PART 2423—UNFAIR LABOR PRACTICE PROCEEDINGS Authority: 3 U.S.C. 431; 5 U.S.C. 7134. Source: 62 FR 40916, July 31, 1997, unless otherwise noted. § 2423.0 Applicability of this part. This part applies to any unfair labor practice cases that are pending or filed with the FLRA on or after July 25, 2012. [77 FR 37759, June 25, 2012] Subpart A—Filing, Investigating, Resolving, and Acting on Charges Source: 77 FR 37759, June 25, 2012, unless otherwise noted. § 2423.1 Can a Regional Office help the parties resolve unfair labor practice disputes before a Regional Director decides whether to issue a complaint? (a) Resolving unfair labor practice disputes before filing a charge. (b) Resolving unfair labor practice disputes after filing a charge. § 2423.2 What Alternative Dispute Resolution (ADR) services does the OGC provide? (a) Purpose of ADR services. (1) Develop collaborative labor-management relationships; (2) Avoid unfair labor practice disputes; and (3) Informally resolve unfair labor practice disputes. (b) Types of ADR Services. (1) Facilitation. (2) Intervention. (3) Training. (4) Education. (c) ADR services after initiation of an investigation. § 2423.3 Who may file charges? (a) Filing charges. (b) Charging Party. (c) Charged Party. § 2423.4 What must you state in the charge and what supporting evidence and documents should you submit? (a) What to file. www.flra.gov, (1) The Charging Party's name and mailing address, including street number, city, state, and zip code; (2) The Charged Party's name and mailing address, including street number, city, state, and zip code; (3) The Charging Party's point of contact's name, address, telephone number, facsimile number, if known, and email address, if known; (4) The Charged Party's point of contact's name, address, telephone number, facsimile number, if known, and email address, if known; (5) A clear and concise statement of the facts alleged to constitute an unfair labor practice, a statement of how those facts allegedly violate specific section(s) and paragraph(s) of the Statute, and the date and place of occurrence of the particular acts; and (6) A statement whether the subject matter raised in the charge: (i) Has been raised previously in a grievance procedure; (ii) Has been referred to the Federal Service Impasses Panel, the Federal Mediation and Conciliation Service, the Equal Employment Opportunity Commission, the Merit Systems Protection Board, or the Office of Special Counsel for consideration or action; (iii) Involves a negotiability issue that you raised in a petition pending before the Authority under part 2424 of this subchapter; or (iv) Has been the subject of any other administrative or judicial proceeding. (7) A statement describing the result or status of any proceeding identified in paragraph (a)(6) of this section. (b) When and how to file. www.flra.gov. (c) Declarations of truth and statement of service. (d) Statement of service. (e) Self-contained document. (f) Submitting supporting evidence and documents and identifying potential witnesses. § 2423.5 [Reserved] § 2423.6 What is the process for filing and serving copies of charges? (a) Where to file. (b) Date of filing. http://www.FLRA.gov. (c) Method of filing. www.flra.gov. (d) Service of the charge. § 2423.7 [Reserved] § 2423.8 How are charges investigated? (a) Investigation. (b) Cooperation. (1) Making union officials, employees, and agency supervisors and managers available to give sworn/affirmed testimony regarding matters under investigation; (2) Producing documentary evidence pertinent to the matters under investigation; (3) Providing statements of position on the matters under investigation; and (4) Responding to an agent's communications during an investigation in a timely manner. (c) Investigatory subpoenas. (1) A subpoena can only be served by any individual who is at least 18 years old and who is not a party to the proceeding. The individual who served the subpoena must certify that he or she did so: (i) By delivering it to the witness in person; (ii) By registered or certified mail; or (iii) By delivering the subpoena to a responsible individual (named in the document certifying the delivery) at the residence or place of business (as appropriate) of the person for whom the subpoena was intended. The subpoena must show on its face the name and address of the Regional Director and the General Counsel. (2) Any person served with a subpoena who does not intend to comply must, within 5 days after the date of service of the subpoena upon such person, petition in writing to revoke the subpoena. A copy of any petition to revoke must be served on the General Counsel. (3) The General Counsel must revoke the subpoena if the witness or evidence, the production of which is required, is not material and relevant to the matters under investigation or in question in the proceedings, or the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason sufficient in law the subpoena is invalid. The General Counsel must state the procedural or other grounds for the ruling on the petition to revoke. The petition to revoke becomes part of the official record if there is a hearing under subpart C of this part. (4) Upon the failure of any person to comply with a subpoena issued by the General Counsel, the General Counsel must determine whether to institute proceedings in the appropriate district court for the enforcement of the subpoena. Enforcement must not be sought if to do so would be inconsistent with law, including the Statute. (d) Confidentiality. § 2423.9 How are charges amended? Before the issuance of a complaint, the Charging Party may amend the charge under the requirements set forth in § 2423.6. § 2423.10 What actions may the Regional Director take with regard to your charge? (a) Regional Director action. (1) Approve a request to withdraw a charge; (2) Dismiss a charge; (3) Approve a written settlement agreement under § 2423.12; (4) Issue a complaint; or (5) Withdraw a complaint. (b) Request for appropriate temporary relief. (c) General Counsel requests to the Authority. (d) Actions subsequent to obtaining appropriate temporary relief. § 2423.11 What happens if a Regional Director decides not to issue a complaint? (a) Opportunity to withdraw a charge. (b) Dismissal letter. (c) Appeal of a dismissal letter. [email protected], (d) Extension of time. [email protected], (e) Grounds for granting an appeal. (1) The Regional Director's decision did not consider material facts that would have resulted in issuance of a complaint; (2) The Regional Director's decision is based on a finding of a material fact that is clearly erroneous; (3) The Regional Director's decision is based on an incorrect statement or application of the applicable rule of law; (4) There is no Authority precedent on the legal issue in the case; or (5) The manner in which the Region conducted the investigation has resulted in prejudicial error. (f) General Counsel action. (g) Reconsideration. § 2423.12 What types of settlements of unfair labor practice charges are possible after a Regional Director decides to issue a complaint but before issuance of a complaint? (a) Bilateral informal settlement agreement. (b) Unilateral informal settlement agreement. §§ 2423.13-2423.19 [Reserved] Subpart B—Post Complaint, Prehearing Procedures § 2423.20 Issuance and contents of the complaint; answer to the complaint; amendments; role of Office of Administrative Law Judges. (a) Complaint. (1) Notice of the charge; (2) The basis for jurisdiction; (3) The facts alleged to constitute an unfair labor practice; (4) The particular sections of 5 U.S.C., chapter 71 and the rules and regulations involved; (5) Notice of the date, time, and place that a hearing will take place before an Administrative Law Judge; and (6) A brief statement explaining the nature of the hearing. (b) Answer. (c) Amendments. (d) Office of Administrative Law Judges. § 2423.21 Motions procedure. (a) General requirements. (b) Motions made to the Administrative Law Judge. (1) Prehearing motions shall be filed at least 10 days prior to the hearing, and responses shall be filed within 5 days after the date of service of the motion; (2) Responses to motions made during the hearing shall be filed prior to the close of hearing; (3) Posthearing motions shall be filed within 10 days after the date the hearing closes, and responses shall be filed within 5 days after the date of service of the motion; and (4) Motions to correct the transcript shall be filed with the Administrative Law Judge within 10 days after receipt of the transcript, and responses shall be filed within 5 days after the date of service of the motion. (c) Post-transmission motions. (d) Interlocutory appeals. § 2423.22 Intervenors. Motions for permission to intervene and responses shall be filed in accordance with § 2423.21. Such motions shall be granted upon a showing that the outcome of the proceeding is likely to directly affect the movant's rights or duties. Intervenors may participate only: on the issues determined by the Administrative Law Judge to affect them; and to the extent permitted by the Judge. Denial of such motions may be appealed pursuant to § 2423.21(d). § 2423.23 Prehearing disclosure. Unless otherwise directed or approved by the Judge, the parties shall exchange, in accordance with the service requirements of § 2429.27(b) of this subchapter, the following items at least 14 days prior to the hearing: (a) Witnesses. (b) Documents. (c) Theories. § 2423.24 Powers and duties of the Administrative Law Judge during prehearing proceedings. (a) Prehearing procedures. (b) Changing date, time, or place of hearing. (c) Prehearing order. (i) The date, time, or place of the hearing; (ii) The schedule for prehearing disclosure of witness lists and documents intended to be offered into evidence at the hearing; (iii) The date for submission of procedural and substantive motions; (iv) The date, time, and place of the prehearing conference; and (v) Any other matter pertaining to prehearing or hearing procedures. (2) The prehearing order shall be served in accordance with § 2429.12 of this subchapter. (d) Prehearing conferences. (1) Settlement of the case, either by the Judge conducting the prehearing conference or pursuant to § 2423.25; (2) Admissions of fact, disclosure of contents and authenticity of documents, and stipulations of fact; (3) Objections to the introduction of evidence at the hearing, including oral or written testimony, documents, papers, exhibits, or other submissions proposed by a party; (4) Subpoena requests or petitions to revoke subpoenas; (5) Any matters subject to official notice; (6) Outstanding motions; or (7) Any other matter that may expedite the hearing or aid in the disposition of the case. (e) Sanctions. (1) Prohibit a party who fails to comply with any requirement of subpart B or C of this part from, as appropriate, introducing evidence, calling witnesses, raising objections to the introduction of evidence or testimony of witnesses at the hearing, presenting a specific theory of violation, seeking certain relief, or relying upon a particular defense. (2) Refuse to consider any submission that is not filed in compliance with subparts B or C of this part. § 2423.25 Post complaint, prehearing settlements. (a) Informal and formal settlements. (1) Informal settlement agreements provide for withdrawal of the complaint by the Regional Director and are not subject to approval by or an order of the Authority. If the Respondent fails to perform its obligations under the informal settlement agreement, the Regional Director may reinstitute formal proceedings consistent with this subpart. (2) Formal settlement agreements are subject to approval by the Authority, and include the parties' agreement to waive their right to a hearing and acknowledgment that the Authority may issue an order requiring the Respondent to take action appropriate to the terms of the settlement. The formal settlement agreement shall also contain the Respondent's consent to the Authority's application for the entry of a decree by an appropriate federal court enforcing the Authority's order. (b) Informal settlement procedure. (c) Formal settlement procedure. (d) Settlement judge program. (1) The settlement official shall convene and preside over settlement conferences by telephone or in person. (2) The settlement official may require that the representative for each party be present at settlement conferences and that the parties or agents with full settlement authority be present or available by telephone. (3) The settlement official shall not discuss any aspect of the case with the hearing judge. (4) No evidence regarding statements, conduct, offers of settlement, and concessions of the parties made in proceedings before the settlement official shall be admissible in any proceeding before the Administrative Law Judge or Authority, except by stipulation of the parties. § 2423.26 Stipulations of fact submissions. (a) General. (b) Stipulations to the Administrative Law Judge. (c) Stipulations to the Authority. (d) Decision based on stipulation. § 2423.27 Summary judgment motions. (a) Motions. (b) Responses. (c) Decision. § 2423.28 Subpoenas. (a) When necessary. (b) Requests for subpoenas. (c) Subpoena procedures. (d) Service of subpoena. (1) By delivering it to the witness in person, (2) By registered or certified mail, or (3) By delivering the subpoena to a responsible person (named in the document certifying the delivery) at the residence or place of business (as appropriate) of the person for whom the subpoena was intended. The subpoena shall show on its face the name and address of the party on whose behalf the subpoena was issued. (e)(1) Petition to revoke subpoena. (2) The Administrative Law Judge, or any other employee of the Authority designated by the Authority, as appropriate, shall revoke the subpoena if the person or evidence, the production of which is required, is not material and relevant to the matters under investigation or in question in the proceedings, or the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason sufficient in law the subpoena is invalid. The Administrative Law Judge, or any other employee of the Authority designated by the Authority, as appropriate, shall state the procedural or other ground for the ruling on the petition to revoke. The petition to revoke, any answer thereto, and any ruling thereon shall not become part of the official record except upon the request of the party aggrieved by the ruling. (f) Failure to comply. § 2423.29 [Reserved] Subpart C—Hearing Procedures § 2423.30 General rules. (a) Open hearing. (b) Administrative Procedure Act. (c) Rights of parties. (d) Objections. (e) Oral argument. (f) Official transcript. § 2423.31 Powers and duties of the Administrative Law Judge at the hearing. (a) Conduct of hearing. (b) Evidence. (c) Interlocutory appeals. (1) The Judge shall grant the motion and certify the contested ruling to the Authority if: (i) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and (ii) Immediate review will materially advance completion of the proceeding, or the denial of immediate review will cause undue harm to a party or the public. (2) If the motion is granted, the Judge or Authority may stay the hearing during the pendency of the appeal. If the motion is denied, exceptions to the contested ruling may be filed in accordance with § 2423.40 of this subchapter after the Judge issues a decision and recommended order in the case. (d) Bench decisions. (e) Settlements after the opening of the hearing. (1) Informal settlement procedure: Judge's approval of withdrawal. (2) Formal settlement procedure: Judge's approval of settlement. § 2423.32 Burden of proof before the Administrative Law Judge. The General Counsel shall present the evidence in support of the complaint and have the burden of proving the allegations of the complaint by a preponderance of the evidence. The Respondent shall have the burden of proving any affirmative defenses that it raises to the allegations in the complaint. § 2423.33 Posthearing briefs. Except when bench decisions are issued pursuant to § 2423.31(d), posthearing briefs may be filed with the Administrative Law Judge within a time period set by the Judge, not to exceed 30 days from the close of the hearing, unless otherwise directed by the judge, and shall satisfy the filing and service requirements of part 2429 of this subchapter. Reply briefs shall not be filed absent permission of the Judge. Motions to extend the filing deadline or for permission to file a reply brief shall be filed in accordance with § 2423.21. § 2423.34 Decision and record. (a) Recommended decision. (1) A statement of the issues; (2) Relevant findings of fact; (3) Conclusions of law and reasons therefor; (4) Credibility determinations as necessary; and (5) A recommended disposition or order. (b) Transmittal to Authority. §§ 2423.35-2423.39 [Reserved] Subpart D—Post-Transmission and Exceptions to Authority Procedures § 2423.40 Exceptions; oppositions and cross-exceptions; oppositions to cross-exceptions; waiver. (a) Exceptions. (1) The specific findings, conclusions, determinations, rulings, or recommendations being challenged; the grounds relied upon; and the relief sought. (2) Supporting arguments, which shall set forth, in order: all relevant facts with specific citations to the record; the issues to be addressed; and a separate argument for each issue, which shall include a discussion of applicable law. Attachments to briefs shall be separately paginated and indexed as necessary. (3) Exceptions containing 25 or more pages shall include a table of legal authorities cited. (b) Oppositions and cross-exceptions. (c) Reply briefs. (d) Waiver. [62 FR 40916, July 31, 1997, as amended at 77 FR 26433, May 4, 2012] § 2423.41 Action by the Authority; compliance with Authority decisions and orders. (a) Authority decision; no exceptions filed. (b) Authority decision; exceptions filed. (c) Authority's order. (d) Dismissal. (e) Report of compliance. [62 FR 40916, July 31, 1997, as amended at 63 FR 46158, Aug. 31, 1998] § 2423.42 Backpay proceedings. After the entry of an Authority order directing payment of backpay, or the entry of a court decree enforcing such order, if it appears to the Regional Director that a controversy exists between the Authority and a Respondent regarding backpay that cannot be resolved without a formal proceeding, the Regional Director may issue and serve on all parties a notice of hearing before an Administrative Law Judge to determine the backpay amount. The notice of hearing shall set forth the specific backpay issues to be resolved. The Respondent shall, within 20 days after the service of a notice of hearing, file an answer in accordance with § 2423.20. After the issuance of a notice of hearing, the procedures provided in subparts B, C, and D of this part shall be followed as applicable. §§ 2423.43-2423.49 [Reserved]