the eligibility or inclusion of the
individuals will be resolved, if necessary, following the election.
(c) Requests for Board review of Regional Director actions. Upon the
filing of a request therefor with the Board by any interested person,
the Board may review any action of a Regional Director delegated to him/
her under Section 3(b) of the Act except as the Board's Rules provide
otherwise, but such a review shall not, unless specifically ordered by
the Board, operate as a stay of any action by the Regional Director. The
request for review may be filed at any time following the action until
10 business days after a final disposition of the proceeding by the
Regional Director. No party shall be precluded from filing a request for
review of the direction of election within the time provided in this
paragraph because it did not file a request for review of the direction
of election prior to the election.
(d) Grounds for review. The Board will grant a request for review
only where compelling reasons exist therefor. Accordingly, a request for
review may be
[[Page 75]]
granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because
of:
(i) The absence of; or
(ii) A departure from, officially reported Board precedent.
(2) That the Regional Director's decision on a substantial factual
issue is clearly erroneous on the record and such error prejudicially
affects the rights of a party.
(3) That the conduct of any hearing or any ruling made in connection
with the proceeding has resulted in prejudicial error.
(4) That there are compelling reasons for reconsideration of an
important Board rule or policy.
(e) Contents of request. A request for review must be a self-
contained document enabling the Board to rule on the basis of its
contents without the necessity of recourse to the record; however, the
Board may, in its discretion, examine the record in evaluating the
request. With respect to the ground listed in paragraph (d)(2) of this
section, and other grounds where appropriate, the request must contain a
summary of all evidence or rulings bearing on the issues together with
page citations from the transcript and a summary of argument. Such
request may not raise any issue or allege any facts not timely presented
to the Regional Director.
(f) Opposition to request. Any party may, within 5 business days
after the last day on which the request for review must be filed, file
with the Board a statement in opposition which shall be served in
accordance with the requirements of paragraph (i) of this section. The
Board may grant or deny the request for review without awaiting a
statement in opposition. No reply to the opposition may be filed except
upon special leave of the Board.
(g) Finality; waiver; denial of request. The Regional Director's
actions are final unless a request for review is granted. The parties
may, at any time, waive their right to request review. Failure to
request review shall preclude such parties from relitigating, in any
related subsequent unfair labor practice proceeding, any issue which
was, or could have been, raised in the representation proceeding. Denial
of a request for review shall constitute an affirmance of the Regional
Director's action which shall also preclude relitigating any such issues
in any related subsequent unfair labor practice proceeding.
(h) Grant of review; briefs. The grant of a request for review shall
not stay the Regional Director's action unless otherwise ordered by the
Board. Except where the Board rules upon the issues on review in the
order granting review, the appellants and other parties may, within 10
business days after issuance of an order granting review, file briefs
with the Board. Such briefs may be reproductions of those previously
filed with the Regional Director and/or other briefs which shall be
limited to the issues raised in the request for review. No reply briefs
may be filed except upon special leave of the Board. Where review has
been granted, the Board may provide for oral argument or further
hearing. The Board will consider the entire record in the light of the
grounds relied on for review and shall make such disposition of the
matter as it deems appropriate. Any request for review may be withdrawn
with the permission of the Board at any time prior to the issuance of
the decision of the Board thereon.
(i) Format, Service, and Extensions--(1) Format of request. All
documents filed with the Board under the provisions of this section
shall be double spaced, on 8 1/2- by 11-inch paper, and shall be printed
or otherwise legibly duplicated. Extra copies of electronically-filed
papers need not be filed. Requests for review, including briefs in
support thereof and any motions under paragraph (j) of this section;
statements in opposition thereto; and briefs on review shall not exceed
50 pages in length exclusive of subject index and table of cases and
other authorities cited, unless permission to exceed that limit is
obtained from the Board by motion, setting forth the reasons therefor,
filed pursuant to the procedures set forth in Sec. 102.2(c). Where any
brief filed pursuant to this section exceeds 20 pages, it shall contain
a subject index with page references and an alphabetical table of cases
and other authorities cited. A
[[Page 76]]
party may combine a request for review of the Regional Director's
decision and direction of election with a request for review of a
Regional Director's post-election decision, if the party has not
previously filed a request for review of the pre-election decision. A
party may not, however, file more than one request for review of a
particular action or decision by the Regional Director. Repetitive
requests will not be considered.
(2) Service. The party filing with the Board a request for review, a
statement in opposition to a request for review, or a brief on review
shall serve a copy thereof on the other parties and shall file a copy
with the Regional Director. A certificate of service shall be filed with
the Board together with the document.
(3) Extensions. Requests for extensions of time to file requests for
review, statements in opposition to a request for review, or briefs, as
permitted by this section, shall be filed pursuant to Sec. 102.2(c)
with the Board or the Regional Director, as the case may be. The party
filing the request for an extension of time shall serve a copy thereof
on the other parties and, if filed with the Board, on the Regional
Director. A statement of such service shall be filed with the document.
(j) Requests for extraordinary relief. (1) A party requesting review
may also move in writing to the Board for one or more of the following
forms of relief:
(i) Expedited consideration of the request;
(ii) A stay of some or all of the proceedings, including the
election; or
(iii) Impoundment and/or segregation of some or all of the ballots.
(2) Relief will be granted only upon a clear showing that it is
necessary under the particular circumstances of the case. The pendency
of a motion does not entitle a party to interim relief, and an
affirmative ruling by the Board granting relief is required before the
action of the Regional Director will be altered in any fashion.
(k) Notice of Election. The employer shall post copies of the
Board's Notice of Election in conspicuous places, including all places
where notices to employees in the unit are customarily posted, at least
3 full working days prior to 12:01 a.m. of the day of the election and
shall also distribute it electronically to all eligible voters
(including individuals permitted to vote subject to challenge) if the
employer customarily communicates with employees in the unit
electronically. In elections involving mail ballots, the election shall
be deemed to have commenced the day the ballots are deposited by the
Regional Office in the mail. In all cases, the notices shall remain
posted until the end of the election. For the purposes of this subpart,
the term working day shall mean an entire 24-hour period excluding
Saturdays, Sundays, and holidays. The employer's failure properly to
post or distribute the election notices as required herein shall be
grounds for setting aside the election whenever proper and timely
objections are filed under the provisions of Sec. 102.69(a)(8). A party
shall be estopped from objecting to the nonposting of notices if it is
responsible for the nonposting, and likewise shall be estopped from
objecting to the nondistribution of notices if it is responsible for the
nondistribution.
(l) Voter list. Absent extraordinary circumstances specified in the
direction of election, the employer shall, within 2 business days after
issuance of the direction, provide to the Regional Director and the
parties named in such direction a list of the full names, work
locations, shifts, job classifications, and contact information
(including home addresses, available personal email addresses, and
available home and personal cellular ``cell'' telephone numbers) of all
eligible voters. The employer shall also include in separate sections of
that list the same information for those individuals who will be
permitted to vote subject to challenge. In order to be timely filed and
served, the list must be received by the Regional Director and the
parties named in the direction respectively within 2 business days after
issuance of the direction of election unless a longer time is specified
therein. The list of names shall be alphabetized (overall or by
department) and be in an electronic format approved by the General
Counsel unless the employer certifies that it does not possess the
capacity to produce the list in the required form.
[[Page 77]]
When feasible, the list shall be filed electronically with the Regional
Director and served electronically on the other parties named in the
direction. A certificate of service on all parties shall be filed with
the Regional Director when the voter list is filed. The employer's
failure to file or serve the list within the specified time or in proper
format shall be grounds for setting aside the election whenever proper
and timely objections are filed under the provisions of Sec.
102.69(a)(8). The employer shall be estopped from objecting to the
failure to file or serve the list within the specified time or in the
proper format if it is responsible for the failure. The parties shall
not use the list for purposes other than the representation proceeding,
Board proceedings arising from it, and related matters.
[84 FR 69595, Dec. 18, 2019, as amended at 88 FR 14912, Mar. 10, 2023]
Editorial Note: As of March 10, 2023, 29 CFR 102.67(b) is stayed
from May 31, 2020, until September 10, 2023.
Sec. 102.68 Record in pre-election proceeding; what constitutes;
transmission to Board.
The record in a proceeding conducted pursuant to the foregoing
section shall consist of: the petition, Notice of Hearing with affidavit
of service thereof, statements of position, responses to statements of
position, offers of proof made at the pre-election hearing, motions,
rulings, orders, the stenographic report of the hearing and of any oral
argument before the Regional Director, stipulations, exhibits,
affidavits of service, and any briefs or other legal memoranda submitted
by the parties to the Regional Director or to the Board, and the
decision of the Regional Director, if any. Immediately upon issuance of
an order granting a request for review by the Board, the Regional
Director shall transmit the record to the Board.
[84 FR 69597, Dec. 18, 2019]
Sec. 102.69 Election procedure; tally of ballots; objections;
certification by the Regional Director; hearings; Hearing Officer
reports on objections and challenges; exceptions to Hearing Officer
reports; Regional Director decisions on objections and challenges.
(a) Election procedure; tally; objections. (1) Unless otherwise
directed by the Board, all elections shall be conducted under the
supervision of the Regional Director in whose Region the proceeding is
pending.
(2) All elections shall be by secret ballot.
(3) Whenever two or more labor organizations are included as choices
in an election, either participant may, upon its prompt request to and
approval thereof by the Regional Director, whose decision shall be
final, have its name removed from the ballot, except that in a
proceeding involving an employer-filed petition or a petition for
decertification the labor organization certified, currently recognized,
or found to be seeking recognition may not have its name removed from
the ballot without giving timely notice in writing to all parties and
the Regional Director, disclaiming any representation interest among the
employees in the unit.
(4) A pre-election conference may be held at which the parties may
check the list of voters and attempt to resolve any questions of
eligibility or inclusions in the unit.
(5) When the election is conducted manually, any party may be
represented by observers of its own selection, subject to such
limitations as the Regional Director may prescribe.
(6) Any party and Board agents may challenge, for good cause, the
eligibility of any person to participate in the election. The ballots of
such challenged persons shall be impounded.
(7) Upon the conclusion of the election the ballots will be counted
and a tally of ballots prepared and immediately made available to the
parties.
(8) Within 5 business days after the tally of ballots has been
prepared, any party may file with the Regional Director objections to
the conduct of the election or to conduct affecting the results of the
election which shall contain a short statement of the reasons
[[Page 78]]
therefor and a written offer of proof in the form described in Sec.
102.66(c) insofar as applicable, except that the Regional Director may
extend the time for filing the written offer of proof in support of the
election objections upon request of a party showing good cause. Such
filing(s) must be timely whether or not the challenged ballots are
sufficient in number to affect the results of the election. The party
filing the objections shall serve a copy of the objections, including
the short statement of reasons therefor, but not the written offer of
proof, on each of the other parties to the case, and include a
certificate of such service with the objections. A person filing
objections by facsimile pursuant to Sec. 102.5(e) shall also file an
original for the Agency's records, but failure to do so shall not affect
the validity of the filing if otherwise proper. In addition, extra
copies need not be filed if the filing is by facsimile or electronically
pursuant to Sec. 102.5(e) or (c). The Regional Director will transmit a
copy of the objections to be served on each of the other parties to the
proceeding, but shall not transmit the offer of proof.
(b) Certification in the absence of objections, determinative
challenges and runoff elections. If no objections are filed within the
time set forth in paragraph (a)(8) of this section, if the challenged
ballots are insufficient in number to affect the results of the
election, and if no runoff election is to be held pursuant to Sec.
102.70, the Regional Director shall forthwith issue to the parties a
certification of the results of the election, including certification of
representative where appropriate, with the same force and effect as if
issued by the Board.
(c) Regional director's resolution of objections and challenges--(1)
Regional director's determination to hold a hearing--(i) Decisions
resolving objections and challenges without a hearing. If timely
objections are filed to the conduct of an election or to conduct
affecting the results of the election, and the Regional Director
determines that the evidence described in the accompanying offer of
proof would not constitute grounds for setting aside the election if
introduced at a hearing, and the Regional Director determines that any
determinative challenges do not raise substantial and material factual
issues, the Regional Director shall issue a decision disposing of the
objections and determinative challenges, and a certification of the
results of the election, including certification of representative where
appropriate.
(ii) Notices of hearing on objections and challenges. If timely
objections are filed to the conduct of the election or to conduct
affecting the results of the election, and the Regional Director
determines that the evidence described in the accompanying offer of
proof could be grounds for setting aside the election if introduced at a
hearing, or if the challenged ballots are sufficient in number to affect
the results of the election, and raise substantial and material factual
issues, the Regional Director shall transmit to the parties and their
designated representatives by email, facsimile, or by overnight mail (if
neither an email address nor facsimile number was provided) a Notice of
Hearing before a Hearing Officer at a place and time fixed therein. The
Regional Director shall set the hearing for a date 15 business days
after the preparation of the tally of ballots or as soon as practicable
thereafter, unless the parties agree to an earlier date, except that the
Regional Director may consolidate the hearing concerning objections and
challenges with an unfair labor practice proceeding before an
Administrative Law Judge. In any proceeding wherein the election has
been held pursuant to Sec. 102.62(a) or (c) and the representation case
has been consolidated with an unfair labor practice proceeding for
purposes of hearing, the Administrative Law Judge shall, after issuing a
decision, sever the representation case and transfer it to the Regional
Director for further processing.
(iii) Hearings; Hearing Officer reports; exceptions to Regional
Director. The hearing on objections and challenges shall continue from
day to day until completed unless the Regional Director concludes that
extraordinary circumstances warrant otherwise. Any hearing pursuant to
this section shall be conducted in accordance with the provisions of
Sec. Sec. 102.64, 102.65, and 102.66, insofar as applicable. Any party
shall have the right to appear at the hearing
[[Page 79]]
in person, by counsel, or by other representative, to call, examine, and
cross-examine witnesses, and to introduce into the record evidence of
the significant facts that support the party's contentions and are
relevant to the objections and determinative challenges that are the
subject of the hearing. The Hearing Officer may rule on offers of proof.
Any party desiring to submit a brief to the Hearing Officer shall be
entitled to do so within 5 business days after the close of the hearing.
Prior to the close of the hearing and for good cause the Hearing Officer
may grant an extension of time to file a brief not to exceed an
additional 10 business days. Upon the close of such hearing, the Hearing
Officer shall prepare and cause to be served on the parties a report
resolving questions of credibility and containing findings of fact and
recommendations as to the disposition of the issues. Any party may,
within 10 business days from the date of issuance of such report, file
with the Regional Director an original and one copy of exceptions to
such report, with supporting brief if desired. A copy of such
exceptions, together with a copy of any brief filed, shall immediately
be served on the other parties and a statement of service filed with the
Regional Director. Within 5 business days from the last date on which
exceptions and any supporting brief may be filed, or such further time
as the Regional Director may allow, a party opposing the exceptions may
file an answering brief with the Regional Director. An original and one
copy shall be submitted. A copy of such answering brief shall
immediately be served on the other parties and a statement of service
filed with the Regional Director. Extra copies of electronically-filed
papers need not be filed. The Regional Director shall thereupon decide
the matter upon the record or make other disposition of the case. If no
exceptions are filed to such report, the Regional Director, upon the
expiration of the period for filing such exceptions, may decide the
matter forthwith upon the record or may make other disposition of the
case.
(2) Regional Director decisions and Board review. The decision of
the Regional Director disposing of challenges and/or objections may
include a certification of the results of the election, including
certification of representative where appropriate, and shall be final
unless a request for review is granted. If a consent election has been
held pursuant to Sec. Sec. 102.62(a) or (c), the decision of the
Regional Director is not subject to Board review. If the election has
been conducted pursuant to Sec. 102.62(b), or by a direction of
election issued following any proceeding under Sec. 102.67, the parties
shall have the right to Board review set forth in Sec. 102.67, except
that in any proceeding wherein a representation case has been
consolidated with an unfair labor practice proceeding for purposes of
hearing and the election was conducted pursuant to Sec. Sec. 102.62(b)
or 102.67, the provisions of Sec. 102.46 shall govern with respect to
the filing of exceptions or an answering brief to the exceptions to the
Administrative Law Judge's decision, and a request for review of the
Regional Director's decision and direction of election shall be due at
the same time as the exceptions to the Administrative Law Judge's
decision are due.
(d) Record for objections and challenges. (1)(i) Record in case with
hearing. In a proceeding pursuant to this section in which a hearing is
held, the record in the case shall consist of the Notice of Hearing,
motions, rulings, orders, stenographic report of the hearing,
stipulations, exhibits, together with the objections to the conduct of
the election or to conduct affecting the results of the election, offers
of proof made at the post-election hearing, any briefs or other legal
memoranda submitted by the parties, any report on such objections and/or
on challenged ballots, exceptions, the decision of the Regional
Director, any requests for review, and the record previously made as
defined in Sec. 102.68. Materials other than those set out above shall
not be a part of the record.
(ii) Record in case with no hearing. In a proceeding pursuant to
this section in which no hearing is held, the record shall consist of
the objections to the conduct of the election or to conduct affecting
the results of the election,
[[Page 80]]
any decision on objections or on challenged ballots and any request for
review of such a decision, any documentary evidence, excluding
statements of witnesses, relied upon by the Regional Director in his
decision, any briefs or other legal memoranda submitted by the parties,
and any other motions, rulings, or orders of the Regional Director.
Materials other than those set out above shall not be a part of the
record, except as provided in paragraph (d)(3) of this section.
(2) Immediately upon issuance of an order granting a request for
review by the Board, the Regional Director shall transmit to the Board
the record of the proceeding as defined in paragraph (d)(1) of this
section.
(3) In a proceeding pursuant to this section in which no hearing is
held, a party filing a request for review of a Regional Director's
decision on challenged ballots or on objections or on both, or any
opposition thereto, may support its submission to the Board by appending
thereto copies of any offer of proof, including copies of any affidavits
or other documentary evidence, it has timely submitted to the Regional
Director and which were not included in the decision. Documentary
evidence so appended shall thereupon become part of the record in the
proceeding. Failure to append that evidence to its submission to the
Board in the representation proceeding as provided above, shall preclude
a party from relying on such evidence in any subsequent unfair labor
proceeding.
(e) Revised tally of ballots. In any case under this section in
which the Regional Director or the Board, upon a ruling on challenged
ballots, has directed that such ballots be opened and counted and a
revised tally of ballots issued, and no objection to such revised tally
is filed by any party within 5 business days after the revised tally of
ballots has been made available, the Regional Director shall forthwith
issue to the parties certification of the results of the election,
including certifications of representative where appropriate, with the
same force and effect as if issued by the Board.
(f) Format of filings with Regional Director. All documents filed
with the Regional Director under the provisions of this section shall be
filed double spaced, on 8\1/2\- by 11-inch paper, and shall be printed
or otherwise legibly duplicated. Extra copies of electronically-filed
papers need not be filed. Briefs in support of exceptions or answering
briefs shall not exceed 50 pages in length, exclusive of subject index
and table of cases and other authorities cited, unless permission to
exceed that limit is obtained from the Regional Director by motion,
setting forth the reasons therefor, filed pursuant to the procedures set
forth in Sec. 102.2(c). Where any brief filed pursuant to this section
exceeds 20 pages, it shall contain a subject index with page references
and an alphabetical table of cases and other authorities cited.
(g) Extensions of time. Requests for extensions of time to file
exceptions, requests for review, supporting briefs, or answering briefs,
as permitted by this section, shall be filed pursuant to Sec. 102.2(c)
with the Board or the Regional Director, as the case may be. The party
filing the request for an extension of time shall serve a copy thereof
on the other parties and, if filed with the Board, on the Regional
Director. A statement of such service shall be filed with the document.
(h) Final disposition. For the purposes of filing a request for
review pursuant to Sec. 102.67(c) or paragraph (c)(2) of this section,
a case is considered to have reached final disposition when the Regional
Director dismisses the petition or issues a post-election decision that
will result in the issuance of a certification of results (including,
where appropriate, a certification of representative) absent the filing
of a request for review.
[84 FR 69597, Dec. 18, 2019, as amended at 88 FR 14912, Mar. 10, 2023]
Sec. 102.70 Runoff election.
(a) The regional director shall conduct a runoff election, without
further order of the Board, when an election in which the ballot
provided for not less than three choices (i.e., at least two
representatives and ``neither'') results in no choice receiving a
majority of the valid ballots cast and no objections are filed as
provided in Sec. 102.69. Only one runoff shall be held pursuant to this
section.
[[Page 81]]
(b) Employees who were eligible to vote in the election and who are
in an eligible category on the date of the runoff election shall be
eligible to vote in the runoff election.
(c) The ballot in the runoff election shall provide for a selection
between the two choices receiving the largest and second largest number
of votes.
(d) In the event the number of votes cast in an inconclusive
election in which the ballot provided for a choice among two or more
representatives and ``neither'' or ``none'' is equally divided among the
several choices; or in the event the number of ballots cast for one
choice in such election is equal to the number cast for another of the
choices but less than the number cast for the third choice, the regional
director shall declare the first election a nullity and shall conduct
another election, providing for a selection from among the three choices
afforded in the original ballot; and he shall thereafter proceed in
accordance with paragraphs (a), (b), and (c) of this section. In the
event two or more choices receive the same number of ballots and another
choice receives no ballots and there are no challenged ballots that
would affect the results of the election, and if all eligible voters
have cast valid ballots, there shall be no runoff election and a
certification of results of election shall be issued. Only one such
further election pursuant to this paragraph may be held.
(e) Upon the conclusion of the runoff election, the provisions of
Sec. 102.69 shall govern, insofar as applicable.
[26 FR 3891, May 4, 1961]
Sec. 102.71 Dismissal of petition; refusal to proceed with petition;
requests for review by the Board of action of the Regional Director.
(a) If, after a petition has been filed and at any time prior to the
close of hearing, it shall appear to the Regional Director that no
further proceedings are warranted, the Regional Director may dismiss the
petition by administrative action and shall so advise the petitioner in
writing, setting forth a simple statement of the procedural or other
grounds for the dismissal, with copies to the other parties to the
proceeding. Any party may obtain a review of such action by filing a
request therefor with the Board in Washington, DC, in accordance with
the provisions of paragraph (c) of this section. A request for review
from an action of a Regional Director pursuant to this subsection may be
granted only upon one or more of the following grounds:
(1) That a substantial question of law or policy is raised because
of:
(i) The absence of; or
(ii) A departure from, officially reported Board precedent.
(2) There are compelling reasons for reconsideration of an important
Board rule or policy.
(3) The request for review is accompanied by documentary evidence
previously submitted to the Regional Director raising serious doubts as
to the Regional Director's factual findings, thus indicating that there
are factual issues which can best be resolved upon the basis of the
record developed at a hearing.
(4) The Regional Director's action is, on its face, arbitrary or
capricious.
(5) The petition raises issues which can best be resolved upon the
basis of a record developed at a hearing.
(b) Where the Regional Director dismisses a petition or directs that
the proceeding on the petition be held in abeyance, and such action is
taken because of the pendency of concurrent unresolved charges of unfair
labor practices, and the Regional Director, upon request, has so
notified the parties in writing, any party may obtain a review of the
Regional Director's action by filing a request therefor with the Board
in Washington, DC, in accordance with the provisions of paragraph (c) of
this section. A review of an action of a Regional Director pursuant to
this subsection may be granted only upon one or more of the following
grounds:
(1) That a substantial question of law or policy is raised because
of:
(i) The absence of; or
(ii) A departure from, officially reported Board precedent.
(2) There are compelling reasons for reconsideration of an important
Board rule or policy.
(3) The Regional Director's action is, on its face, arbitrary or
capricious.
[[Page 82]]
(c) A request for review must be filed with the Board in Washington,
DC, and a copy filed with the Regional Director and copies served on all
the other parties within 10 business days of service of the notice of
dismissal or notification that the petition is to be held in abeyance.
The request shall contain a complete statement setting forth facts and
reasons upon which the request is based. The request shall be printed or
otherwise legibly duplicated. Extra copies of electronically-filed
papers need not be filed. The request must comply with the formatting
requirements set forth in Sec. 102.67(i)(1). Requests for an extension
of time within which to file the request for review shall be filed
pursuant to Sec. 102.2(c) with the Board in Washington, DC, and a
certificate of service shall accompany the requests.
(d) Any party may, within 5 business days after the last day on
which the request for review must be filed, file with the Board a
statement in opposition to the request for review. An opposition must be
filed with the Board in Washington, DC, and a copy filed with the
Regional Direction and copies served on all the other parties. The
opposition must comply with the formatting requirements set forth in
Sec. 102.67(i)(1). Requests for an extension of time within which to
file the opposition shall be filed pursuant to Sec. 102.2(c) with the
Board in Washington, DC, and a certificate of service shall accompany
the requests. The Board may grant or deny the request for review without
awaiting a statement in opposition. No reply to the opposition may be
filed except upon special leave of the Board.
[84 FR 69599, Dec. 18, 2019]
Sec. 102.72 Filing petition with general counsel: investigation upon
motion of general counsel; transfer of petition and proceeding from region
to general counsel or to another region; consolidation of proceedings in
same region; severance; procedure before general counsel in
cases over which the general counsel has assumed jurisdiction.
(a) Whenever it appears necessary in order to effectuate the
purposes of the Act, or to avoid unnecessary costs or delay, the General
Counsel may permit a petition to be filed with him/her in Washington,
DC, or may, at any time after a petition has been filed with a Regional
Director pursuant to Sec. 102.60, order that such petition and any
proceeding that may have been instituted with respect thereto:
(1) Be transferred to and continued before him/her, for the purpose
of investigation or consolidation with any other proceeding which may
have been instituted in a Regional Office or with him/her; or
(2) Be consolidated with any other proceeding which may have been
instituted in the same region; or
(3) Be transferred to and continued in any other region, for the
purpose of investigation or consolidation with any proceeding which may
have been instituted in or transferred to such region; or
(4) Be severed from any other proceeding with which it may have been
consolidated pursuant to this section.
(b) The provisions of Sec. Sec. 102.60 to 102.71, inclusive, shall,
insofar as applicable, apply to proceedings before the general counsel
pursuant to this section, and the powers granted to regional directors
in such provisions shall, for the purpose of this section, be reserved
to and exercised by the general counsel. After the transfer of any
petition and any proceeding which may have been instituted in respect
thereto from one region to another pursuant to this section, the
provisions of this subpart shall, insofar as applicable, govern such
petition and such proceedings as if the petition has originally been
filed in the region to which the transfer was made.
(c) The Regional Director may exercise the powers in paragraphs
(a)(2) and (4) of this section with respect to proceedings pending in
his/her Region.
[32 FR 9550, July 1, 1967, as amended at 82 FR 43698, Sept. 19, 2017]
Subpart E_Procedure for Unfair Labor Practice and Representation Cases
Under Sections 8(b)(7) and 9(c) of the Act
Source: 24 FR 9102, Nov. 7, 1959. Redesignated at 82 FR 11754, Feb.
24, 2017.
[[Page 83]]
Sec. 102.73 Initiation of proceedings.
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of Section 8(b)(7) of the Act, the
Regional Director will investigate such charge, giving it the priority
specified in subpart H of this part.
[82 FR 11764, Feb. 24, 2017]
Sec. 102.74 Complaint and formal proceedings.
If it appears to the Regional Director that the charge has merit,
formal proceedings will be instituted in accordance with the procedures
described in Sec. Sec. 102.15 through 102.51, insofar as they are
applicable, and insofar as they are not inconsistent with the provisions
of this subpart. If it appears to the Regional Director that issuance of
a complaint is not warranted, the Director will decline to issue a
complaint, and the provisions of Sec. 102.19, including the provisions
for appeal to the General Counsel, are applicable unless an election has
been directed under Sec. Sec. 102.77 and 102.78, in which event the
provisions of Sec. 102.81 are applicable.
[82 FR 11764, Feb. 24, 2017]
Sec. 102.75 Suspension of proceedings on the charge where timely
petition is filed.
If it appears to the Regional Director that issuance of a complaint
may be warranted but for the pendency of a petition under Section 9(c)
of the Act, which has been filed by any proper party within a reasonable
time not to exceed 30 days from the commencement of picketing, the
Regional Director will suspend proceedings on the charge and will
proceed to investigate the petition under the expedited procedure
provided below, pursuant to the first proviso to subparagraph (C) of
Section 8(b)(7) of the Act.
[82 FR 11764, Feb. 24, 2017]
Sec. 102.76 Petition; who may file; where to file; contents.
When picketing of an employer has been conducted for an object
proscribed by Section 8(b)(7) of the Act, a petition for the
determination of a question concerning representation of the employees
of such employer may be filed in accordance with the provisions of
Sec. Sec. 102.60 and 102.61, insofar as applicable, except that if a
charge under Sec. 102.73 has been filed against the labor organization
on whose behalf picketing has been conducted, the petition will not be
required to contain a statement that the employer declines to recognize
the petitioner as the representative within the meaning of Section 9(a)
of the Act; or that the union represents a substantial number of
employees; or that the labor organization is currently recognized but
desires certification under the Act; or that the individuals or labor
organizations who have been certified or are currently recognized by the
employer are no longer the representative; or, if the petitioner is an
employer, that one or more individuals or labor organizations have
presented to the petitioner a claim to be recognized as the exclusive
representative of the employees in the unit claimed to be appropriate.
[82 FR 11764, Feb. 24, 2017]
Sec. 102.77 Investigation of petition by Regional Director;
directed election.
(a) Where a petition has been filed pursuant to Sec. 102.76 the
regional director shall make an investigation of the matters and
allegations set forth therein. Any party, and any individual or labor
organization purporting to act as representative of the employees
involved and any labor organization on whose behalf picketing has been
conducted as described in section 8(b)(7)(C) of the Act may present
documentary and other evidence relating to the matters and allegations
set forth in the petition.
(b) If, after the investigation of such petition or any petition
filed under subpart D of this part, and after the investigation of the
charge filed pursuant to Sec. 102.73, it appears to the Regional
Director that an expedited election under Section 8(b)(7)(C) of the Act
is warranted, and that the policies of the Act would be effectuated
thereby, the Regional Director shall forthwith proceed to conduct an
election by secret ballot of the employees in an appropriate unit, or
make other disposition of the matter, except that in any case
[[Page 84]]
in which it appears to the Regional Director that the proceeding raises
questions which cannot be decided without a hearing, the Director may
issue and cause to be served on the parties, individuals, and labor
organizations involved a Notice of Hearing before a Hearing Officer at a
time and place fixed therein. In this event, the method of conducting
the hearing and the procedure following, shall be governed insofar as
applicable by Sec. Sec. 102.63 through 102.68.
[24 FR 9102, Nov. 7, 1959, as amended at 26 FR 3892, May 4, 1961; 76 FR
80188, Dec. 22, 2011; 79 FR 3494, Jan. 22, 2014; 79 FR 74488, Dec. 15,
2014; 82 FR 11765, Feb. 24, 2017]
Sec. 102.78 Election procedure; method of conducting balloting;
postballoting procedure.
If no agreement such as that provided in Sec. 102.79 has been made,
the regional director shall fix the time and place of the election,
eligibility requirements for voting, and other arrangements for the
balloting. The method of conducting the balloting and the postballoting
procedure shall be governed, insofar as applicable, by the provisions of
Sec. Sec. 102.69 and 102.70 except that the labor organization on whose
behalf picketing has been conducted may not have its name removed from
the ballot without the consent of the regional director and except that
the regional director's rulings on any objections or challenged ballots
shall be final unless the Board grants special permission to appeal from
the regional director's rulings. Any request for such permission shall
be filed promptly, in writing, and shall briefly state the grounds
relied upon. The party requesting review shall immediately serve a copy
thereof on each other party. A request for review shall not operate as a
stay of the regional director's rulings unless so ordered by the Board.
Sec. 102.79 Consent-election agreements.
Where a petition has been duly filed, the parties involved may,
subject to the approval of the regional director, enter into an
agreement governing the method of conducting the election as provided
for in Sec. 102.62(a), insofar as applicable.
Sec. 102.80 Dismissal of petition; refusal to process petition under
expedited procedure.
(a) If, after a petition has been filed pursuant to the provisions
of Sec. 102.76, and prior to the close of the hearing, it shall appear
to the regional director that further proceedings in respect thereto in
accordance with the provisions of Sec. 102.77 are not warranted, he may
dismiss the petition by administrative action, and the action of the
regional director shall be final, subject to a prompt appeal to the
Board on special permission which may be granted by the Board. Upon such
appeal the provisions of Sec. 102.71 shall govern insofar as
applicable. Such appeal shall not operate as a stay unless specifically
ordered by the Board.
(b) If it shall appear to the regional director that an expedited
election is not warranted but that proceedings under subpart C of this
part are warranted, he/she shall so notify the parties in writing with a
simple statement of the grounds for his/her decision.
(c) Where the regional director, pursuant to Sec. Sec. 102.77 and
102.78, has determined that a hearing prior to election is not required
to resolve the issues raised by the petition and has directed an
expedited election, any party aggrieved may file a request with the
Board for special permission to appeal from such determination. Such
request shall be filed promptly, in writing, and shall briefly state the
grounds relied upon. The party requesting such appeal shall immediately
serve a copy thereof on each other party. Should the Board grant the
requested permission to appeal, such action shall not, unless
specifically ordered by the Board, operate as a stay of any action by
the regional director.
[24 FR 9102, Nov. 7, 1959, as amended at 26 FR 3892, May 4, 1961; 82 FR
43699, Sept. 19, 2017]
Sec. 102.81 Review by the general counsel of refusal to proceed on
charge; resumption of proceedings upon charge held during pendency of
petition; review by the general counsel of refusal to proceed on related
charge.
(a) Where an election has been directed by the Regional Director or
the
[[Page 85]]
Board in accordance with the provisions of Sec. Sec. 102.77 and 102.78,
the Regional Director shall decline to issue a complaint on the charge,
and he/she shall so advise the parties in writing, accompanied by a
simple statement of the procedural or other grounds for his/her action.
The person making the charge may obtain a review of such action by
filing an appeal with the general counsel in Washington, DC, and filing
a copy of the appeal with the regional director, within 7 days from the
service of the notice of such refusal by the regional director. In all
other respects the appeal shall be subject to the provisions of Sec.
102.19. Such appeal shall not operate as a stay of any action by the
regional director.
(b) Where an election has not been directed and the petition has
been dismissed in accordance with the provisions of Sec. 102.80, the
regional director shall resume investigation of the charge and shall
proceed in accordance with Sec. 102.74.
(c) If in connection with an 8(b)(7) proceeding, unfair labor
practice charges under other sections of the Act have been filed and the
Regional Director upon investigation has declined to issue a complaint
upon such charges, he/she shall so advise the parties in writing,
accompanied by a simple statement of the procedural or other grounds for
his/her action. The person making such charges may obtain a review of
such action by filing an appeal with the general counsel in Washington,
DC, and filing a copy of the appeal with the regional director, within 7
days from the service of the notice of such refusal by the regional
director. In all other respects the appeal shall be subject to the
provisions of Sec. 102.19.
[32 FR 9550, July 1, 1967, as amended at 51 FR 23749, July 1, 1986; 82
FR 43699, Sept. 19, 2017]
Sec. 102.82 Transfer, consolidation, and severance.
The provisions of Sec. Sec. 102.33 and 102.72, respecting the
filing of a charge or petition with the general counsel and the
transfer, consolidation, and severance of proceedings, shall apply to
proceedings under this subpart, except that the provisions of Sec. Sec.
102.73 to 102.81, inclusive, shall govern proceedings before the general
counsel.
Subpart F_Procedure for Referendum Under Section 9(e) of the Act
Source: 24 FR 9102, Nov. 7, 1959. Redesignated at 82 FR 11754, Feb.
24, 2017.
Sec. 102.83 Petition for referendum under Section 9(e)(1) of the Act;
who may file; where to file; withdrawal.
A petition to rescind the authority of a labor organization to make
an agreement requiring as a condition of employment membership in such
labor organization may be filed by an employee or group of employees on
behalf of 30 percent or more of the employees in a bargaining unit
covered by such an agreement. The petition shall be in writing and
signed, and either must be sworn to before a notary public, Board agent,
or other person duly authorized by law to administer oaths and take
acknowledgments or must contain a declaration by the person signing it,
under the penalties of the Criminal Code, that its contents are true and
correct to the best of his/her knowledge and belief. One original of the
petition must be filed with the Regional Director wherein the bargaining
unit exists or, if the unit exists in two or more Regions, with the
Regional Director for any of such Regions. A person filing a petition by
facsimile must also file an original for the Agency's records, but
failure to do so must not affect the validity of the filing by
facsimile, if otherwise proper. A person filing a petition
electronically need not file an original. The petition may be withdrawn
only with the approval of the Regional Director with whom such petition
was filed. Upon approval of the withdrawal of any petition the case will
be closed.
[82 FR 11765, Feb. 24, 2017, as amended at 82 FR 43699, Sept. 19, 2017]
Sec. 102.84 Contents of petition to rescind authority.
(a) The name of the employer.
(b) The address of the establishments involved.
(c) The general nature of the employer's business.
(d) A description of the bargaining unit involved.
[[Page 86]]
(e) The name and address of the labor organization whose authority
it is desired to rescind.
(f) The number of employees in the unit.
(g) Whether there is a strike or picketing in progress at the
establishment involved and, if so, the approximate number of employees
participating, and the date such strike or picketing commenced.
(h) The date of execution and of expiration of any contract in
effect covering the unit involved.
(i) The name and address of the petitioner, and the name, title,
address, telephone number, facsimile number, and email address of the
individual who will serve as the representative of the petitioner and
accept service of all papers for purposes of the proceeding.
(j) A statement that 30 percent or more of the bargaining unit
employees covered by an agreement between their employer and a labor
organization made pursuant to Section 8(a)(3) of the Act, desire that
the authority to make such an agreement be rescinded.
(k) Any other relevant facts.
(l) Evidence supporting the statement that 30 percent or more of the
bargaining unit employees desire to rescind the authority of their
employer and labor organization to enter into an agreement made pursuant
to Section 8(a)(3) of the Act. Such evidence must be filed together with
the petition, but must not be served on any other party.
(m) Evidence filed pursuant to paragraph (l) of this section
together with a petition that is filed by facsimile or electronically,
which includes original signatures that cannot be transmitted in their
original form by the method of filing of the petition, may be filed by
facsimile or in electronic form provided that the original documents are
received by the regional director no later than 2 days after the
facsimile or electronic filing.
(n) The type, date(s), time(s) and location(s) of the election
sought.
[24 FR 9102, Nov. 7, 1959, as amended at 79 FR 74489, Dec. 15, 2014; 82
FR 11765, Feb. 24, 2017]
Sec. 102.85 Investigation of petition by Regional Director;
consent referendum; directed referendum.
Where a petition has been filed pursuant to Sec. 102.83, and it
appears to the Regional Director that the petitioner has made an
appropriate showing, in such form as the Regional Director may
determine, that 30 percent or more of the employees within a unit
covered by an agreement between their employer and a labor organization
requiring membership in such labor organization desire to rescind the
authority of such labor organization to make such an agreement, the
Regional Director will proceed to conduct a secret ballot of the
employees involved on the question whether they desire to rescind the
authority of the labor organization to make such an agreement with their
employer, except that, in any case in which it appears to the Regional
Director that the proceeding raises questions which cannot be decided
without a hearing, the Director may issue and cause to be served on the
parties a Notice of Hearing before a Hearing Officer at a time and place
fixed therein. The Regional Director will fix the time and place of the
election, eligibility requirements for voting, and other arrangements of
the balloting, but the parties may enter into an agreement, subject to
the approval of the Regional Director, fixing such arrangements. In any
such consent agreements, provision may be made for final determination
of all questions arising with respect to the balloting by the Regional
Director or upon grant of a request for review, by the Board.
[82 FR 11765, Feb. 24, 2017]
Sec. 102.86 Hearing; posthearing procedure.
The method of conducting the hearing and the procedure following the
hearing will be governed, insofar as applicable, by Sec. Sec. 102.63
through 102.68.
[82 FR 11765, Feb. 24, 2017]
Sec. 102.87 Method of conducting balloting; postballoting procedure.
The method of conducting the balloting and the postballoting
procedure
[[Page 87]]
will be governed by the provisions of Sec. 102.69, insofar as
applicable.
[82 FR 11765, Feb. 24, 2017]
Sec. 102.88 Refusal to conduct referendum; appeal to Board.
If, after a petition has been filed, and prior to the close of the
hearing, it appears to the Regional Director that no referendum should
be conducted, the Regional Director will dismiss the petition by
administrative action. Such dismissal will be in writing and accompanied
by a simple statement of the procedural or other grounds. The petitioner
may obtain a review of such action by filing a request therefor with the
Board in Washington, DC, and filing a copy of such request with the
Regional Director and the other parties within 14 days from the service
of notice of such dismissal. The request must contain a complete
statement setting forth the facts and reasons upon which the request is
based.
[82 FR 11765, Feb. 24, 2017]
Subpart G_Procedure to Hear and Determine Disputes Under Section 10(k)
of the Act
Source: 82 FR 11766, Feb. 24, 2017, unless otherwise noted.
Sec. 102.89 Initiation of proceedings.
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of Section 8(b)(4)(D) of the Act, the
Regional Director of the office in which such charge is filed or to
which it is referred will, as soon as possible after the charge has been
filed, serve on the parties a copy of the charge and will investigate
such charge and if it is deemed appropriate to seek injunctive relief of
a district court pursuant to Section 10(l) of the Act, the Regional
Director will give it priority over all other cases in the office except
other cases under Section 10(l) and cases of like character.
Sec. 102.90 Notice of hearing; hearing; proceedings before the Board;
briefs; determination of dispute.
If it appears to the Regional Director that the charge has merit and
the parties to the dispute have not submitted satisfactory evidence to
the Regional Director that they have adjusted, or have agreed-upon
methods for the voluntary adjustment of, the dispute out of which such
unfair labor practice has arisen, the Regional Director will serve on
all parties to such dispute a Notice of Hearing under Section 10(k) of
the Act before a Hearing Officer at a time and place stated in the
Notice. The hearing date will not be less than 10 days after service of
the notice of the filing of the charge. The Notice of Hearing must
contain a simple statement of the issues involved in such dispute. Such
Notice will be issued promptly, and, in cases in which it is deemed
appropriate to seek injunctive relief pursuant to Section 10(l) of the
Act, will normally be issued within 5 days of the date upon which
injunctive relief is first sought. Hearings will be conducted by a
Hearing Officer, and the procedure will conform, insofar as applicable,
to the procedure set forth in Sec. Sec. 102.64 through 102.68. Upon the
close of the hearing, the proceeding will be transferred to the Board,
and the Board will proceed either promptly upon the record, or after
oral argument, or the submission of briefs, or further hearing, to
determine the dispute or otherwise dispose of the matter. Parties who
desire to file a brief with the Board must do so within 7 days after the
close of the hearing. However, no briefs will be filed in cases
designated in the Notice of Hearing as involving the national defense,
and the parties, after the close of the evidence, may argue orally upon
the record their respective contentions and positions; except that, upon
application for leave to file briefs expeditiously made to the Board in
Washington, DC, after the close of the hearing, the Board may for good
cause shown, grant leave to file briefs and set a time for filing.
Simultaneously upon such filing, a copy must be served on the other
parties. No reply brief may be filed except upon special leave of the
Board.
[[Page 88]]
Sec. 102.91 Compliance with determination; further proceedings.
If, after issuance of the determination by the Board, the parties
submit to the Regional Director satisfactory evidence that they have
complied with the determination, the Regional Director will dismiss the
charge. If no satisfactory evidence of compliance is submitted, the
Regional Director will proceed with the charge under Section 8(b)(4)(D)
and Section 10 of the Act and the procedure prescribed in Sec. Sec.
102.9 through 102.51 will, insofar as applicable, govern. However, if
the Board determination is that employees represented by a Charged Union
are entitled to perform the work in dispute, the Regional Director will
dismiss the charge as to that union irrespective of whether the employer
has complied with that determination.
Sec. 102.92 Review of determination.
The record of the proceeding under Section 10(k) and the
determination of the Board will become a part of the record in such
unfair labor practice proceeding and may be subject to judicial review
in proceedings to enforce or review the final order of the Board under
Section 10(e) and (f) of the Act.
Sec. 102.93 Alternative procedure.
If, either before or after service of the Notice of Hearing, the
parties submit to the Regional Director satisfactory evidence that they
have adjusted the dispute, the Regional Director will dismiss the charge
and will withdraw the Notice of Hearing if Notice has issued. If, either
before or after issuance of the Notice of Hearing, the parties submit to
the Regional Director satisfactory evidence that they have agreed-upon
methods for the voluntary adjustment of the dispute, the Regional
Director will defer action upon the charge and will withdraw the Notice
of Hearing if Notice has issued. If it appears to the Regional Director
that the dispute has not been adjusted in accordance with such agreed-
upon methods and that an unfair labor practice within the meaning of
Section 8(b)(4)(D) of the Act is occurring or has occurred, the Regional
Director may issue a complaint under Sec. 102.15, and the procedure
prescribed in Sec. Sec. 102.9 through 102.51 will, insofar as
applicable, govern; and Sec. Sec. 102.90 through 102.92 are
inapplicable, except that if an agreed-upon method for voluntary
adjustment results in a determination that employees represented by a
Charged Union are entitled to perform the work in dispute, the Regional
Director will dismiss the charge as to that union irrespective of
whether the employer has complied with that determination.
Subpart H_Procedure in Cases Under Section 10(j), (l), and (m) of the
Act
Source: 82 FR 11766, Feb. 24, 2017, unless otherwise noted.
Sec. 102.94 Expeditious processing of Section 10(j) cases.
(a) Whenever temporary relief or a restraining order pursuant to
Section 10(j) of the Act has been procured by the Board, the complaint
which has been the basis for such temporary relief or restraining order
will be heard expeditiously and the case will be given priority by the
Board in its successive steps following the issuance of the complaint
(until ultimate enforcement or dismissal by the appropriate circuit
court of appeals) over all other cases except cases of like character
and cases under Section 10(l) and (m) of the Act.
(b) In the event the Administrative Law Judge hearing a complaint,
concerning which the Board has procured temporary relief or a
restraining order pursuant to Section 10(j), recommends a dismissal in
whole or in part of such complaint, the chief law officer will promptly
suggest to the district court which issued such temporary relief or
restraining order the possible change in circumstances arising out of
the findings and recommendations of the Administrative Law Judge.
Sec. 102.95 Priority of cases pursuant to Section 10(l) and (m)
of the Act.
(a) Whenever a charge is filed alleging the commission of an unfair
labor practice within the meaning of Section 8(b)(4)(A), (B), (C),
8(b)(7), or 8(e) of the Act, the Regional Office in which such charge is
filed or to which it is referred
[[Page 89]]
will give it priority over all other cases in the office except cases of
like character and cases under Section 8(b)(4)(D) in which it is deemed
appropriate to seek injunctive relief of a district court pursuant to
Section 10(l) of the Act.
(b) Whenever a charge is filed alleging the commission of an unfair
labor practice within the meaning of Section 8(a)(3) or 8(b)(2), the
Regional Office in which such charge is filed or to which it is referred
will give it priority over all other cases in the office except cases of
like character and cases under Section 10(l) of the Act.
Sec. 102.96 Issuance of complaint promptly.
Whenever injunctive relief pursuant to Section 10(l) of the Act is
sought in district court, a complaint against the party or parties
sought to be enjoined, covering the same subject matter as the
application for injunctive relief, will be issued promptly, normally
within 5 days of the date when injunctive relief is first sought, except
in cases in which a Notice of Hearing under Section 10(k) of the Act has
issued.
Sec. 102.97 Expeditious processing of Section 10(l) and (m) cases
in successive stages.
(a) Any complaint issued pursuant to Sec. 102.95(a) or, in a case
in which it is deemed appropriate to seek injunctive relief of a
district court pursuant to Section 10(l) of the Act, any complaint
issued pursuant to Sec. 102.93 or Notice of Hearing issued pursuant to
Sec. 102.90 will be heard expeditiously and the case will be given
priority in such successive steps following its issuance (until ultimate
enforcement or dismissal by the appropriate circuit court of appeals)
over all cases except cases of like character.
(b) Any complaint issued pursuant to Sec. 102.95(b) will be heard
expeditiously and the case will be given priority in its successive
steps following its issuance (until ultimate enforcement or dismissal by
the appropriate circuit court of appeals) over all cases except cases of
like character and cases under Section 10(l) of the Act.
Subpart I_Advisory Opinions and Declaratory Orders Regarding Board
Jurisdiction
Source: 24 FR 9102, Nov. 7, 1959, unless otherwise noted.
Redesignated at 82 FR 11754, Feb. 24, 2017.
Sec. 102.98 Petition for advisory opinion; who may file; where to file.
Whenever an agency or court of any State or territory is in doubt
whether the Board would assert jurisdiction over the parties in a
proceeding pending before such agency or court, the agency or court may
file a petition with the Board for an advisory opinion on whether the
Board would decline to assert jurisdiction over the parties before the
agency or the court (1) on the basis of its current standards, or (2)
because the employing enterprise is not within the jurisdiction of the
National Labor Relations Act.
[24 FR 9102, Nov. 7, 1959, as amended at 51 FR 15613, Apr. 25, 1986; 61
FR 65182, Dec. 11, 1996]
Sec. 102.99 Contents of petition for advisory opinion.
(a) A petition for an advisory opinion, when filed by an agency or
court of a State or territory, must allege the following:
(1) The name of the agency or court.
(2) The names of the parties to the proceeding and the docket
number.
(3) The nature of the proceeding, and the need for the Board's
opinion on the jurisdictional issue to the proceeding.
(4) The general nature of the business involved in the proceeding
and, where appropriate, the nature of and details concerning the
employing enterprise.
(5) The findings of the agency or court or, in the absence of
findings, a statement of the evidence relating to the commerce
operations of such business and, where appropriate, to the nature of the
employing enterprise.
(b) The petition or request must be submitted to the Board in
Washington, DC.
[82 FR 11767, Feb. 24, 2017]
Sec. 102.100 Notice of petition; service of petition.
Upon the filing of a petition, the petitioner must simultaneously
serve, in
[[Page 90]]
the manner provided by Sec. 102.5(g), a copy of the petition on all
parties to the proceeding and on the Director of the Board's Regional
Office having jurisdiction over the territorial area in which such
agency or court is located. A statement of service must be filed with
the petition as provided by Sec. 102.5(h).
[82 FR 11767, Feb. 24, 2017]
Sec. 102.101 Response to petition; service of response.
Any party served with such petition may, within 14 days after
service thereof, respond to the petition, admitting or denying its
allegations. The response must be filed with the Board in Washington,
DC. The response must simultaneously be served on all other parties to
the proceeding, and a statement of service must be filed in accordance
with the provisions of Sec. 102.5(h).
[82 FR 11767, Feb. 24, 2017]
Sec. 102.102 Intervention.
Any person desiring to intervene must file a motion for
intervention, stating the grounds upon which such person claims to have
an interest in the petition. The motion must be filed with the Board in
Washington, DC.
[82 FR 11767, Feb. 24, 2017]
Sec. 102.103 Proceedings before the Board; briefs; advisory opinions.
The Board will thereupon proceed, upon the petition, responses, and
submission of briefs, to determine whether, on the facts before it, the
commerce operations of the employer involved are such that the Board
would or would not assert jurisdiction. Such determination will be in
the form of an advisory opinion and will be served on the parties. No
briefs may be filed except upon special permission of the Board.
[82 FR 11767, Feb. 24, 2017]
Sec. 102.104 Withdrawal of petition.
The petitioner may withdraw the petition at any time prior to
issuance of the Board's advisory opinion.
[82 FR 11767, Feb. 24, 2017]
Sec. 102.105 Petitions for declaratory orders; who may file;
where to file; withdrawal.
Whenever both an unfair labor practice charge and a representation
case relating to the same employer are contemporaneously on file in a
Regional Office of the Board, and the General Counsel entertains doubt
whether the Board would assert jurisdiction over the employer involved,
the General Counsel may file a petition with the Board for a declaratory
order disposing of the jurisdictional issue in the case. Such petition
may be withdrawn at any time prior to the issuance of the Board's order.
[82 FR 11767, Feb. 24, 2017]
Sec. 102.106 Contents of petition for declaratory order.
(a) A petition for a declaratory order must allege the following:
(1) The name of the employer.
(2) The general nature of the employer's business.
(3) The case numbers of the unfair labor practice and representation
cases.
(4) The commerce data relating to the operations of such business.
(5) Whether any proceeding involving the same subject matter is
pending before an agency or court of a State or territory.
(b) The petition must be filed with the Board in Washington, DC.
[82 FR 11767, Feb. 24, 2017]
Sec. 102.107 Notice of petition; service of petition.
Upon filing a petition, the General Counsel will simultaneously
serve a copy thereof on all parties and must file a statement of service
as provided by Sec. 102.5(h).
[82 FR 11767, Feb. 24, 2017]
Sec. 102.108 Response to petition; service of response.
Any party to the representation or unfair labor practice case may,
within 14 days after service, respond to the petition, admitting or
denying its allegations. The response must be filed with the Board in
Washington, DC. The response must be served on the General Counsel and
all other parties, and a
[[Page 91]]
statement of service must be filed as provided by Sec. 102.5(h).
[82 FR 11767, Feb. 24, 2017]
Sec. 102.109 Intervention.
Any person desiring to intervene must file a motion for
intervention, stating the grounds upon which such person claims to have
an interest in the petition. The motion must be filed with the Board in
Washington, DC.
[82 FR 11767, Feb. 24, 2017]
Sec. 102.110 Proceedings before the Board; briefs; declaratory orders.
The Board will proceed, upon the petition, responses, and submission
of briefs, to determine whether, on the facts before it, the commerce
operations of the employer involved are such that the Board would or
would not assert jurisdiction over the employer. Such determination will
be made by a declaratory order, with like effect as in the case of other
orders of the Board, and will be served on the parties. Any party
desiring to file a brief must file the brief with the Board in
Washington, DC, with a statement that copies are being served
simultaneously on the other parties.
[82 FR 11767, Feb. 24, 2017]
Sec. Sec. 102.111-102.114 [Reserved]
Subpart J_Certification and Signature of Documents
Source: 82 FR 11768, Feb. 24, 11768, Feb. 24, 2017, unless otherwise
noted.
Sec. 102.115 Certification of Board papers and documents.
The Executive Secretary of the Board, or, in the event of the
Executive Secretary's absence or disability, whomever may be designated
by the Board in the Executive Secretary's place, will certify copies of
all papers and documents which are a part of any of the files or records
of the Board as necessary or desirable from time to time.
Sec. 102.116 Signature on Board orders.
The Executive Secretary, Deputy Executive Secretary, or an Associate
Executive Secretary, or, in the event of their absence or disability,
whomever may be designated by the Board in their place, is hereby
authorized to sign all orders of the Board.
Subpart K_Records and Information
Source: 82 FR 11768, Feb. 24, 2017, unless otherwise noted.
Sec. 102.117 Freedom of Information Act Regulations: Agency materials
including formal documents available pursuant to the Freedom of
Information Act;
requests for described records; time limit for response;
appeal from denial of request; fees for document search,
duplication, and review; files and records not subject to
inspection.
(a)(1) Introduction. This subpart contains the Rules that the
National Labor Relations Board (Agency) follows in processing requests
for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552.
The Rules in this subpart may be read in conjunction with the text of
the FOIA and the Uniform Freedom of Information Fee Schedule and
Guidelines published by the Office of Management and Budget (OMB
Guidelines). Some records will be made available on the Agency's Web
site at www.nlrb.gov to facilitate public access. Requests made by
individuals for records about themselves under the Privacy Act of 1974,
5 U.S.C. 552(a), are processed under Sec. 102.119.
(2) FOIA Officials. The following are designated as the Agency's
FOIA officials with responsibilities for complying with the FOIA:
(i) FOIA Officer. The Assistant General Counsel for the FOIA Branch
is the Agency's designated FOIA Officer.
(ii) Chief FOIA Officer. The Associate General Counsel for the
Division of Legal Counsel is the Agency's designated Chief FOIA Officer.
(iii) FOIA Public Liaison. The official(s) designated by the Chief
FOIA Officer is the Agency's FOIA Public Liaison, with overall
responsibilities for assisting in reducing delays, increasing
transparency, understanding the status of requests, and assisting in the
resolution of disputes. The designated FOIA
[[Page 92]]
Public Liaison is available on the Agency's Web site.
(3) Authority to respond to requests and administrative appeals. The
FOIA Officer has the authority to act upon and respond on behalf of the
Board and the General Counsel to all requests for Agency records, except
for records maintained by the Agency's Office of the Inspector General.
The Office of the Inspector General has the authority to respond to all
requests for records maintained by that Office. The Chief FOIA Officer
has the authority to respond on behalf of the Chairman of the Board and
the General Counsel to all administrative appeals of adverse
determinations. The Chief FOIA Officer's authority includes responding,
on behalf of the Chairman of the Board, to appeals of initial
determinations made by the Office of the Inspector General.
(4) Records made available. Records that are required by the FOIA
under 5 U.S.C. 552(a)(2) may be accessed through the Agency's Web site
at www.nlrb.gov.
(b)(1) Formal documents. The formal documents constituting the
record in a case or proceeding are matters of official record and, until
officially destroyed pursuant to applicable statutory authority, are
available to the public pursuant to the procedures in this section.
(2) Certification of records. The Executive Secretary will certify
copies of all formal documents maintained by the Board upon request made
a reasonable time in advance of need and payment of lawfully prescribed
costs. The Deputy General Counsel will certify copies of any record
maintained by, or originating from, the Office of General Counsel and
any division, branch, or office organizationally overseen by the Office
of the General Counsel, including any Regional, Subregional, or Resident
Office.
(c)(1) Making FOIA requests to the Agency--(i) Content of requests--
(A) Description of records sought. Requests for records must be in
writing and must reasonably describe the record so as to permit its
identification and location. To the extent possible, requesters may
include specific information, such as the NLRB case number, case name,
date(s) of record(s) requested, and/or full name of the party, author,
or recipient of the record(s) in question. Requesters should include as
much detail as practicable about the records sought. Requesters may
contact the FOIA Public Liaison to discuss the records sought and to
receive assistance in describing the records.
(B) Assumption of fees. Requests must contain a specific statement
assuming financial responsibility for the direct costs of responding to
the request in accordance with paragraph (d)(2) of this section.
(C) Specificity requirement. Requests that do not reasonably
describe the records sought or assume sufficient financial
responsibility for responding to the request, or that otherwise fail to
comply with this section, may delay the Agency's response to the
request.
(ii) Transmission of requests. Requests for records maintained by
the Agency should be made to the FOIA Branch, which is located in the
Agency's Washington, DC headquarters. The FOIA Branch is responsible for
responding to requests for records originating from, or maintained by,
the Board and the Office of the General Counsel, including Regional,
Subregional, and resident offices. Requests for records maintained by
the Agency's Office of the Inspector General may be made directly to
that office.
(A) Requesters may file FOIA requests electronically through the
Agency's Web site (https://www.nlrb.gov), which is the preferred method
of submission to allow for prompt receipt, including for requests for
records maintained by the Agency's Office of the Inspector General. FOIA
requests may also be made by mail to the Agency's Washington, DC
headquarters address, by email to the Agency's designated mailbox, or by
facsimile. The mailing address, email address, and facsimile number are
available on the Agency's Web site.
(B) Requests not made through the Agency's Web site should be
clearly marked to indicate that they contain a request for records under
the Freedom of Information Act.
(C) Requests made to an Agency division, branch, or any office other
than the FOIA Branch will be forwarded to
[[Page 93]]
the FOIA Branch by the receiving office, but in that event, the
applicable time limit for response set forth in paragraph (i) of this
section will be calculated from the date of receipt by the FOIA Branch.
The receiving office will normally forward the request to the FOIA
Branch within 10 days of the initial receipt.
(D) Requests made to the Agency for records that originated with
another governmental agency may be referred to that agency.
(2) Processing of FOIA requests--(i) Timing of response. The Agency
ordinarily responds to FOIA requests according to their order of
receipt. An initial determination will be issued within 20 working days
(i.e., exempting Saturdays, Sundays, and legal public holidays) after
the receipt of a request. Responsive records are released at the time of
the determination or, if necessary, at a time thereafter on a rolling
basis.
(ii) Expedited treatment. A request for expedited processing may be
made at any time during the pendency of a FOIA request or appeal.
Requests and appeals will be taken out of order and given expedited
treatment when warranted. A requester must provide sufficient
justification to grant such processing by showing that any one of the
following circumstances exists:
(A) The lack of expedited treatment could reasonably be expected to
pose an imminent threat to the life or physical safety of an individual;
or
(B) There is an urgency to inform the public about an actual or
alleged federal government activity, if made by a person primarily
engaged in disseminating information; or
(C) The loss of substantial due process rights; or
(D)(1) There is widespread and exceptional media interest and
possible questions exist about the government's integrity which may
affect public confidence.
(2) Within 10 calendar days of receipt of a request for expedited
processing, the Agency will decide whether to grant it and will notify
the requester of the decision. Once the determination has been made to
grant expedited processing, the request will be given priority and
processed as soon as practicable. If a request for expedited processing
is denied, the Agency will act expeditiously on any appeal of that
decision.
(iii) Initial determination of requests. Within 20 working days
after receipt of a request by the FOIA Branch, a determination will be
made whether to comply with such request, and the requester will be
notified in writing of that determination. In the case of requests made
for records maintained by the Agency's Office of the Inspector General,
that determination will be made by the Office of the Inspector General.
Requesters will be made aware of their right to seek assistance from the
Agency's FOIA Public Liaison.
(A) Grants of requests. If the determination is to comply with the
request, the records will be made promptly available to the person
making the request and, at the same time, a statement of any charges due
in accordance with the fee schedule provisions of paragraph (d)(2) of
this section will be provided.
(B) Denials of requests. If the determination is to deny the request
in any respect, the requester will be notified in writing of that
determination. The determination will set forth: The reason(s) for the
denial; the name and title or position of each person responsible for
the denial; and an estimate of the volume of records or information
withheld, in number of pages or in some other reasonable form of
estimation: However, this estimate does not need to be provided if the
volume is otherwise indicated through deletions on records disclosed in
part, or if providing an estimate would harm an interest protected by an
applicable exemption. The determination will also inform the requester
of the right to seek dispute resolution services from the Agency's FOIA
Public Liaison or the Office of Government Information Services, as well
as the right to appeal the adverse determination under the
administrative appeal provisions of paragraph (c)(2)(v) of this section.
(C) Adverse determinations may consist of: A determination to
withhold any requested record in whole or in part; a determination that
a requested
[[Page 94]]
record does not exist or cannot be located; a determination that what
has been requested is not a record subject to the FOIA; a determination
on any disputed fee matter, including a denial of a request for a fee
waiver or reduction or placement in a particular fee category; and a
denial of a request for expedited treatment. An adverse determination to
an administrative appeal by the Chief FOIA Officer will be the final
action of the Agency. An adverse determination will inform the requester
of the right to seek dispute resolution services from the Agency's FOIA
Public Liaison or the Office of Government Information Services, as well
as the right to appeal the adverse determination under the
administrative appeal provisions of paragraph (c)(2)(v) of this section.
(iv) Records containing business information. Business information
obtained by the Agency from a submitter will be disclosed under the FOIA
only consistent with the procedures established in this section.
(A) For purposes of this section:
(1) Business information means commercial or financial information
obtained by the Agency from a submitter that may be protected from
disclosure under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from whom the Agency
obtains business information, directly or indirectly. The term includes
corporations; state, local, and tribal governments; and foreign
governments.
(B) A submitter of business information will use good faith efforts
to designate, by appropriate markings, either at the time of submission
or at a reasonable time thereafter, any portions of its submission that
it considers to be protected from disclosure under Exemption 4. These
designations will expire 10 years after the date of the submission
unless the submitter requests, and provides justification for, a longer
designation period. The Agency will provide a submitter with prompt
written notice of a FOIA request or administrative appeal that seeks its
business information wherever required under paragraph (c)(2)(iv)(C) of
this section, except as provided in paragraph (c)(2)(iv)(F) of this
section, in order to give the submitter an opportunity to object to
disclosure of any specified portion of that information under paragraph
(c)(2)(iv)(D) of this section. The notice will either describe the
business information requested or include copies of the requested
records or record portions containing the information. When notification
of a voluminous number of submitters is required, notification may be
made by posting or publishing the notice in a place reasonably likely to
accomplish notification.
(C) Notice will be given to a submitter whenever: The information
has been designated in good faith by the submitter as information
considered protected from disclosure under Exemption 4; or the Agency
has reason to believe that the information may be protected from
disclosure under Exemption 4.
(D) The Agency will allow a submitter a reasonable time to respond
to the notice described in paragraph (c)(2)(iv)(B) of this section. If a
submitter has any objection to disclosure, it is required to submit a
detailed written statement. The statement must specify all grounds for
withholding any portion of the information under any exemption of the
FOIA and, in the case of Exemption 4, it must show why the information
is a trade secret or commercial or financial information that is
privileged or confidential. In the event that a submitter fails to
respond to the notice within the time specified in it, the submitter
will be considered to have no objection to disclosure of the
information. Information provided by a submitter under this paragraph
may itself be subject to disclosure under the FOIA.
(E) The Agency will consider a submitter's objections and specific
grounds for nondisclosure in deciding whether to disclose business
information. Whenever the Agency decides to disclose business
information over the objection of a submitter, the Agency will give the
submitter written notice, which will include: A statement of the
reason(s) why each of the submitter's disclosure objections was not
sustained; a description of the business information to be disclosed;
and a specified disclosure date, which will be a reasonable time
subsequent to the notice.
[[Page 95]]
(F) The notice requirements of paragraphs (c)(2)(iv)(B) and (E) of
this section will not apply if: The Agency determines that the
information may not be disclosed; the information lawfully has been
published or has been officially made available to the public;
disclosure of the information is required by statute (other than the
FOIA) or by a regulation issued in accordance with the requirements of
Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or the designation
made by the submitter under paragraph (c)(2)(iv)(B) of this section
appears obviously frivolous--except that, in such a case, the Agency
will, within a reasonable time prior to a specified disclosure date,
give the submitter written notice of any final decision to disclose the
information.
(G) Whenever a requester files a lawsuit seeking to compel the
disclosure of business information, the Agency will promptly notify the
submitter.
(H) Whenever the Agency provides a submitter with notice and an
opportunity to object to disclosure under paragraph (c)(2)(iv)(B) of
this section, the Agency will also notify the requester(s). Whenever the
Agency notifies a submitter of its intent to disclose requested
information under paragraph (c)(2)(iv)(E) of this section, the Agency
will also notify the requester(s). Whenever a submitter files a lawsuit
seeking to prevent the disclosure of business information, the Agency
will notify the requester(s).
(v) Administrative appeals. (A) An appeal from an adverse
determination made pursuant to paragraph (c)(2)(iii) of this section
must be filed within 90 calendar days of the service of the notification
of the adverse determination, in whole or in part. Appeals of adverse
determinations made by the FOIA Officer or the Office of the Inspector
General may be filed with the Division of Legal Counsel in Washington,
DC.
(B) As provided in paragraph (c)(2)(iii) of this section, an adverse
determination will notify the requester of the right to appeal the
adverse determination and will specify where such appeal may be filed.
Within 20 working days after receipt of an appeal, the Chief FOIA
Officer will make a determination with respect to such appeal and will
notify the requester in writing. If the determination is to grant the
appeal, the responsive records will be made promptly available to the
requester upon receipt of payment of any charges due in accordance with
the provisions of paragraph (d)(2) of this section. If the appeal is
denied, in whole or in part, the requester will be notified of the
reasons for the decision, the name and title or position of any person
responsible for the denial, and the provisions for judicial review of
that determination under the provisions of 5 U.S.C. Section 552(4)(B).
(C) Before seeking judicial review of an adverse determination, a
requester must first submit a timely administrative appeal.
(D) Even if no FOIA appeal is filed, the Chief FOIA Officer may,
without regard to the time limit for filing of an appeal, initiate
reconsideration of an adverse determination by issuing written notice to
the requester. In such event, the time limit for making the
determination will commence with the issuance of such notification.
(vi) Extension of time to respond to requests. In unusual
circumstances as specified in this paragraph (c)(2)(vi), the Agency may
extend the time limits prescribed in either paragraph (c)(2)(i) or (iv)
of this section by written notice to the requester setting forth the
reasons for such extension and the date on which a determination is
expected, and notifying the requester of the right to seek dispute
resolution services from the Office of Government Information Services.
The extension of time will not exceed 10 working days. As used in this
paragraph (c)(2)(vi), unusual circumstances means, but only to the
extent reasonably necessary to the proper processing of the particular
request:
(A) The need to search for and collect the requested records from
other offices in the Agency that are separate from the FOIA Branch;
(B) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are sought in a
single request;
[[Page 96]]
(C)(1) The need for consultation, which will be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or with two or more offices in the
Agency having a substantial subject matter interest in the request.
(2) If the request cannot be processed within the time limits
prescribed above, the Agency will provide the requester with an
opportunity to limit the request so that it may be processed within the
10-day extended time limit for response. The requester may also arrange
an alternative time frame with the Agency for processing the request or
a modified request. The Agency's FOIA Public Liaison is available to
assist with any issues that may arise.
(vii) Preservation of FOIA request files. The Agency will preserve
files created in response to requests for information under the FOIA and
files created in responding to administrative appeals under the FOIA
until disposition or destruction is authorized by Title 44 of the United
States Code or the National Archives and Records Administration's
General Records Schedule 4.2, item 020. Records will not be disposed of
or destroyed while they are the subject of a pending request, appeal, or
lawsuit under the FOIA.
(d)(1) Fees. For purposes of this section, the following definitions
apply:
(i) Direct costs means those expenditures which are actually
incurred in searching for and duplicating and, in the case of commercial
use requests, reviewing documents to respond to a FOIA request.
(ii) Search refers to the process of looking for and retrieving
records or information responsive to a request. It includes page-by-page
or line-by-line identification of material within documents and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. The Agency will ensure
that searches are done in the most efficient and least expensive manner
reasonably possible.
(iii) Duplication refers to the process of making a copy of a
record, or the information contained in it, necessary to respond to a
FOIA request. Such copies can take the form of paper, microfilm,
videotape, audiotape, or electronic records (e.g., magnetic tape or
disk), among others. The Agency will honor a requester's specified
preference of form or format of disclosure if the record is readily
reproducible with reasonable efforts in the requested form or format by
the office responding to the request.
(iv) Review refers to the process of examining documents located in
response to a request that is for commercial use to determine whether
any portion of it is exempt from disclosure. It includes processing any
documents for disclosure, e.g., doing all that is necessary to redact
and prepare them for disclosure. Review time includes time spent
considering any formal objection to disclosure made by a business
submitter under paragraph (c)(2)(iv) of this section, but does not
include time spent resolving general legal or policy issues regarding
the application of exemptions.
(v) Commercial use request refers to a request from or on behalf of
a person who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person on
whose behalf the request is made, which can include furthering those
interests through litigation.
(vi) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of undergraduate
higher education, an institution of graduate higher education, an
institution of professional education, or an institution of vocational
education, that operates a program of scholarly research. To be in this
category, a requester must show that the request is authorized by and is
made under the auspices of a qualifying institution and that the records
are not sought for a commercial use but are sought to further scholarly
research.
(vii) Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that is
about current events or that would be of current interest to the public.
Examples of news media entities include television or radio stations
broadcasting to the
[[Page 97]]
public at large and publishers of periodicals (but only in instances
where they can qualify as disseminators of news) who make their products
available for purchase or subscription by the general public. For
``freelance'' journalists to be regarded as working for a news
organization, they must demonstrate a solid basis for expecting
publication through that organization. A publication contract is the
clearest proof, but the Agency will also look to the past publication
record of a requester in making this determination. To be in this
category, a requester must not be seeking the requested records for
commercial use. However, a request for records supporting the news
dissemination function of the requester will not be considered to be for
a commercial use.
(viii) Working days, as used in this section, means calendar days
excepting Saturdays, Sundays, and legal holidays.
(2) Fee schedule. Requesters will be subject to a charge of fees for
the full allowable direct costs of document search, review, and
duplicating, as appropriate, in accordance with the following schedules,
procedures, and conditions:
(i) Schedule of charges:
(A) For each one-quarter hour or portion thereof of clerical time
$3.10.
(B) For each one-quarter hour or portion thereof of professional
time $9.25.
(C) For each sheet of duplication (not to exceed 8\1/2\ by 14
inches) of requested records $0.12.
(D) All other direct costs of preparing a response to a request will
be charged to the requester in the same amount as incurred by the
Agency. Such costs will include, but not be limited to: Certifying that
records are true copies; sending records to requesters or receiving
records from the Federal records storage centers by special methods such
as express mail; and, where applicable, conducting computer searches for
information and for providing information in electronic format.
(ii) Fees incurred in responding to information requests are to be
charged in accordance with the following categories of requesters:
(A) Commercial use requesters will be assessed charges to recover
the full direct costs for searching for, reviewing for release, and
duplicating the records sought. Requesters must reasonably describe the
records sought.
(B) Educational institution requesters will be assessed charges for
the cost of reproduction alone, excluding charges for the first 100
pages. To be eligible for inclusion in this category, requesters must
show that the request is being made under the auspices of a qualifying
institution and that the records are not sought for commercial use, but
are sought in furtherance of scholarly research. Requesters must
reasonably describe the records sought.
(C) Requesters who are representatives of the news media will be
assessed charges for the cost of reproduction alone, excluding charges
for the first 100 pages. To be eligible for inclusion in this category,
a requester must meet the criteria in paragraph (d)(1)(vii) of this
section, and the request must not be made for commercial use. In
reference to this class of requester, a request for records supporting
the news dissemination function of the requester will not be considered
to be a request for commercial use. Requesters must reasonably describe
the records sought.
(D) All other requesters, not elsewhere described, will be assessed
charges to recover the full reasonable direct cost of searching for and
reproducing records that are responsive to the request, except that the
first 100 pages of reproduction and the first 2 hours of search time
will be furnished without charge. Requesters must reasonably describe
the records sought.
(E) Absent a reasonably based factual showing that a requester may
be placed in a particular user category, fees will be imposed as
provided for in the commercial use requester category.
(iii) Unusual fee circumstances. (A) In no event will fees be
imposed on any requester when the total charges are less than $5, which
is the Agency's cost of collecting and processing the fee itself.
(B) If the Agency reasonably believes that a requester or a group of
requesters acting together is attempting to divide a request into a
series of requests for the purpose of avoiding fees, the Agency may
aggregate those requests and charge accordingly. The Agency
[[Page 98]]
may presume that multiple requests of this type made within a 30-day
period have been made to avoid fees. Where requests are separated by a
longer period, the Agency will aggregate them only where there exists a
solid basis for determining that aggregation is warranted under all the
circumstances involved. Multiple requests involving unrelated matters
will not be aggregated.
(iv) Requests for fee waiver or reduction. Documents are to be
furnished without charge or at reduced levels if disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the Government and is not primarily in the commercial interest of the
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return will not be
presumed to primarily serve the public interest. A fee waiver or
reduction is justified where the public interest standard is satisfied
and that public interest is greater in magnitude than that of any
identified commercial interest in disclosure. Where only some of the
requested records satisfy the requirements for a fee waiver, a waiver
will be granted for those records.
(v) Failure to pay fees. If a requester fails to pay chargeable fees
that were incurred as a result of the Agency's processing of the
information request, beginning on the 31st day following the date on
which the notification of charges was sent, the Agency may assess
interest charges against the requester in the manner prescribed in 31
U.S.C. Section 3717. Where appropriate, other steps permitted by federal
debt collection statutes, including disclosure to consumer reporting
agencies, use of collection agencies, and offset, will be used by the
Agency to encourage payment of amounts overdue.
(vi) Assumption of financial responsibility for processing requests.
Each request for records must contain a specific statement assuming
financial liability, in full or to a specified maximum amount, for
charges, in accordance with paragraphs (d)(2)(i) and (ii) of this
section, which may be incurred by the Agency in responding to the
request. If the anticipated charges exceed the maximum limit stated by
the person making the request, or if the request contains no assumption
of financial liability or charges, the requester will be notified and
afforded an opportunity to assume financial liability. In either case,
the request for records will not be deemed received for purposes of the
applicable time limit for response until a written assumption of
financial liability is received. The Agency may require a requester to
make an advance payment of anticipated fees under the following
circumstances:
(A) If the anticipated charges are likely to exceed $250, the Agency
will notify the requester of the likely cost and obtain satisfactory
assurance of full payment when the requester has a history of prompt
payment of FOIA fees, or require an advance payment of an amount up to
the full estimated charges in the case of requesters with no history of
payment.
(B) If a requester has previously failed to pay fees that have been
charged in processing a request within 30 days of the date the
notification of fees was sent, the requester will be required to pay the
entire amount of fees that are owed, plus interest as provided for in
paragraph (d)(2)(v) of this section, before the Agency will process a
further information request. In addition, the Agency may require advance
payment of fees that the Agency estimates will be incurred in processing
the further request before the Agency commences processing that request.
When the Agency acts under paragraph (d)(2)(vi)(A) or (B) of this
section, the administrative time limits for responding to a request or
an appeal from initial determinations will begin to run only after the
Agency has received the fee payments required in paragraph (d)(2) of
this section.
(vii) Fees may be charged even if no documents are provided. Charges
may be imposed even though the search discloses no records responsive to
the request, or if records located are determined to be exempt from
disclosure.
[[Page 99]]
Sec. 102.118 Present and former Board employees prohibited from
producing documents and testifying; production of witnesses' statements
after direct testimony.
(a) Prohibition on producing files and documents. Except as provided
in Sec. 102.117 respecting requests cognizable under the Freedom of
Information Act, no present or former employee or specially designated
agent of the Agency will produce or present any files, documents,
reports, memoranda, or records of the Board or of the General Counsel,
whether in response to a subpoena duces tecum or otherwise, without the
written consent of the Board or the Chairman of the Board if the
document is in Washington, DC, and in control of the Board; or of the
General Counsel if the document is in a Regional Office of the Board or
is in Washington, DC, and in the control of the General Counsel. A
request that such consent be granted must be in writing and must
identify the documents to be produced, the nature of the pending
proceeding, and the purpose to be served by the production of the
documents.
(b) Prohibition on testifying. No present or former employee or
specially designated agent of the Agency will testify on behalf of any
party to any cause pending in any court or before the Board, or any
other board, commission, or other administrative agency of the United
States, or of any State, territory, or the District of Columbia, or any
subdivisions thereof, with respect to any information, facts, or other
matter coming to that person's knowledge in that person's official
capacity or with respect to the contents of any files, documents,
reports, memoranda, or records of the Board or of the General Counsel,
whether in answer to a subpoena or otherwise, without the written
consent of the Board or the Chairman of the Board if the person is in
Washington, DC, and subject to the supervision or control of the Board
or was subject to such supervision or control when formerly employed at
the Agency; or of the General Counsel if the person is in a Regional
Office of the Agency or is in Washington, DC, and subject to the
supervision or control of the General Counsel or was subject to such
supervision or control when formerly employed at the Agency. A request
that such consent be granted must be in writing and must identify the
person whose testimony is desired, the nature of the pending proceeding,
and the purpose to be served by the testimony of the official.
(c) Motion to quash subpoena. Whenever any subpoena ad testificandum
or subpoena duces tecum, the purpose of which is to adduce testimony or
require the production of records as described above, has been served on
any present or former employee or specially designated agent of the
Agency, that person will, unless otherwise expressly directed by the
Board or the Chairman of the Board or the General Counsel, as the case
may be, move pursuant to the applicable procedure, whether by petition
to revoke, motion to quash, or otherwise, to have such subpoena
invalidated on the ground that the evidence sought is privileged against
disclosure by this Rule.
(d) Prohibition on disclosure of personal information. No present or
former employee or specially designated agent of the Agency will, by any
means of communication to any person or to another agency, disclose
personal information about an individual from a record in a system of
records maintained by this Agency, as more fully described in the
notices of systems of records published by this Agency in accordance
with the provisions of Section (e)(4) of the Privacy Act of 1974, 5
U.S.C. 552a(e)(4), or by the Notices of Government-wide Systems of
Personnel Records published by the Civil Service Commission in
accordance with those statutory provisions, except pursuant to a written
request by, or with the prior written consent of, the individual to whom
the record pertains, unless disclosure of the record would be in
accordance with the provisions of Section (b)(1) through (11), both
inclusive, of the Privacy Act of 1974, 5 U.S.C. 552a(b)(1) through (11).
(e) Production of statement for cross-examination. Notwithstanding
the prohibitions of paragraphs (a) and (b) of this section, after a
witness called by the General Counsel or by the Charging Party has
testified in a hearing upon a complaint under Section 10(c) of the
[[Page 100]]
Act, the Administrative Law Judge must, upon motion of the Respondent,
order the production of any statement, as defined paragraph (g) of this
section, of such witness in the possession of the General Counsel which
relates to the subject matter as to which the witness has testified.
(1) If the entire contents of any such statement relate to the
subject matter of the testimony of the witness, the Administrative Law
Judge must order the statement to be delivered directly to the
respondent for examination and use for the purpose of cross-examination.
(2) If the General Counsel claims that any statement ordered to be
produced under this section contains matter which does not relate to the
subject matter of the testimony of the witness, the Administrative Law
Judge will order the General Counsel to deliver the statement for the
inspection of the Administrative Law Judge in camera. Upon delivery, the
Administrative Law Judge will excise the portions of such statement
which do not relate to the subject matter of the testimony of the
witness except that the Administrative Law Judge has discretion to
decline to excise portions which, although not relating to the subject
matter of the testimony of the witness, do relate to other matters
raised by the pleadings. With the material excised, the Administrative
Law Judge will then direct delivery of the statement to the Respondent
for use on cross-examination. If any portion of the statement is
withheld and the Respondent objects to the withholding, the General
Counsel will preserve the entire text of the statement, and, if the
Respondent files exceptions with the Board based upon such withholding,
make the entire text available to the Board for the purpose of
determining the correctness of the ruling of the Administrative Law
Judge. If the General Counsel elects not to comply with an order of the
Administrative Law Judge directing delivery to the Respondent of any
statement, or portion thereof as the Administrative Law Judge may
direct, the Administrative Law Judge will strike from the record the
testimony of the witness.
(f) Production of statement in postelection hearings. The provisions
of paragraph (e) of this section will also apply after any witness has
testified in any postelection hearing pursuant to Sec. 102.69(d) and
any party has moved for the production of any statement, as defined in
paragraph (g) of this section, of the witness in possession of any agent
of the Board which relates to the subject matter as to which the witness
has testified. The authority exercised by the Administrative Law Judge
under paragraph (e) of this section will be exercised by the Hearing
Officer presiding.
(g) Definition of statement. The term statement as used in this
section means:
(1) A written statement made by the witness and signed or otherwise
adopted or approved by the witness; or
(2) A stenographic, mechanical, electrical, or other recording, or a
transcription thereof, which is a substantially verbatim recital of an
oral statement made by the witness to an agent of the party obligated to
produce the statement and recorded contemporaneously with the making of
the oral statement.
[82 FR 11768, Feb. 24, 2017, as amended at 82 FR 43699, Sept. 19, 2017]
Sec. 102.119 Privacy Act Regulations: Notification as to whether a
system of records contains records pertaining to requesting individuals;
requests for
access to records, amendment of such records, or accounting of
disclosures; time limits for response; appeal from denial of
requests; fees for document duplication; files and records
exempted from certain Privacy Act requirements.
(a)(1) An individual will be informed whether a system of records
maintained by the Agency contains a record pertaining to such
individual. An inquiry may be made in writing or in person during normal
business hours to the official of the Agency designated for that purpose
and at the address set forth in a notice of a system of records
published by this Agency, in a Notice of Systems of Government-wide
Personnel Records published by the Office of Personnel Management, or in
a Notice of Government-wide Systems of Records published by the
Department of Labor. Copies of such notices, and
[[Page 101]]
assistance in preparing an inquiry, may be obtained from any Regional
Office of the Board or at the Board offices in Washington, DC. The
inquiry may contain sufficient information, as defined in the notice, to
identify the record.
(2) Reasonable verification of the identity of the inquirer, as
described in paragraph (e) of this section, will be required to assure
that information is disclosed to the proper person. The Agency will
acknowledge the inquiry in writing within 10 days (excluding Saturdays,
Sundays, and legal public holidays) and, wherever practicable, the
acknowledgment will supply the information requested. If, for good cause
shown, the Agency cannot supply the information within 10 days, the
inquirer will within that time period be notified in writing of the
reasons therefor and when it is anticipated the information will be
supplied. An acknowledgment will not be provided when the information is
supplied within the 10-day period. If the Agency refuses to inform an
individual whether a system of records contains a record pertaining to
an individual, the inquirer will be notified in writing of that
determination and the reasons therefor, and of the right to obtain
review of that determination under the provisions of paragraph (f) of
this section. The provisions of this paragraph (a)(2) do not apply to
the extent that requested information from the relevant system of
records has been exempted from this Privacy Act requirement.
(b)(1) An individual will be permitted access to records pertaining
to such individual contained in any system of records described in the
notice of system of records published by the Agency, or access to the
accounting of disclosures from such records. The request for access must
be made in writing or in person during normal business hours to the
person designated for that purpose and at the address set forth in the
published notice of system of records. Copies of such notices, and
assistance in preparing a request for access, may be obtained from any
Regional Office of the Board or at the Board offices in Washington, DC.
Reasonable verification of the identity of the requester, as described
in paragraph (e) of this section, will be required to assure that
records are disclosed to the proper person. A request for access to
records or the accounting of disclosures from such records will be
acknowledged in writing by the Agency within 10 days of receipt
(excluding Saturdays, Sundays, and legal public holidays) and, wherever
practicable, the acknowledgment will inform the requester whether access
will be granted and, if so, the time and location at which the records
or accounting will be made available. If access to the record of
accounting is to be granted, the record or accounting will normally be
provided within 30 days (excluding Saturdays, Sundays, and legal public
holidays) of the request, unless for good cause shown the Agency is
unable to do so, in which case the individual will be informed in
writing within that 30-day period of the reasons therefor and when it is
anticipated that access will be granted. An acknowledgment of a request
will not be provided if the record is made available within the 10-day
period.
(2) If an individual's request for access to a record or an
accounting of disclosure from such a record under the provisions of this
paragraph (b) is denied, the notice informing the individual of the
denial will set forth the reasons therefor and advise the individual of
the right to obtain a review of that determination under the provisions
of paragraph (f) of this section. The provisions of this paragraph
(b)(2) do not apply to the extent that requested information from the
relevant system of records has been exempted from this Privacy Act
requirement.
(c) An individual granted access to records pertaining to such
individual contained in a system of records may review all such records.
For that purpose, the individual may be accompanied by a person of the
individual's choosing, or the record may be released to the individual's
representative who has written consent of the individual, as described
in paragraph (e) of this section. A first copy of any such record or
information will ordinarily be provided without charge to the individual
or representative in a form comprehensible to the individual. Fees for
any other copies of requested records will
[[Page 102]]
be assessed at the rate of 12 cents for each sheet of duplication.
(d) An individual may request amendment of a record pertaining to
such individual in a system of records maintained by the Agency. A
request for amendment of a record must be in writing and submitted
during normal business hours to the person designated for that purpose
and at the address set forth in the published notice for the system of
records containing the record of which amendment is sought. Copies of
such notices, and assistance in preparing a request for amendment, may
be obtained from any Regional Office of the Board or at the Board
offices in Washington, DC. The requester must provide verification of
identity as described in paragraph (e) of this section, and the request
must set forth the specific amendment requested and the reason for the
requested amendment. The Agency will acknowledge in writing receipt of
the request within 10 days of receipt (excluding Saturdays, Sundays, and
legal public holidays) and, whenever practicable, the acknowledgement
will advise the individual of the determination of the request. If the
review of the request for amendment cannot be completed and a
determination made within 10 days, the review will be completed as soon
as possible, normally within 30 days (Saturdays, Sundays, and legal
public holidays excluded) of receipt of the request unless unusual
circumstances preclude completing the review within that time, in which
event the requester will be notified in writing within that 30-day
period of the reasons for the delay and when the determination of the
request may be expected. If the determination is to amend the record,
the requester will be so notified in writing and the record will be
amended in accordance with that determination. If any disclosures
accountable under the provisions of 5 U.S.C. 552a(c) have been made, all
previous recipients of the record which was amended must be advised of
the amendment and its substance. If it is determined that the request
may not be granted, the requester will be notified in writing of that
determination and of the reasons therefor, and advised of the right to
obtain review of the adverse determination under the provisions of
paragraph (f) of this section. The provisions of this paragraph (d) do
not apply to the extent that requested information from the relevant
system of records has been exempted from this Privacy Act requirement.
(e) Verification of the identification of individuals required under
paragraphs (a), (b), (c), and (d) of this section to assure that records
are disclosed to the proper person will be required by the Agency to an
extent consistent with the nature, location, and sensitivity of the
records being disclosed. Disclosure of a record to an individual will
normally be made upon the presentation of acceptable identification.
Disclosure of records by mail may be made on the basis of the
identifying information set forth in the request. Depending on the
nature, location, and sensitivity of the requested record, a signed
notarized statement verifying identity may be required by the Agency.
Proof of authorization as representative to have access to a record of
an individual must be in writing, and a signed notarized statement of
such authorization may be required by the Agency if the record requested
is of a sensitive nature.
(f)(1) Review may be obtained with respect to:
(i) A refusal, under paragraph (a) or (g) of this section, to inform
an individual if a system of records contains a record concerning that
individual;
(ii) A refusal, under paragraph (b) or (g) of this section, to grant
access to a record or an accounting of disclosure from such a record; or
(iii) A refusal, under paragraph (d) of this section, to amend a
record.
(iv) The request for review may be made to the Chairman of the Board
if the system of records is maintained in the office of a Member of the
Board, the Office of the Executive Secretary, the Office of the
Solicitor, the Office of Congressional and Public Affairs, or the
Division of Administrative Law Judges. Consistent with the provisions of
Section 3(d) of the Act, and the delegation of authority from the Board
to the General Counsel, the request may be made to the General Counsel
if the system of records is maintained by an office of the Agency other
than those
[[Page 103]]
enumerated above. Either the Chairman of the Board or the General
Counsel may designate in writing another officer of the Agency to review
the refusal of the request. Such review will be completed within 30 days
(excluding Saturdays, Sundays, and legal public holidays) from the
receipt of the request for review unless the Chairman of the Board or
the General Counsel, as the case may be, for good cause shown, extends
such 30-day period.
(2) If, upon review of a refusal under paragraph (a) or (g) of this
section, the reviewing officer determines that the individual may be
informed of whether a system of records contains a record pertaining to
that individual, such information will be promptly provided. If the
reviewing officer determines that the information was properly denied,
the individual will be so informed in writing with a brief statement of
the reasons therefor.
(3) If, upon review of a refusal under paragraph (b) or (g) of this
section, the reviewing officer determines that access to a record or to
an accounting of disclosures may be granted, the requester will be so
notified and the record or accounting will be promptly made available to
the requester. If the reviewing officer determines that the request for
access was properly denied, the individual will be so informed in
writing with a brief statement of the reasons therefor, and of the right
to judicial review of that determination under the provisions of 5
U.S.C. 552a(g)(1)(B).
(4) If, upon review of a refusal under paragraph (i) of this
section, the reviewing official grants a request to amend, the requester
will be so notified, the record will be amended in accordance with the
determination, and, if any disclosures accountable under the provisions
of 5 U.S.C. 552a(c) have been made, all previous recipients of the
record which was amended will be advised of the amendment and its
substance. If the reviewing officer determines that the denial of a
request for amendment may be sustained, the Agency will advise the
requester of the determination and the reasons therefor, and that the
individual may file with the Agency a concise statement of the reason
for disagreeing with the determination, and may seek judicial review of
the Agency's denial of the request to amend the record. In the event a
statement of disagreement is filed, that statement:
(i) Will be made available to anyone to whom the record is
subsequently disclosed together with, at the discretion of the Agency, a
brief statement summarizing the Agency's reasons for declining to amend
the record; and
(ii) Will be supplied, together with any Agency statements, to any
prior recipients of the disputed record to the extent that an accounting
of disclosure was made.
(g) To the extent that portions of systems of records described in
notices of Government-wide systems of records published by the Office of
Personnel Management are identified by those notices as being subject to
the management of an officer of this Agency, or an officer of the Agency
is designated as the official to contact for information, access, or
contents of those records, individual requests for access to those
records, requests for their amendment, and review of denials of requests
for amendment will be in accordance with the provisions of 5 CFR 297.101
through 297.501, as promulgated by the Office of Personnel Management.
To the extent that portions of systems of records described in notices
of Government-wide systems of records published by the Department of
Labor are identified by those notices as being subject to the management
of an officer of the Agency, or an officer of the Agency is designated
as the official to contact for information, access, or contents of those
records, individual requests for access to those records, requests for
their amendment, and review of denials of requests for amendment will be
in accordance with the provisions of this section. Review of a refusal
to inform an individual whether such a system of records contains a
record pertaining to that individual and review of a refusal to grant an
individual's request for access to a record in such a system may be
obtained in accordance with the provisions of paragraph (f) of this
section.
(h) Pursuant to 5 U.S.C. 552a(j)(2), the system of records
maintained by the Office of the Inspector General of the National Labor
Relations Board that
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contains Investigative Files will be exempted from the provisions of 5
U.S.C. 552a, except subsections (b), (c)(1) and (2), (e)(4)(A) through
(F), (e)(6), (7), (9), (10), and (11), and (i), from 29 CFR 102.117(c)
and (d), and from 29 CFR 102.119(a), (b), (c), (d), (e), and (f),
insofar as the system contains investigatory material compiled for
criminal law enforcement purposes.
(i) Pursuant to 5 U.S.C. 552a(k)(2), the system of records
maintained by the Office of the Inspector General of the National Labor
Relations Board that contains the Investigative Files must be exempted
from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f),
from 29 CFR 102.117(c) and (d), and from 29 CFR 102.119(a), (b), (c),
(d), (e), and (f), insofar as the system contains investigatory material
compiled for law enforcement purposes not within the scope of the
exemption at 29 CFR 102.119(h).
(j) Privacy Act exemptions contained in paragraphs (h) and (i) of
this section are justified for the following reasons:
(1) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of
each disclosure of records available to the individual named in the
record at that individual's request. These accountings must state the
date, nature, and purpose of each disclosure of a record and the name
and address of the recipient. Accounting for each disclosure would alert
the subjects of an investigation to the existence of the investigation
and the fact that they are subjects of the investigation. The release of
such information to the subjects of an investigation would provide them
with significant information concerning the nature of the investigation
and could seriously impede or compromise the investigation, endanger the
physical safety of confidential sources, witnesses, law enforcement
personnel, and their families and lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of testimony.
(2) 5 U.S.C. 552a(c)(4) requires an agency to inform any person or
other agency about any correction or notation of dispute made by the
agency in accordance with subsection (d) of the Act. Since this system
of records is being exempted from subsection (d) of the Act, concerning
access to records, this section is inapplicable to the extent that this
system of records will be exempted from subsection (d) of the Act.
(3) 5 U.S.C. 552a(d) requires an agency to permit an individual to
gain access to records pertaining to the individual, to request
amendment to such records, to request a review of an agency decision not
to amend such records, and to contest the information contained in such
records. Granting access to records in this system of records could
inform the subject of an investigation of an actual or potential
criminal violation, of the existence of that investigation, of the
nature and scope of the information and evidence obtained as to the
individual's activities, or of the identity of confidential sources,
witnesses, and law enforcement personnel and could provide information
to enable the subject to avoid detection or apprehension. Granting
access to such information could seriously impede or compromise an
investigation, endanger the physical safety of confidential sources,
witnesses, law enforcement personnel, and their families, lead to the
improper influencing of witnesses, the destruction of evidence, or the
fabrication of testimony, and disclose investigative techniques and
procedures. In addition, granting access to such information could
disclose classified, security-sensitive, or confidential business
information and could constitute an unwarranted invasion of the personal
privacy of others.
(4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required by statute or
by executive order of the President. The application of this provision
could impair investigations and law enforcement because it is not always
possible to detect the relevance or necessity of specific information in
the early stages of an investigation. Relevance and necessity are often
questions of judgment and timing, and it is only after the information
is evaluated that the relevance and necessity of such information can be
established. In
[[Page 105]]
addition, during the course of the investigation, the investigator may
obtain information which is incidental to the main purpose of the
investigative jurisdiction of another agency. Such information cannot
readily be segregated. Furthermore, during the course of the
investigation, the investigator may obtain information concerning the
violation of laws other than those which are within scope of the
investigator's jurisdiction. In the interest of effective law
enforcement, OIG investigators may retain this information, since it can
aid in establishing patterns of criminal activity and can provide
valuable leads for other law enforcement agencies.
(5) 5 U.S.C. 552a(e)(2) requires an agency to collect information to
the greatest extent practicable directly from the subject individual
when the information may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs.
The application of this provision could impair investigations and law
enforcement by alerting the subject of an investigation, thereby
enabling the subject to avoid detection or apprehension, to influence
witnesses improperly, to destroy evidence, or to fabricate testimony.
Moreover, in certain circumstances, the subject of an investigation
cannot be required to provide information to investigators and
information must be collected from other sources. Furthermore, it is
often necessary to collect information from sources other than the
subject of the investigation to verify the accuracy of the evidence
collected.
(6) 5 U.S.C. 552a(e)(3) requires an agency to inform each person
whom it asks to supply information, on a form that can be retained by
the person, of the authority under which the information is sought and
whether disclosure is mandatory or voluntary; of the principal purposes
for which the information is intended to be used; of the routine uses
which may be made of the information; and of the effects on the person,
if any, of not providing all or any part of the requested information.
The application of this provision could provide the subject of an
investigation with substantial information about the nature of that
investigation that could interfere with the investigation. Moreover,
providing such a notice to the subject of an investigation could
seriously impede or compromise an undercover investigation by revealing
its existence and could endanger the physical safety of confidential
sources, witnesses, and investigators by revealing their identities.
(7) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a
Federal Register notice concerning its procedures for notifying an
individual, at the individual's request, if the system of records
contains a record pertaining to the individual, how to gain access to
such a record, and how to contest its content. Since this system of
records is being exempted from subsection (f) of the Act, concerning
agency rules, and subsection (d) of the Act, concerning access to
records, these requirements are inapplicable to the extent that this
system of records will be exempt from subsections (f) and (d) of the
Act. Although the system would be exempt from these requirements, OIG
has published information concerning its notification, access, and
contest procedures because, under certain circumstances, OIG could
decide it is appropriate for an individual to have access to all or a
portion of the individual's records in this system of records.
(8) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal
Register notice concerning the categories of sources of records in the
system of records. Exemption from this provision is necessary to protect
the confidentiality of the sources of information, to protect the
privacy and physical safety of confidential sources and witnesses, and
to avoid the disclosure of investigative techniques and procedures.
Although the system will be exempt from this requirement, OIG has
published such a notice in broad generic terms.
(9) 5 U.S.C. 552a(e)(5) requires an agency to maintain its records
with such accuracy, relevance, timeliness, and completeness as is
reasonably necessary to assure fairness to the individual in making any
determination about the individual. Since the Act defines maintain to
include the collection of information, complying with this provision
could prevent the collection of any data not shown to be accurate,
[[Page 106]]
relevant, timely, and complete at the moment it is collected. In
collecting information for criminal law enforcement purposes, it is not
possible to determine in advance what information is accurate, relevant,
timely, and complete. Facts are first gathered and then placed into a
logical order to prove or disprove objectively the criminal behavior of
an individual. Material which seems unrelated, irrelevant, or incomplete
when collected can take on added meaning or significance as the
investigation progresses. The restrictions of this provision could
interfere with the preparation of a complete investigative report,
thereby impeding effective law enforcement.
(10) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when any record on such
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. Complying
with this provision could prematurely reveal an ongoing criminal
investigation to the subject of the investigation.
(11) 5 U.S.C. 552a(f)(1) requires an agency to promulgate rules that
establish procedures whereby an individual can be notified in response
to the individual's request if any system of records named by the
individual contains a record pertaining to the individual. The
application of this provision could impede or compromise an
investigation or prosecution if the subject of an investigation were
able to use such rules to learn of the existence of an investigation
before it could be completed. In addition, mere notice of the fact of an
investigation could inform the subject and others that their activities
are under or may become the subject of an investigation and could enable
the subjects to avoid detection or apprehension, to influence witnesses
improperly, to destroy evidence, or to fabricate testimony. Since this
system would be exempt from subsection (d) of the Act, concerning access
to records, the requirements of subsection (f)(2) through (5) of the
Act, concerning agency rules for obtaining access to such records, are
inapplicable to the extent that this system of records will be exempted
from subsection (d) of the Act. Although this system would be exempt
from the requirements of subsection (f) of the Act, OIG has promulgated
rules which establish agency procedures because, under certain
circumstances, it could be appropriate for an individual to have access
to all or a portion of the individual's records in this system of
records.
(12) 5 U.S.C. 552a(g) provides for civil remedies if an agency fails
to comply with the requirements concerning access to records under
subsections (d)(1) and (3) of the Act; maintenance of records under
subsection (e)(5) of the Act; and any other provision of the Act, or any
rule promulgated thereunder, in such a way as to have an adverse effect
on an individual. Since this system of records would be exempt from
subsections (c) (3) and (4), (d), (e)(1), (2), and (3) and (4)(G)
through (I), (e)(5), and (8), and (f) of the Act, the provisions of
subsection (g) of the Act would be inapplicable to the extent that this
system of records will be exempted from those subsections of the Act.
(k) Pursuant to 5 U.S.C. 552a(k)(2), the system of records
maintained by the NLRB containing Agency Disciplinary Case Files
(Nonemployees) are exempt from the provisions of 5 U.S.C. 552a (c)(3),
(d), (e)(1), (e)(4) (G), (H), and (I), and (f) insofar as the system
contains investigatory material compiled for law enforcement purposes
other than material within the scope of 5 U.S.C. 552a(j)(2).
(l) The Privacy Act exemption set forth in paragraph (k) of this
section is claimed on the ground that the requirements of subsections
(c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of the Privacy
Act, if applied to Agency Disciplinary Case Files, would seriously
impair the ability of the NLRB to conduct investigations of alleged or
suspected violations of the NLRB's misconduct rules, as set forth in
paragraphs (j)(1), (3), (4), (7), (8), and (11) of this section.
(m) Pursuant to 5 U.S.C. 552a(k)(2), investigatory material compiled
for law enforcement purposes that is contained in the Next Generation
Case Management System (NxGen) (NLRB-33), are exempt from the provisions
of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
[[Page 107]]
(e)(4)(H), (e)(4)(I), and (f). This information was formerly contained
within the following legacy systems, which remain accessible and which
also are exempt pursuant to 5 U.S.C. 552a(k)(2), as follows:
(1) The following three legacy systems of records are exempt in
their entirety from provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G), (e)(4)(H), (e)(4)(I), and (f), because the systems contain
investigatory material compiled for law enforcement purposes, other than
material within the scope of 5 U.S.C. 552a(j)(2): Case Activity Tracking
System (CATS) and Associated Regional Office Files (NLRB-25), Regional
Advice and Injunction Litigation System (RAILS) and Associated
Headquarters Files (NLRB-28), and Appeals Case Tracking System (ACTS)
and Associated Headquarters Files (NLRB-30).
(2) Pursuant to 5 U.S.C. 552a(k)(2), limited categories of
information from the following four systems of records are exempt from
the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I), and (f), insofar as the systems contain
investigatory material compiled for law enforcement purposes, other than
material within the scope of 5 U.S.C. 552a(j)(2):
(i) The legacy Judicial Case Management Systems-Pending Case List
(JCMS-PCL) and Associated Headquarters Files (NLRB-21)--information
relating to requests to file injunctions under 29 U.S.C. 160(j),
requests to initiate federal court contempt proceedings, certain
requests that the Board initiate litigation or intervene in non-Agency
litigation, and any other investigatory material compiled for law
enforcement purposes;
(ii) The legacy Solicitor's System (SOL) and Associated Headquarters
Files (NLRB-23)--information relating to requests to file injunctions
under 29 U.S.C. 160(j), requests to initiate federal court contempt
proceedings, certain requests that the Board initiate litigation or
intervene in non-Agency litigation, and any other investigatory material
compiled for law enforcement purposes;
(iii) The legacy Special Litigation Case Tracking System (SPLIT) and
Associated Headquarters Files (NLRB-27)--information relating to
investigative subpoena enforcement cases, injunction and mandamus
actions regarding Agency cases under investigation, bankruptcy case
information in matters under investigation, Freedom of Information Act
cases involving investigatory records, certain requests that the Board
initiate litigation or intervene in non-Agency litigation, and any other
investigatory material compiled for law enforcement purposes; and
(iv) The Freedom of Information Act Tracking System (FTS) and
Associated Agency Files (NLRB-32)--information requested under the
Freedom of Information Act, 5 U.S.C. 552, that relates to the Agency's
investigation of unfair labor practice and representation cases or other
proceedings described in paragraphs (m)(1) and (2) of this section.
(n) The reasons for exemption under 5 U.S.C. 552a(k)(2) are as
follows:
(1) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting of
each disclosure of records available to the individual named in the
record at such individual's request. These accountings must state the
date, nature, and purpose of each disclosure of a record, and the name
and address of the recipient. Providing such an accounting of
investigatory information to a party in an unfair labor practice or
representation matter under investigation could inform that individual
of the precise scope of an Agency investigation, or the existence or
scope of another law enforcement investigation. Accordingly, this
Privacy Act requirement could seriously impede or compromise either the
Agency's investigation, or another law enforcement investigation, by
causing the improper influencing of witnesses, retaliation against
witnesses, destruction of evidence, or fabrication of testimony.
(2) 5 U.S.C. 552a(d) requires an agency to permit an individual to
gain access to records pertaining to such individual, to request
amendment to such records, to request review of an agency decision not
to amend such records, and, where the Agency refuses to amend records,
to submit a statement of disagreement to be included with the records.
Such disclosure of investigatory information could seriously impede or
compromise the Agency's investigation by revealing the identity of
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confidential sources or confidential business information, or causing
the improper influencing of witnesses, retaliation against witnesses,
destruction of evidence, fabrication of testimony, or unwarranted
invasion of the privacy of others. Amendment of the records could
interfere with ongoing law enforcement proceedings and impose an undue
administrative burden by requiring investigations to be continuously
reinvestigated.
(3) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required by statute or
by executive order of the President. This requirement could foreclose
investigators from acquiring or receiving information the relevance and
necessity of which is not readily apparent and could only be ascertained
after a complete review and evaluation of all the evidence.
(4) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a
Federal Register notice concerning its procedures for notifying an
individual, at the individual's request, if the system of records
contains a record pertaining to the individual, for gaining access to
such a record, and for contesting its content. Because certain
information from these systems of records is exempt from subsection (d)
of the Act concerning access to records, and consequently, from
subsection (f) of the Act concerning Agency rules governing access,
these requirements are inapplicable to that information.
(5) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal
Register notice concerning the categories of sources of records in the
system of records. Exemption from this provision is necessary to protect
the confidentiality of sources of information, to protect against the
disclosure of investigative techniques and procedures, to avoid threats
or reprisals against informers by subjects of investigations, and to
protect against informers refusing to give full information to
investigators for fear of having their identities as sources revealed.
(6) 5 U.S.C. 552a(f) requires an agency to promulgate rules for
notifying individuals of Privacy Act rights granted by subsection (d) of
the Act concerning access and amendment of records. Because certain
information from these systems is exempt from subsection (d) of the Act,
the requirements of subsection (f) of the Act are inapplicable to that
information.
(o) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), (5), (6), and (7) of
the Privacy Act, the system of records maintained by the NLRB containing
Personnel Security Records shall be exempted from the provisions of 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) insofar
as the system may contain:
(1) Records properly classified pursuant to an Executive Order,
within the meaning of section 552(b)(1);
(2) Investigatory material compiled for law enforcement purposes
other than material within the scope of 5 U.S.C. 552a(j)(2);
(3) Information maintained in connection with providing protective
services to the President of the United States or other individuals
pursuant to section 3056 of title 18 of the U.S. Code;
(4) Investigatory material compiled solely for the purpose of
determining suitability, eligibility or qualifications for Federal
civilian employment and Federal contact or access to classified
information;
(5) Testing and examination materials used for a personnel
investigation for employment or promotion in the Federal service;
(6) Evaluation materials, compiled during the course of a personnel
investigation, that are used solely to determine potential for promotion
in the armed services.
(p) The Privacy Act exemptions contained in paragraph (o) of this
section are justified for the following reasons:
(1)(i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting
of each disclosure of records available to the individual named in the
record at his/her request. These accountings must state the date,
nature, and purpose of each disclosure of a record and the name and
address of the recipient. 5 U.S.C. 552a(d) requires an agency to permit
an individual to gain access to records pertaining to him/her, to
request amendment to such records, to request a review of an agency
decision
[[Page 109]]
not to amend such records, and to contest the information contained in
such records.
(ii) Personnel investigations may contain properly classified
information which pertains to national defense and foreign policy
obtained from another Federal agency. Application of exemption 5 U.S.C.
552a(k)(1) is necessary to preclude an individual's access to and
amendment of such classified information under 5 U.S.C. 552a(d).
(iii) Personnel investigations may contain investigatory material
compiled for law enforcement purposes other than material within the
scope of 5 U.S.C. 552a(j)(2). Application of exemption 5 U.S.C.
552a(k)(2) is necessary to preclude an individual's access to or
amendment of such records under 5 U.S.C. 552a(c)(3) and (d).
(iv) Personnel investigations may also contain information obtained
from another Federal agency that relates to providing protective
services to the President of the United States or other individuals
pursuant to 18 U.S.C. 3056. Application of exemption 5 U.S.C. 552a(k)(3)
is necessary to preclude an individual's access to and amendment of such
records under 5 U.S.C. 552a(d).
(v) Exemption 5 U.S.C. 552a(k)(5) is claimed with respect to the
requirements of 5 U.S.C. 552a(c)(3) and (d) because this system contains
investigatory material compiled solely for determining suitability,
eligibility, and qualifications for Federal employment. To the extent
that the disclosure of material would reveal the identity of a source
who furnished information to the Government under an express promise
that the identity of the source would be held in confidence, or prior to
September 27, 1975, under an implied promise that the identity of the
source would be held in confidence, the applicability of exemption 5
U.S.C. 552a(k)(5) will be required to honor promises of confidentiality
should an individual request access to or amendment of the record, or
access to the accounting of disclosures of the record. Similarly,
personnel investigations may contain evaluation material used to
determine potential for promotion in the armed services. Application of
exemption 5 U.S.C. 552a(k)(7) is necessary to the extent that the
disclosure of data would compromise the anonymity of a source under an
express promise that the identity of the source would be held in
confidence, or, prior to September 27, 1975, under an implied promise
that the identity of the source would be held in confidence. Both of
these exemptions are necessary to safeguard the integrity of background
investigations by minimizing the threat of harm to confidential sources,
witnesses, and law enforcement personnel. Additionally, these exemptions
reduce the risks of improper influencing of sources, the destruction of
evidence, and the fabrication of testimony.
(vi) All information in this system that meets the criteria
articulated in exemption 5 U.S.C. 552a(k)(6) is exempt from the
requirements of 5 U.S.C. 552a(d), relating to access to and amendment of
records by an individual. This exemption is claimed because portions of
this system relate to testing or examining materials used solely to
determine individual qualifications for appointment or promotion to the
Federal service. Access to or amendment to this information by an
individual would compromise the objectivity and fairness of the testing
or examining process.
(2) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required by statute or
by executive order of the President. This requirement could foreclose
investigators from acquiring or receiving information the relevance and
necessity of which is not readily apparent and could only be ascertained
after a complete review and evaluation of all the evidence. This system
of records is exempt from this requirement because in the course of
personnel background investigations, the accuracy of information
obtained or introduced occasionally may be unclear, or the information
may not be strictly relevant or necessary to favorably or unfavorably
adjudicate a specific investigation at a specific point in time.
However, in the interests of protecting the public trust and national
security,
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it is appropriate to retain all information that may aid in establishing
patterns in such areas as criminal conduct, alcohol and drug use,
financial dishonesty, allegiance, foreign preference or influence, and
psychological conditions, that are relevant to future personnel security
or suitability determinations.
(3) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a
Federal Register notice concerning its procedures for notifying an
individual, at his/her request, if the system of records contains a
record pertaining to him/her, how to gain access to such a record and
how to contest its content. Since this system of records is being
exempted from subsection (f) of the Privacy Act, concerning agency
rules, and subsection (d) of the Privacy Act, concerning access to
records, these requirements are inapplicable to the extent that this
system of records will be exempt from subsections (f) and (d) of the
Privacy Act. Although the system would be exempt from these
requirements, the NLRB has published information concerning its
notification, access, and contest procedures because, under certain
circumstances, it may be appropriate for a subject to have access to a
portion of that individual's records in this system of records.
(4) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal
Register notice concerning the categories of sources of records in the
system of records. Exemption from this provision is necessary to protect
the confidentiality of the sources of information, to protect the
privacy and physical safety of confidential sources and witnesses, and
to avoid the disclosure of investigative techniques and procedures.
Although the system will be exempt from this requirement, the agency has
published source information in the accompanying notice in broad generic
terms.
(5) 5 U.S.C. 552a(f) requires an agency to promulgate rules which
shall establish procedures whereby an individual can be notified in
response to a request if any system of records named by the individual
contains a record pertaining to that individual. The application of this
provision could compromise the progress of an investigation concerning
the suitability, eligibility, and fitness for service of applicants for
Federal employment and impede a prompt assessment of the appropriate
access to the Agency's facilities. Although this system would be exempt
from the requirements of subsection (f) of the Privacy Act, the Agency
has promulgated rules which establish agency procedures because, under
certain circumstances, it could be appropriate for an individual to have
access to all or a portion of that individual's records in this system
of records.
(q) Pursuant to 5 U.S.C. 552a(k)(1), (2), and (5), the system of
records maintained by the NLRB containing NLRB iTrak and Banned Entry
List records shall be exempted from the provisions of 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) insofar as the
system may contain:
(1) Records properly classified pursuant to an Executive order,
within the meaning of 5 U.S.C. 552(b)(1);
(2) Investigatory material compiled for law enforcement purposes
other than material within the scope of 5 U.S.C. 552a(j)(2); and
(3) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for Federal
civilian employment, military service, Federal contracts or access to
classified information.
(r) The Privacy Act exemptions contained in paragraph (q) of this
section are justified for the following reasons:
(1)(i) 5 U.S.C. 552a(c)(3) requires an agency to make the accounting
of each disclosure of records available to the individual named in the
record at his/her request. These accountings must state the date,
nature, and purpose of each disclosure of a record and the name and
address of the recipient. 5 U.S.C. 552a(d) requires an agency to permit
an individual to gain access to records pertaining to him/her, to
request amendment to such records, to request a review of an agency
decision not to amend such records, and to contest the information
contained in such records.
(ii) iTrak and Banned Entry List records may contain properly
classified information which pertains to national defense and foreign
policy obtained
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from another Federal agency. Application of exemption (k)(1) is
necessary to preclude an individual's access to and amendment of such
classified information under 5 U.S.C. 552a(d), which would pose a risk
of harm to national defense and foreign policy interests.
(iii) iTrak and Banned Entry List records may contain investigatory
material compiled for law enforcement purposes other than material
within the scope of 5 U.S.C. 552a(j)(2). Application of exemption (k)(2)
is necessary to preclude an individual's access to or amendment of such
records under 5 U.S.C. 552a(c)(3) and (d), which would pose a risk of
harm to law enforcement interests. Specifically, this exemption is
necessary to safeguard the integrity of law enforcement investigations
by minimizing the threat of harm to confidential sources, witnesses, and
law enforcement personnel. Additionally, this exemption reduces the
risks of improper influencing of sources, the destruction of evidence,
and the fabrication of testimony.
(iv) Exemption (k)(5) is claimed with respect to the requirements of
5 U.S.C. 552a(c)(3) and (d) because this system contains investigatory
material compiled solely for determining suitability, eligibility, and
qualifications for Federal employment. To the extent that the disclosure
of material would reveal the identity of a source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence, or, prior to September 27,
1975, under an implied promise that the identity of the source would be
held in confidence, the applicability of exemption (k)(5) will be
required to honor promises of confidentiality should an individual
request access to or amendment of the record, or access to the
accounting of disclosures of the record. This exemption is necessary to
safeguard the integrity of security investigations by minimizing the
threat of harm to confidential sources, witnesses, and law enforcement
personnel. Additionally, this exemption reduces the risks of improper
influencing of sources, the destruction of evidence, and the fabrication
of testimony.
(2) 5 U.S.C. 552a(e)(1) requires an agency to maintain in its
records only such information about an individual as is relevant and
necessary to accomplish a purpose of the agency required by statute or
by Executive order of the President. This requirement could foreclose
investigators from acquiring or receiving information the relevance and
necessity of which is not readily apparent and could only be ascertained
after a complete review and evaluation of all the evidence. This system
of records is exempt from this requirement because in the course of
security investigations, the accuracy of information obtained or
introduced occasionally may be unclear, or the information may not be
strictly relevant or necessary to favorably or unfavorably adjudicate a
specific investigation at a specific point in time. However, in the
interests of protecting the public trust and national security, it is
appropriate to retain all information that may aid in establishing
patterns in such areas as criminal conduct, alcohol and drug use,
financial dishonesty, allegiance, foreign preference or influence, and
psychological conditions, that are relevant to future security
determinations.
(3) 5 U.S.C. 552a(e)(4)(G) and (H) require an agency to publish a
Federal Register notice concerning its procedures for notifying an
individual, at his/her request, if the system of records contains a
record pertaining to him/her, how to gain access to such a record, and
how to contest its content. Since this system of records is being
exempted from subsection (f) of the Privacy Act concerning agency rules,
and subsection (d) of the Privacy Act concerning access to records,
these requirements are inapplicable to the extent that this system of
records will be exempt from subsections (d) and (f) of the Act. Although
the system would be exempt from these requirements, the NLRB has
published information concerning its notification, access, and contest
procedures because, under certain circumstances, it may be appropriate
for a subject to have access to a portion of that individual's records
in this system of records.
(4) 5 U.S.C. 552a(e)(4)(I) requires an agency to publish a Federal
Register notice concerning the categories of sources of records in the
system of
[[Page 112]]
records. Exemption from this provision is necessary to protect the
confidentiality of the sources of information, to protect the privacy
and physical safety of confidential sources and witnesses, and to avoid
the disclosure of investigative techniques and procedures. Although the
system will be exempt from this requirement, the agency has published
source information in the accompanying notice in broad generic terms.
(5) 5 U.S.C. 552a(f) requires an agency to promulgate rules which
shall establish procedures whereby an individual can be notified in
response to a request if any system of records named by the individual
contains a record pertaining to that individual. The application of this
provision could compromise the progress of a law enforcement
investigation regarding security and impede a prompt assessment of the
appropriate access to the Agency's facilities. Although this system
would be exempt from the requirements of subsection (f) of the Act, the
Agency has promulgated rules which establish agency procedures because,
under certain circumstances, it could be appropriate for an individual
to have access to all or a portion of that individual's records in this
system of records.
[82 FR 11754, Feb. 24, 2017, as amended at 84 FR 70425, Dec. 23, 2020;
85 FR 75855, Nov. 27, 2020]
Subpart L_Post-Employment Restrictions on Activities by Former Officers
and Employees
Sec. 102.120 Post-employment restrictions on activities by former
officers and employees.
Former officers and employees of the Agency who were attached to any
of its Regional Offices or the Washington staff are subject to the
applicable post-employment restrictions imposed by 18 U.S.C. 207.
Guidance concerning those restrictions may be obtained from the
Designated Agency Ethics Officer and any applicable regulations issued
by the Office of Government Ethics.
[82 FR 11768, Feb. 24, 2017]
Subpart M_Construction of Rules
Source: 82 FR 11768, Feb. 24, 2017, unless otherwise noted.
Sec. 102.121 Rules to be liberally construed.
The Rules and Regulations in this part will be liberally construed
to effectuate the purposes and provisions of the Act.
Sec. Sec. 102.122-102.123 [Reserved]
Sec. 102.124 Petitions for issuance, amendment, or repeal of rules.
Any interested person may petition the Board, in writing, for the
issuance, amendment, or repeal of a rule or regulation. An original of
such petition must be filed with the Board and must state the rule or
regulation proposed to be issued, amended, or repealed, together with a
statement of grounds in support of such petition.
Sec. 102.125 Action on petition.
Upon the filing of such petition, the Board will consider the same
and may either grant or deny the petition in whole or in part, conduct
an appropriate hearing thereon, or make other disposition of the
petition. Should the petition be denied in whole or in part, prompt
notice will be given of the denial, accompanied by a simple statement of
the grounds unless the denial is self-explanatory.
Subpart N [Reserved]
Subpart O_Amendments
Source: 82 FR 11778, Feb. 24, 2017, unless otherwise noted.
Subpart P_Ex Parte Communications
Authority: Sec. 6, National Labor Relations Act, as amended (49
Stat. 452; 29 U.S.C. 156).
Source: 42 FR 13113, Mar. 8, 1977, unless otherwise noted.
[[Page 113]]
Sec. 102.126 Unauthorized communications.
(a) No interested person outside this Agency may, in an on-the-
record proceeding of the types defined in Sec. 102.128, make or
knowingly cause to be made any prohibited ex parte communication to
Board agents of the categories designated in that Section relevant to
the merits of the proceeding.
(b) No Board agent of the categories defined in Sec. 102.128,
participating in a particular proceeding as defined in that section,
may:
(i) Request any prohibited ex parte communications; or
(ii) Make or knowingly cause to be made any prohibited ex parte
communications about the proceeding to any interested person outside
this Agency relevant to the merits of the proceeding.
[82 FR 11778, Feb. 24, 2017]
Sec. 102.127 Definitions.
When used in this subpart:
(a) The term person outside this Agency, to whom the prohibitions
apply includes any individual outside this Agency, partnership,
corporation, association, or other entity, or an agent thereof, and the
General Counsel or the General Counsel's representative when prosecuting
an unfair labor practice proceeding before the Board pursuant to Section
10(b) of the Act.
(b) The term ex parte communication means an oral or written
communication not on the public record with respect to which reasonable
prior notice to all parties is not given, subject however, to the
provisions of Sec. Sec. 102.129 and 102.130.
[42 FR 13113, Mar. 8, 1977, as amended at 82 FR 11778, Feb. 24, 2017]
Sec. 102.128 Types of on-the-record proceedings; categories of Board
agents; duration of prohibition.
Unless otherwise provided by specific order of the Board entered in
the proceeding, the prohibition of Sec. 102.126 will be applicable in
the following types of on-the-record proceedings to unauthorized ex
parte communications made to the designated categories of Board agents
who participate in the decision, from the stage of the proceeding
specified until the issues are finally resolved by the Board for the
purposes of that proceeding under prevailing rules and practices:
(a) In a pre-election proceeding pursuant to Section 9(c)(1) or
9(e), or in a unit clarification or certification amendment proceeding
pursuant to Section 9(b) of the Act, in which a formal hearing is held,
communications to the Regional Director and the Director's staff who
review the record and prepare a draft of the decision, and Board Members
and their staff, from the time the hearing is opened.
(b) In a postelection proceeding pursuant to Section 9(c)(1) or 9(e)
of the Act, in which a formal hearing is held, communications to the
Hearing Officer, the Regional Director and the Director's staff who
review the record and prepare a draft of the report or decision, and
Board Members and their staff, from the time the hearing is opened.
(c) In a postelection proceeding pursuant to Section 9(c)(1) or
9(e), or in a unit clarification or certification amendment proceeding
pursuant to Section 9(b) of the Act, in which no formal hearing is held,
communications to Board Members and their staff, from the time the
Regional Director's report or decision is issued.
(d) In a proceeding pursuant to Section 10(k) of the Act,
communications to Board Members and their staff, from the time the
hearing is opened.
(e) In an unfair labor practice proceeding pursuant to Section 10(b)
of the Act, communications to the Administrative Law Judge assigned to
hear the case or to make rulings upon any motions or issues therein and
Board Members and their staff, from the time the complaint and/or Notice
of Hearing is issued, or the time the communicator has knowledge that a
complaint or Notice of Hearing will be issued, whichever occurs first.
(f) In any other proceeding to which the Board by specific order
makes the prohibition applicable, to the categories of personnel and
from the stage of the proceeding specified in the order.
[82 FR 11778, Feb. 24, 2017]
[[Page 114]]
Sec. 102.129 Communications prohibited.
Except as provided in Sec. 102.130, ex parte communications
prohibited by Sec. 102.126 include:
(a) Such communications, when written, if copies are not
contemporaneously served by the communicator on all parties to the
proceeding in accordance with the provisions of Sec. 102.5(g).
(b) Such communications, when oral, unless advance notice is given
by the communicator to all parties in the proceeding and adequate
opportunity afforded to them to be present.
[82 FR 11778, Feb. 24, 2017]
Sec. 102.130 Communications not prohibited.
Ex parte communications prohibited by Sec. 102.126 do not include
oral or written communications or requests:
(a) Which relate solely to matters which the Hearing Officer,
Regional Director, Administrative Law Judge, or Board Member is
authorized by law or Board Rules to entertain or dispose of on an ex
parte basis.
(b) For information solely with respect to the status of a
proceeding.
(c) Which all the parties to the proceeding agree, or which the
responsible official formally rules, may be made on an ex parte basis.
(d) Proposing settlement or an agreement for disposition of any or
all issues in the proceeding.
(e) Which concern matters of general significance to the field of
labor-management relations or administrative practice and which are not
specifically related to pending on-the-record proceedings.
(f) From the General Counsel to the Board when the General Counsel
is acting as counsel for the Board.
[82 FR 11778, Feb. 24, 2017]
Sec. 102.131 Solicitation of prohibited communications.
No person may knowingly and willfully solicit the making of an
unauthorized ex parte communication by any other person.
[82 FR 11778, Feb. 24, 2017]
Sec. 102.132 Reporting of prohibited communications; penalties.
(a) Any Board agent of the categories defined in Sec. 102.128 to
whom a prohibited oral ex parte communication is attempted to be made
shall refuse to listen to the communication, inform the communicator of
this rule, and advise the communicator that anything may be said in
writing with copies to all parties. Any Board agent who receives, or who
makes or knowingly causes to be made, an unauthorized ex parte
communication will place or cause to be placed on the public record of
the proceeding:
(1) The communication, if it was written;
(2) A memorandum stating the substance of the communication, if it
was oral;
(3) All written responses to the prohibited communication; and
(4) Memoranda stating the substance of all oral responses to the
prohibited communication.
(b) The Executive Secretary, if the proceeding is then pending
before the Board, the Administrative Law Judge, if the proceeding is
then pending before any such judge, or the Regional Director, if the
proceeding is then pending before a Hearing Officer or the Regional
Director, will serve copies of all such materials placed on the public
record of the proceeding on all other parties to the proceeding and on
the attorneys of record for the parties. Within 14 days after service of
such copies, any party may file with the Executive Secretary,
Administrative Law Judge, or Regional Director serving the
communication, and serve on all other parties, a statement setting forth
facts or contentions to rebut those contained in the prohibited
communication. All such responses will be placed in the public record of
the proceeding, and provision may be made for any further action,
including reopening of the record which may be required under the
circumstances. No action taken pursuant to this provision will
constitute a waiver of the power of the Board to impose an appropriate
penalty under Sec. 102.133.
[82 FR 11778, Feb. 24, 2017]
[[Page 115]]