[Federal Register: November 30, 1998 (Volume 63, Number 229)]
[Rules and Regulations]
[Page 65638-65645]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30no98-2]
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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2423
Unfair Labor Practice Proceedings
AGENCY: Office of the General Counsel, Federal Labor Relations
Authority.
ACTION: Final rule.
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SUMMARY: The General Counsel of the Federal Labor Relations Authority
(FLRA) revises the regulations regarding the prevention, resolution,
and investigation of unfair labor practice (ULP) disputes (part 2423,
subpart A). The purpose of the revisions is to facilitate dispute
resolution and to simplify, clarify, and improve the processing of ULP
charges. Implementation of the changes will enhance the purposes and
policies of the Federal Service Labor-Management Relations Statute
(Statute) by preventing ULP disputes, resolving disputes that arise,
and fully investigating and taking determinative action in disputes
that are not resolved. The revisions implement the FLRA's agency-wide
collaboration and alternative dispute resolution initiative to assist
labor and management parties in developing collaborative relationships,
and to provide dispute resolution services in ULP, representation,
negotiability, impasses, and arbitration cases pending before the
Office of the General Counsel, the three Authority Members, and the
Federal Service Impasses Panel. The regulations are applicable to any
charge pending or filed after January 1, 1999.
EFFECTIVE DATE: January 1, 1999.
FOR FURTHER INFORMATION CONTACT: David L. Feder, Deputy General
Counsel, at the address listed above or by telephone at (202) 482-6680,
ext. 203.
SUPPLEMENTARY INFORMATION:
Background
On August 24, 1998, the Office of the General Counsel (OGC) of the
FLRA published proposed modifications to the existing rules and
regulations in subpart A of part 2423 of title 5 of the Code of Federal
Regulations regarding the prevention of ULPs, as well as to the meaning
of terms as used in this subchapter located at part 2421, and to
related miscellaneous and general requirements located at part 2429 (63
FR 45013) (August 24, 1998). These revisions are part of the FLRA's
initiative to facilitate dispute resolution and to simplify, clarify,
and improve the processing of ULP charges. For the sake of clarity,
with respect to the substance of the revisions proposed for parts 2421
and 2429, those revisions have been incorporated, where appropriate, in
subpart A of part 2423. Further, the general provision regarding dates
of applicability of part 2423, which was Sec. 2423.1, is now found
prior to subpart A as Sec. 2423.0. The respective revisions are
discussed below in the section-by-section analysis.
Concurrent with issuing the proposed rule, the General Counsel
invited comment on the proposed rule in one of two ways: By convening a
series of meetings held in each of the seven Regional Office cities as
well as the OGC Headquarters in Washington DC, and by offering the
public an opportunity to submit written comments. All comments, whether
expressed orally at one of the meetings, or submitted in writing, have
been considered prior to publishing the final rule, although all
comments are not specifically addressed below.
Sectional Analyses
Sectional analyses of the revisions to Part 2423--Unfair Labor
Practice Proceedings are as follows:
Part 2423--Unfair Labor Practice Proceedings
Section 2423.0
This newly-created section incorporates and amends Sec. 2423.1 of
the current regulations. Specifically, this section is amended to
clarify that Subpart A of the regulations is applicable to any charge
pending or filed after January 1, 1999. The provision regarding
applicability of this part to any complaint filed on or after October
1, 1997 remains unchanged.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Section 2423.1
Numerous commenters responded favorably to the regulatory revision.
One commenter stated that the revisions merely codify and emphasize the
dispute resolution efforts that Regional Office agents routinely
initiate.
Two commenters suggested retaining the 15-day delay before a
Regional Office begins processing a charge because the parties may wish
to resolve any ULP dispute without outside intervention or might prefer
to use another third party neutral to provide such services. The final
regulation deletes the 15-day delay requirement because the parties are
always free to communicate with each other to arrange for any
assistance, either through the efforts of Regional Office staff, or
through other outside assistance, prior or subsequent to filing a
charge. Regional Office representatives routinely assist parties in
resolving their dispute as part of the investigation. Thus, there is no
need to require a 15-day delay before beginning to process a ULP
charge. However, to further accommodate the interest raised by these
commenters, if an outside facilitator is assisting the parties in
resolving the subject matter of a pending ULP charge, the parties may
jointly request that the Regional Director defer the initiation of an
investigation for a reasonable period of time.
One commenter suggested adding a provision which clarifies that the
statutory time limits for filing a ULP charge are not tolled during the
time that the parties are attempting to resolve the dispute. This
suggestion has been incorporated in the final regulation because it is
necessary that parties consider the statutory time limit, which is set
forth at 5 U.S.C. 7118(a)(4), in determining whether to engage in
dispute resolution before a ULP charge is filed. The provision is
inserted as the last sentence of paragraph (a).
Another commenter suggested that there be a presumption in favor of
providing the services upon request. The OGC's public Intervention
Policy currently provides criteria and principles for Regional Offices
to follow in determining whether to offer these services. This Policy
will be incorporated into an Unfair Labor Practice Casehandling Manual
(ULP Manual) that will be issued and made public in the spring of 1999.
A minor editorial modification has been made to paragraph (b) for
clarity purposes.
Section 2423.2
There was almost unanimous agreement among the commenters that the
provision of Alternative Dispute Resolution (ADR) Services promotes the
purposes and policies underlying the Statute. In this regard,
experience has shown that by providing these services to parties: Their
labor-management relationships are improved and enhanced; ULP disputes
are avoided; and, the parties are better able to resolve ULP disputes
among themselves. A desired by-product of the provision of ADR services
has been a reduction in the filing of ULP charges. Paragraph (a) has
been modified to reflect that these ADR services, delivered by the OGC,
are part of the FLRA-wide Collaboration and Alternative Dispute
Resolution Program.
Several commenters suggested inserting a requirement to notify the
national or parent organization when an ADR service is to be provided
at a local
[[Page 65639]]
facility, particularly where a nationwide bargaining unit is involved.
Parties engaged in ADR services delivered by the OGC are free to notify
their national or parent organization. However, to accommodate the
interest raised by these commenters, before undertaking to provide an
ADR service, Regional Office staff may inquire whether notification of
the parties' national or parent organization is desired.
Another commenter recommended that the ADR process be made
mandatory upon the request of one of the parties. Experience has shown
that the success and/or effectiveness of the provision of ADR services
depends upon the parties voluntarily requesting or agreeing to partake
in the process. Paragraph (b) is clarified to state that the parties
may jointly request, or agree to, the provision of an ADR service.
Section 2423.3
No comments were received concerning the proposed rule. New
paragraphs (b) and (c) have been added to incorporate the definitions
for ``Charging Party'' and ``Charged Party'' that were initially
proposed as definitions in proposed new Secs. 2421.23 and 2421.24 of
part 2421.
Section 2423.4
The majority of the comments concerning the proposed rule
recommended retaining the requirement that the charge state the
section(s) and paragraph(s) of the Statute alleged to have been
violated. These commenters stated that preserving this requirement will
help charged parties to better understand the basis of the charge.
Based upon comments received and discussion at the meetings, the OGC
has reconsidered the proposed rule and has decided to retain the
requirement which is set forth in the final rule at paragraph (a)(5).
Several comments suggested that the charge form be amended to
provide space for the charging party to indicate whether it has
attempted to meet with the charged party to resolve the ULP dispute
before the charge was filed and to ask whether the charging party is
willing to attempt to resolve the charge with or without the assistance
of the Regional Office. These matters are routinely considered by the
Regional Office in their initial conversations with the parties in
considering whether the provision of ADR services would be beneficial
in any given case. Since Regional Office staff routinely make these
inquiries, and the parties may communicate with each other prior to
filing a charge, there is no need to amend the charge form.
Many commenters expressed concern regarding the requirement that
supporting evidence and documents be submitted with the charge. These
commenters stated, for various reasons, that it is sometimes difficult
to gather all of the supporting evidence at the time a charge is filed.
This requirement, which is set forth at paragraph (e) is, in relevant
part, the same as the regulatory requirement that has always existed.
The new regulation merely explains the requirement by listing the types
of supporting evidence and documents that are routinely provided by
charging parties. It is necessary to submit supporting evidence with
the charge so that the agent to whom an investigation is assigned is
able to fully understand the basis of the charge and to prepare to talk
with the parties, which is the first step in the investigation process.
This regulation does not preclude parties from submitting additional
evidence and information during the course of the investigation, as it
becomes available. A minor edit also has been made to this paragraph
for clarity purposes.
The final regulation contains a new paragraph (c) concerning
Statement of Service requirements which had been proposed as the second
sentence of paragraph (b). Other minor editorial clarifications have
been made to the final regulation.
Section 2423.5
One comment received suggested that once the Authority revises part
2424 of the regulations concerning negotiability proceedings, the
General Counsel should make a corresponding revision concerning the
availability of the ULP process to resolve certain duty to bargain
issues. As the matter concerning related ULP and negotiability
proceedings is being addressed by the Authority in its final
regulations in part 2424, there is no reason to address the matter in
subpart A of part 2423. The Regions will continue to follow Sec. 2424.5
until the effective date of a new rule promulgated by the Authority.
Moreover, the deletion of any provision addressing negotiability
matters from subpart A of part 2423 has no impact on the availability
of the ULP process to a charging party to resolve allegations that a
charged party failed to fulfill a statutory bargaining obligation and
committed a ULP.
Section 2423.6
Almost all of the comments on this section were favorable and
pertained to the use of facsimile transmission to file a charge.
Several commenters expressed concern regarding verification of receipt
of a charge filed by facsimile transmission. This concern has been
addressed by clarifying in paragraph (c) that a ``charging party
assumes responsibility for receipt of a charge.''
Two commenters questioned the proposed imposition of a 5-page
limitation on those charges filed by facsimile transmission. One
commenter inquired about the basis for the proposed limitation and
another was concerned about practical problems that arise upon the
imposition of a page limitation. The final regulation has been changed
to contain a 2-page limitation for those charges filed by facsimile.
After reviewing the proposed regulation, the OGC has concluded that in
order to expedite the inception of the investigatory process, charging
parties must present their factual allegations supporting the charge in
a succinct and organized manner. This may be accomplished in 2 pages.
The final regulation also clarifies that a charging party may not file
a charge by electronic mail and that supporting evidence and documents
shall be filed in person, by commercial delivery, first-class mail, or
certified mail. Recognizing that at times, supporting evidence and
other documents may be voluminous, the regulation provides that all
such documents may not be filed by facsimile transmission. Other minor
editorial revisions have been made to this section to clarify that
parties are aware that a charge may now be filed by facsimile
transmission.
Section 2423.7
One commenter and others who favor the use of facilitation as an
effective means to resolve disputes in some circumstances nevertheless
expressed concern that there are other circumstances that may require
enforcement of the Statute through issuance of a formal complaint. The
OGC agrees that not every dispute is an appropriate candidate for the
alternative case processing procedure. Regional staff will apply
criteria and principles in determining whether to offer an alternative
case processing procedure, upon joint request, to the parties. These
criteria and principles currently are contained in the OGC's public
Intervention Policy and will be incorporated into the public ULP
Manual. The intent underlying the revision of the regulations is not to
accord lesser priority to the General Counsel's essential prosecutorial
role in seeking enforcement of the Statute through traditional means,
but rather to recognize the use of an alternative case processing
procedure and other ADR techniques as tools to assist parties in
resolving their dispute.
[[Page 65640]]
Another commenter in favor of the alternative case processing
procedure suggested that the process be mandatory upon the request of
one of the parties. For the reasons discussed above concerning ADR
services under Sec. 2423.2, the OGC has determined that a strictly
voluntary process works best. For those reasons, paragraph (a) has been
amended to clearly state that the parties must ``voluntarily'' agree to
use the alternative case processing procedure.
In addition, paragraph (b) has been clarified by substituting
``shall'' for ``may'' in the last sentence. This revision is necessary
to contrast the difference between the alternative case processing
procedure and a traditional investigation. In the former, the regional
agent facilitates a problem-solving process which does not, in any way,
involve taking evidence or the parties' positions on the merits.
Several commenters suggested that attempts to resolve the dispute
should also occur during the investigation. This concern is
specifically addressed in Sec. 2423.1(b) concerning resolving ULP
disputes after filing a charge, where it is stated that a
``representative of the appropriate Regional Office, as part of the
investigation, may assist the parties in informally resolving their
dispute.'' Only one other minor editorial modification has been made to
this paragraph.
The comments received regarding paragraph (c) concerned the last
sentence. Several individuals recommended replacing ``may'' with
``shall'' to indicate a mandatory requirement that another
representative of the Regional Office will conduct an investigation in
the event an alternative case processing procedure is unsuccessful.
Another commenter suggested that the person who presides over the
alternative case processing procedure is better situated to investigate
the case, if necessary. Yet another commenter suggested that the word
``shall'' be used with the caveat that the parties be allowed to waive
the requirement that the same agent who facilitated the alternative
case processing procedure shall not be the same person who investigates
the merits of the charge. The last recommendation has been modified and
adopted because it addresses the interests of the parties, as well as
those of the Regional Director.
An additional concern was raised about the potential for disclosure
of information discussed during the alternative case processing
procedure should the dispute not be resolved and a ULP investigation be
necessary. No evidence pertaining to the alleged ULP violation will be
obtained during the alternative case processing procedure. Moreover,
the agent involved in working with the parties in the alternative case
processing procedure will not be involved in any manner in the
investigation and decision-making process of the ULP charge, unless the
parties and the Regional Director agree otherwise. These safeguards
ensure that the alternative case processing procedure will have no
impact on the investigation, if deemed necessary.
Section 2423.8
This section of the proposed regulations generated the most
comments. Many commenters who favor the proposed regulation stated that
it is useful to explain what specific actions are expected of a party
during an investigation.
Many other commenters expressed concern that the proposed
regulation would upset the careful balance that currently exists
between Regional Directors and charged parties. That is, under the
regulation, commenters stated that Regional Directors will have access
to all of the evidence whereas charged parties do not have access to
the statements relied upon by the Regional Director unless and until
after that person testifies at trial.
Other concerns raised by commenters suggest that, among other
things: (1) There is no statutory authority to order Federal
supervisors and managers to give sworn testimony; (2) based on a vague
charge, the Regional Director will insist that a charged party provide
sworn statements; (3) the General Counsel should delete the reference
to cooperation in the final regulations; (4) the Regional Director
should be required to disclose exculpatory evidence to the charged
party representative obtained during the course of an investigation;
(5) the regulation provides the Regional Director with investigatory
powers that exceed the current level of discovery afforded litigants
before Administrative Law Judges under Sec. 2423.23; (6) a detailed
explanation for expanding the General Counsel's investigatory authority
should be given because the current procedures have worked well for 20
years; and (7) that in exchange for charged party cooperation, the
Regional Offices should disclose their case file prior to a decision on
the merits. It further is suggested that unlike the private sector,
where there is good reason to withhold the General Counsel's evidence
due to the prospect of retaliation that may befall a charging party or
neutral witness, retaliation should not be an issue in the Federal
sector because a Federal employee has avenues of redress before several
different agencies. The following discussion addresses these concerns.
The role of a Regional Office investigator, in part, is to obtain
the best possible relevant evidence for a Regional Director to be able
to reach a proper disposition in each case. This is an OGC quality
standard applicable to all investigations which is part of the OGC's
current, public Quality of Investigations Policy, and which will be
incorporated into the public ULP Manual. To this end, a regional agent
must identify the questions to ask witnesses, and ask the parties to
provide relevant documents from all potential sources. So that a
complete record is developed, it is necessary that both the charging
party and the charged party voluntarily cooperate during the
investigation. None of the commenters have cited any legal authority
which purportedly allows any Federal agency that has been charged with
violating a Federal law, to refuse to cooperate with another Federal
agency that has been charged by the Congress to initiate an
investigation to determine if the alleged violation of law has
occurred, and if so, to prosecute, absent settlement, the agency
charged with violating the law.
Current OGC practice protects a charged party's right to represent
its agents. If a Regional Director deems it necessary to take the
sworn/affirmed statement of a charged party witness, whether an agency
or a union witness, the current OGC practice provides that all regional
agents first contact the charged party representative to arrange to
take the charged party witness' statement. No regional agent is
authorized to directly initiate contact with any current agency
manager/supervisor or union official who is an agent of a charged party
agency or union unless authorized to do so by a charged party agency or
union representative. Second, anytime it is necessary to take the
statement of a charged party witness, the charged party has the right
to have a representative present when the statement is given. These
safeguards protect the interest of a charged party to represent its
agents.
If a charging party fails to cooperate in an investigation, after
being afforded ample opportunity to do so, the charge will be dismissed
for lack of cooperation, absent withdrawal. If a neutral entity or a
charged party fails to cooperate in an investigation, after being
afforded ample opportunity to do so, the final regulation provides that
an investigatory subpoena may be issued and enforced.
A new paragraph (c) has been added to the final regulation to
incorporate a
[[Page 65641]]
provision concerning investigatory subpoenas. This section is modeled
after, and consistent with, the subpoena provision set forth at
Sec. 2423.28 in subpart B of part 2423, which concerns post complaint
and prehearing procedures. The authority for both of these sections is
derived from section 7132 of the Statute. Under section 7132, the
General Counsel, the Authority Members, and the Federal Service
Impasses Panel have the same authority to issue and enforce subpoenas.
Because charged parties are usually cooperative to the extent
deemed necessary by the Region during an investigation, it is
anticipated that only in rare situations will it be necessary for an
investigatory subpoena to be issued. During the meetings, many
commenters suggested that since these subpoenas will be used only on
rare occasions, they should only be issued upon the approval of the
General Counsel. To accommodate this interest, the final regulation
provides that an investigatory subpoena will be issued only by the
General Counsel, upon the recommendation of a Regional Director.
Moreover, prior to the issuance of an investigatory subpoena, a charged
party will be afforded ample opportunity to cooperate in the
investigation before a Regional Director recommends to the General
Counsel to issue an investigatory subpoena ``for the attendance and
testimony of witnesses and the production of documentary or other
evidence.'' Further, the Regional Directors will consider, among other
things, the following factors before recommending the issuance of an
investigatory subpoena: (1) Whether the evidence submitted by charging
party and any neutral witnesses establishes a potential violation (if
the Region has sufficient evidence for the Regional Director to decide
the merits of the charge, it would not be necessary to require the
charged party to produce additional evidence); (2) whether the evidence
sought is relevant and material and is neither privileged, unduly
repetitious nor unreasonably cumulative; (3) whether the evidence is
necessary to decide a factual issue which must be resolved to determine
whether or not a violation of the Statute has occurred, and that
evidence is not otherwise available; (4) whether the evidence sought is
not within the control of the charging party; (5) whether the evidence
can be produced without an undue burden and is specific, narrowly
tailored, and reasonable; and (6) the likelihood of compliance, and
failing that, the prospect for successful enforcement of the subpoena.
Once the General Counsel has determined to issue a subpoena, the
investigative agent will once again contact the charged party
representative and give the charged party one final opportunity to
voluntarily cooperate with the investigation. The charged party will be
informed that absent voluntary compliance, a subpoena will issue, and
absent compliance with the subpoena, enforcement will be sought in an
appropriate United States district court.
Thus, it is expected that the use of an investigatory subpoena will
occur only in rare cases. Parties should understand that its use will
be infrequent and that it is not intended either as a substitute for,
or to lessen, the charging party's burden of submitting evidence to
support the underlying allegations of a charge.
Consistent with Sec. 2423.28, under paragraph (c)(2), a provision
for the revocation of an investigatory subpoena has been included,
although not statutorily required under section 7132. Paragraph (c)(3)
contains the applicable standards for ruling on a petition to revoke a
subpoena. These standards are, with minor editorial modifications, the
same as those set forth at paragraph (e)(1) of Sec. 2423.28. In
addition, the regulation provides that any petition to revoke, and any
ruling on the petition to revoke, shall become part of the official
record if there is a hearing under subpart C of this part.
Subsection (c)(4) addresses the situation where a charged party
fails to comply with a subpoena issued by the General Counsel. In this
situation, the General Counsel makes the determination whether to
institute proceedings in the appropriate district court for the
enforcement of the subpoena.
The General Counsel's confidentiality policy reflected in paragraph
(d) (previously paragraph (c) in the proposed rule), which is the same
as stated in the proposed rule, has existed for many years and remains
sound. Maintaining the confidentiality of individuals who submit
statements and information during the course of an investigation and to
protect against the disclosure of documents obtained during an
investigation is essential. However, it bears noting that under the
section of the Authority's revised post-complaint regulations published
on July 31, 1997 (62 FR 40911), which specifically concerns new
prehearing disclosure requirements (Sec. 2423.23), the OGC attorney is
required to disclose to charged parties, among other things, the
witnesses and documents on which the OGC attorney will rely to prove
the General Counsel's case, should a complaint issue and, absent
settlement, the case goes to hearing.
Section 2423.9
No comments were received concerning this section.
Section 2423.10
No comments were received concerning this section. Minor editorial
modifications have been made to paragraphs (a), (b) and (c). One
additional edit to proposed paragraph (c) has been made in the next-to-
last sentence. In this regard, to be consistent with the remainder of
the paragraph, the word ``will'' has been changed to ``may.''
Section 2423.11
Commenters submitted favorable responses to the proposed revisions
in this section. Two commenters suggested that the charging party be
required to serve a copy of an appeal of a Regional Director
determination not to issue complaint on the charged party. This
interest has been addressed by modifying paragraph (c) which requires
the OGC to serve notice on the charged party that an appeal has been
filed.
Another commenter suggested adding the standards Regional Directors
use to exercise prosecutorial discretion to this section. These
standards are set forth in the OGC's public Prosecutorial Discretion
Policy, which will be incorporated in the public ULP Manual.
Other minor editorial modifications have been made to this section.
For example, paragraphs (a) and (b) have been clarified to state that
the Regional Director acts on behalf of the General Counsel when
determining not to issue a complaint. Thus, a dismissal letter issued
by a Regional Director, on behalf of the General Counsel, constitutes
the ``written statement of reasons for not issuing a complaint'' as
required by section 7118(a) of the Statute. Further, an appeal of a
Regional Director's dismissal decision will only be granted on one of
the specific grounds in paragraph (e). The review, therefore, is
similar to the Authority's review of Regional Directors' decisions and
orders in representation cases, and is not a de novo review. Upon an
appeal, the appeal letter states the grounds listed in paragraph (e)
for granting or denying the appeal.
One other suggestion concerned clarification of paragraph (g) to
state that the General Counsel's decision on reconsideration is final.
This suggestion has been adopted. In addition, this paragraph has been
changed to state that a motion for reconsideration shall be
[[Page 65642]]
filed within 10 days of the date on which the General Counsel's
decision is postmarked. The provisions for filing an appeal and for
filing a motion for reconsideration are governed by 5 CFR 2429.22.
Section 2423.12
The only change made to this section appears in paragraph (b) which
now clarifies that the Regional Director acts on behalf of the General
Counsel in approving a unilateral settlement agreement.
Regulatory Flexibility Act Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the General Counsel of the FLRA has determined that this
final rule will not have a significant impact on a substantial number
of small entities, because this rule applies to federal employees,
federal agencies, and labor organizations representing federal
employees.
Unfunded Mandates Reform Act of 1995
This final rule change will not result in the expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100,000,000 or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
final rule will not result in an annual effect on the economy of
$100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Paperwork Reduction Act of 1995
The final rule contains no additional information collection or
record keeping requirements under the Paperwork Reduction Act of 1995,
44 U.S.C. 3501, et seq.
List of Subjects in 5 CFR Part 2423
Administrative practice and procedure, Government employees, Labor
management relations.
For the reasons discussed in the preamble, the General Counsel of
the Federal Labor Relations Authority revises 5 CFR part 2423 as
follows:
PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS
1. The authority citation for part 2423 continues to read as
follows:
Authority: 5 U.S.C. 7134.
2. Section 2423.0 and subpart A of Part 2423 are revised to read as
follows:
Sec.
2423.0 Applicability of this part.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
2423.1 Resolution of unfair labor practice disputes prior to a
Regional Director determination whether to issue a complaint.
2423.2 Alternative Dispute Resolution (ADR) services.
2423.3 Who may file charges.
2423.4 Contents of the charge; supporting evidence and documents.
2423.5 [Reserved]
2423.6 Filing and service of copies.
2423.7 Alternative Case Processing Procedure.
2423.8 Investigation of charges.
2423.9 Amendment of charges.
2423.10 Action by the Regional Director.
2423.11 Determination not to issue complaint; review of action by
the Regional Director.
2423.12 Settlement of unfair labor practice charges after a
Regional Director determination to issue a complaint but prior to
issuance of a complaint.
2423.13-2423.19 [Reserved]
Sec. 2423.0 Applicability of this part
This part is applicable to any charge of alleged unfair labor
practices pending or filed with the Authority on or after January 1,
1999, and any complaint filed on or after October 1, 1997.
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sec. 2423.1 Resolution of unfair labor practice disputes prior to a
Regional Director determination whether to issue a complaint.
(a) Resolving unfair labor practice disputes prior to filing a
charge. The purposes and policies of the Federal Service Labor-
Management Relations Statute can best be achieved by the collaborative
efforts of all persons covered by that law. The General Counsel
encourages all persons to meet and, in good faith, attempt to resolve
unfair labor practice disputes prior to filing unfair labor practice
charges. If requested, or agreed to, by both parties, a representative
of the Regional Office, in appropriate circumstances, may participate
in these meetings to assist the parties in identifying the issues and
their interests and in resolving the dispute. Attempts to resolve
unfair labor practice disputes prior to filing an unfair labor practice
charge do not toll the time limitations for filing a charge set forth
at 5 U.S.C. 7118(a)(4).
(b) Resolving unfair labor practice disputes after filing a charge.
The General Counsel encourages the informal resolution of unfair labor
practice allegations subsequent to the filing of a charge and prior to
a determination on the merits of the charge by a Regional Director. A
representative of the appropriate Regional Office, as part of the
investigation, may assist the parties in informally resolving their
dispute.
Sec. 2423.2 Alternative Dispute Resolution (ADR) services.
(a) Purpose of ADR services. The Office of the General Counsel
furthers its mission and implements the agency-wide Federal Labor
Relations Authority Collaboration and Alternative Dispute Resolution
Program by promoting stable and productive labor-management
relationships governed by the Federal Service Labor-Management
Relations Statute and by providing services which assist labor
organizations and agencies, on a voluntary basis: To develop
collaborative labor-management relationships; to avoid unfair labor
practice disputes; and to resolve any unfair labor practice disputes
informally.
(b) Types of ADR Services. Agencies and labor organizations may
jointly request, or agree to, the provision of the following services
by the Office of the General Counsel:
(1) Facilitation. Assisting the parties in improving their labor-
management relationship as governed by the Federal Service Labor-
Management Relations Statute;
(2) Intervention. Intervening when parties are experiencing or
expect significant unfair labor practice disputes;
(3) Training. Training labor organization officials and agency
representatives on their rights and responsibilities under the Federal
Service Labor-Management Relations Statute and how to avoid litigation
over those rights and responsibilities, and on utilizing problem
solving and ADR skills, techniques, and strategies to resolve
informally unfair labor practice disputes; and
(4) Education. Working with the parties to recognize the benefits
of, and establish processes for, avoiding unfair labor practice
disputes, and resolving any unfair labor practice disputes that
[[Page 65643]]
arise by consensual, rather than adversarial, methods.
(c) ADR services after initiation of an investigation. As part of
processing an unfair labor practice charge, the Office of the General
Counsel may suggest to the parties, as appropriate, that they may
benefit from these ADR services.
Sec. 2423.3 Who may file charges.
(a) Filing charges. Any person may charge an activity, agency or
labor organization with having engaged in, or engaging in, any unfair
labor practice prohibited under 5 U.S.C. 7116.
(b) Charging Party. Charging Party means the individual, labor
organization, activity or agency filing an unfair labor practice charge
with a Regional Director.
(c) Charged Party. Charged Party means the activity, agency or
labor organization charged with allegedly having engaged in, or
engaging in, an unfair labor practice.
Sec. 2423.4 Contents of the charge; supporting evidence and documents.
(a) What to file. The Charging Party may file a charge alleging a
violation of 5 U.S.C. 7116 by completing a form prescribed by the
General Counsel, or on a substantially similar form, that contains the
following information:
(1) The name, address, telephone number, and facsimile number
(where facsimile equipment is available) of the Charging Party;
(2) The name, address, telephone number, and facsimile number
(where facsimile equipment is available) of the Charged Party;
(3) The name, address, telephone number, and facsimile number
(where facsimile equipment is available) of the Charging Party's point
of contact;
(4) The name, address, telephone number, and facsimile number
(where facsimile equipment is available) of the Charged Party's point
of contact;
(5) A clear and concise statement of the facts alleged to
constitute an unfair labor practice, a statement of the section(s) and
paragraph(s) of the Federal Service Labor-Management Relations Statute
alleged to have been violated, 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 the Special Counsel for consideration or action;
(iii) Involves a negotiability issue raised by the Charging Party
in a petition pending before the Authority pursuant to 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) Declaration of truth and statement of service. A charge shall
be in writing and signed, and shall contain a declaration by the
individual signing the charge, under the penalties of the Criminal Code
(18 U.S.C. 1001), that its contents are true and correct to the best of
that individual's knowledge and belief.
(c) Statement of service. A charge shall also contain a statement
that the Charging Party served the charge on the Charged Party, and
shall list the name, title and location of the individual served, and
the method of service.
(d) Self-contained document. A charge shall be a self-contained
document describing the alleged unfair labor practice without a need to
refer to supporting evidence documents submitted under paragraph (e) of
this section.
(e) Submitting supporting evidence and documents and identifying
potential witnesses. When filing a charge, the Charging Party shall
submit to the Regional Director any supporting evidence and documents,
including, but not limited to, correspondence and memoranda, records,
reports, applicable collective bargaining agreement clauses, memoranda
of understanding, minutes of meetings, applicable regulations,
statements of position and other documentary evidence. The Charging
Party also shall identify potential witnesses and shall provide a brief
synopsis of their expected testimony.
Sec. 2423.5 [Reserved]
Sec. 2423.6 Filing and service of copies.
(a) Where to file. A Charging Party shall file the charge 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 in any of those regions.
(b) Filing date. A charge is deemed filed when it is received by a
Regional Director.
(c) Method of filing. A Charging Party may file a charge with the
Regional Director in person or by commercial delivery, first-class
mail, or certified mail. Notwithstanding Sec. 2429.24(e) of this
subchapter, a Charging Party also may file a charge by facsimile
transmission if the charge does not exceed 2 pages. If filing by
facsimile transmission, the Charging Party is not required to file an
original copy of the charge with the Region. A Charging Party assumes
responsibility for receipt of a charge. Supporting evidence and
documents shall be submitted to the Regional Director in person, by
commercial delivery, first-class mail, or certified mail, not by
facsimile transmission. Charges shall not be filed by electronic mail.
(d) Service of the charge. The Charging Party shall serve a copy of
the charge (without supporting evidence and documents) on the Charged
Party. Where facsimile equipment is available, the charge may be served
by facsimile transmission in accordance with paragraph (c) of this
section. The Region routinely serves a copy of the charge on the
Charged Party, but the Charging Party remains responsible for serving
the charge in accordance with this paragraph.
Sec. 2423.7 Alternative case processing procedure.
(a) Alternative case processing procedure. The Region may utilize
an alternative case processing procedure to assist the parties in
resolving their unfair labor practice dispute, if the parties
voluntarily agree, by facilitating a problem-solving approach, rather
than initially investigating the particular facts and determining the
merits of the charge.
(b) No evidence is taken. The purpose of the alternative case
processing procedure is to resolve the underlying unfair labor practice
dispute without determining the merits of the charge. The role of the
agent is to assist the parties in that endeavor by facilitating a
solution rather than conducting an investigation. No testimonial or
documentary evidence or positions on the merits of the charge shall be
gathered during the alternative case processing procedure or entered
into the case file.
(c) Investigation is not waived. If the parties are unable to
resolve the dispute, the Region conducts an investigation on the merits
of the charge. The agent who is involved in the alternative case
processing procedure shall not be involved in any subsequent
investigation on the merits of the charge, unless the parties and the
Regional Director agree otherwise.
Sec. 2423.8 Investigation of charges.
(a) Investigation. The Regional Director, on behalf of the General
[[Page 65644]]
Counsel, conducts such investigation of the charge as the Regional
Director deems necessary. During the course of the investigation, all
parties involved are afforded an opportunity to present their evidence
and views to the Regional Director.
(b) Cooperation. The purposes and policies of the Federal Service
Labor-Management Relations Statute can best be achieved by the full
cooperation of all parties involved and the timely submission of all
potentially relevant information from all potential sources during the
course of the investigation. All persons shall cooperate fully with the
Regional Director in the investigation of charges. Cooperation includes
any of the following actions, when deemed appropriate by the Regional
Director:
(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; and
(3) Providing statements of position on the matters under
investigation.
(c) Investigatory subpoenas. If a person fails to cooperate with
the Regional Director in the investigation of a charge, the General
Counsel, upon recommendation of a Regional Director, may decide in
appropriate circumstances to issue a subpoena under 5 U.S.C. 7132 for
the attendance and testimony of witnesses and the production of
documentary or other evidence. However, no subpoena shall be issued
under this section which requires the disclosure of intramanagement
guidance, advice, counsel or training within an agency or between an
agency and the Office of Personnel Management.
(1) A subpoena shall 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 shall 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
shall, within 5 days after the date of service of the subpoena upon
such person, petition in writing to revoke the subpoena. A copy of any
petition to revoke a subpoena shall be served on the General Counsel.
(3) The General Counsel shall 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 shall state the procedural or other grounds for the
ruling on the petition to revoke. The petition to revoke, and any
ruling on the petition to revoke, shall become 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 shall determine whether to
institute proceedings in the appropriate district court for the
enforcement of the subpoena. Enforcement shall not be sought if to do
so would be inconsistent with law, including the Federal Service Labor-
Management Relations Statute.
(d) Confidentiality. It is the General Counsel's policy to protect
the identity of individuals who submit statements and information
during the investigation, and to protect against the disclosure of
documents obtained during the investigation, as a means of ensuring the
General Counsel's continuing ability to obtain all relevant
information. After issuance of a complaint and in preparation for a
hearing, however, identification of witnesses, a synopsis of their
expected testimony and documents proposed to be offered into evidence
at the hearing may be disclosed as required by the prehearing
disclosure requirements in Sec. 2423.23.
Sec. 2423.9 Amendment of charges.
Prior to the issuance of a complaint, the Charging Party may amend
the charge in accordance with the requirements set forth in
Sec. 2423.6.
Sec. 2423.10 Action by the Regional Director.
(a) Regional Director action. The Regional Director may take any of
the following actions, as appropriate:
(1) Approve a request to withdraw a charge;
(2) Refuse to issue a complaint;
(3) Approve a written settlement agreement in accordance with the
provisions of Sec. 2423.12;
(4) Issue a complaint; or
(5) Withdraw a complaint.
(b) Request for appropriate temporary relief. Parties may request
the General Counsel to seek appropriate temporary relief (including a
restraining order) under 5 U.S.C. 7123(d). The General Counsel may
initiate and prosecute injunctive proceedings under 5 U.S.C. 7123(d)
only upon approval of the Authority. A determination by the General
Counsel not to seek approval of the Authority to seek such appropriate
temporary relief is final and shall not be appealed to the Authority.
(c) General Counsel requests to the Authority. When a complaint
issues and the Authority approves the General Counsel's request to seek
appropriate temporary relief (including a restraining order) under 5
U.S.C. 7123(d), the General Counsel may make application for
appropriate temporary relief (including a restraining order) in the
district court of the United States within which the unfair labor
practice is alleged to have occurred or in which the party sought to be
enjoined resides or transacts business. Temporary relief may be sought
if it is just and proper and the record establishes probable cause that
an unfair labor practice is being committed. Temporary relief shall not
be sought if it would interfere with the ability of the agency to carry
out its essential functions.
(d) Actions subsequent to obtaining appropriate temporary relief.
The General Counsel shall inform the district court which granted
temporary relief pursuant to 5 U.S.C. 7123(d) whenever an
Administrative Law Judge recommends dismissal of the complaint, in
whole or in part.
Sec. 2423.11 Determination not to issue complaint; review of action by
the Regional Director.
(a) Opportunity to withdraw a charge. If upon the completion of an
investigation under Sec. 2423.8, the Regional Director, on behalf of
the General Counsel, determines that issuance of a complaint is not
warranted because the charge has not been timely filed, that the charge
fails to state an unfair labor practice, or for other appropriate
reasons, the Regional Director may request the Charging Party to
withdraw the charge.
(b) Dismissal letter. If the Charging Party does not withdraw the
charge within a reasonable period of time, the Regional Director may,
on behalf of the General Counsel, dismiss the charge and provide the
parties with a written statement of the reasons for not issuing a
complaint.
(c) Appeal of a dismissal letter. The Charging Party may obtain
review of the Regional Director's decision not to issue
[[Page 65645]]
a complaint by filing an appeal with the General Counsel within 25 days
after service of the Regional Director's decision. A Charging Party
shall serve a copy of the appeal on the Regional Director. The Office
of the General Counsel shall serve notice on the Charged Party that an
appeal has been filed.
(d) Extension of time. The Charging Party may file a request, in
writing, for an extension of time to file an appeal, which shall be
received by the General Counsel not later than 5 days before the date
the appeal is due. A Charging Party shall serve a copy of the request
for an extension of time on the Regional Director.
(e) Grounds for granting an appeal. The General Counsel may grant
an appeal when the appeal establishes at least one of the following
grounds:
(1) The Regional Director's decision did not consider material
facts that would have resulted in issuance of 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 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. The General Counsel may deny the appeal
of the Regional Director's refusal to issue a complaint, or may grant
the appeal and remand the case to the Regional Director to take further
action. The General Counsel's decision on the appeal states the grounds
listed in paragraph (e) of this section for denying or granting the
appeal, and is served on all the parties. Absent a timely motion for
reconsideration, the decision of the General Counsel is final.
(g) Reconsideration. After the General Counsel issues a final
decision, the Charging Party may move for reconsideration of the final
decision if it can establish extraordinary circumstances in its moving
papers. The motion shall be filed within 10 days after the date on
which the General Counsel's final decision is postmarked. A motion for
reconsideration shall state with particularity the extraordinary
circumstances claimed and shall be supported by appropriate citations.
The decision of the General Counsel on a motion for reconsideration is
final.
Sec. 2423.12 Settlement of unfair labor practice charges after a
Regional Director determination to issue a complaint but prior to
issuance of a complaint.
(a) Bilateral informal settlement agreement. Prior to issuing a
complaint, the Regional Director may afford the Charging Party and the
Charged Party a reasonable period of time to enter into an informal
settlement agreement to be approved by the Regional Director. When a
Charged Party complies with the terms of an informal settlement
agreement approved by the Regional Director, no further action is taken
in the case. If the Charged Party fails to perform its obligations
under the approved informal settlement agreement, the Regional Director
may institute further proceedings.
(b) Unilateral informal settlement agreement. If the Charging Party
elects not to become a party to an informal settlement agreement which
the Regional Director concludes effectuates the policies of the Federal
Service Labor-Management Relations Statute, the agreement may be
between the Charged Party and the Regional Director. The Regional
Director, on behalf of the General Counsel, shall issue a letter
stating the grounds for approving the settlement agreement and
declining to issue a complaint. The Charging Party may obtain review of
the Regional Director's action by filing an appeal with the General
Counsel in accordance with Sec. 2423.11(c) and (d). The General Counsel
shall take action on the appeal as set forth in Sec. 2423.11(e)-(g).
Secs. 2423.13-2423.19 [Reserved]
Dated: November 24, 1998.
Joseph Swerdzewski,
General Counsel, Federal Labor Relations Authority.
[FR Doc. 98-31763 Filed 11-27-98; 8:45 am]
BILLING CODE 6727-01-P