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Office of the General Counsel

Representation Prceedings
Hearing Officer's Guide (HOG)
(December 2000)

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Foreword

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

INTRODUCTION — HOG 1 and HOG 2

	1	Introduction		1-1
		1.1 1.2	Purpose of the hearing Hearings in representation cases are considered investigatory and not adversary	1-1 1-1

	2	Hearing Officer's responsibilities		2-1
		2.1 2.2 2.3 2.3.1 2.3.2 2.3.3	Accomplishment of primary duty Other duties Ethical considerations General Caution Ex parte communications x	2-1 2-2 2-2 2-2 2-3 2-3

PREHEARING MATTERS — HOG 3 through HOG 11

Prehearing preparation

3-1

	4	Preparing materials for hearing		4-1
		4.1 4-2 4.3 4.4 4.5 4.6 4.7 4.8	Formal papers Case file FLRA Form 50, Appearance sheet FLRA Form 56, Exhibits introduced in evidence Publications Other blank forms Subpoenas Hearing Officer's script	4-1 4-2 4-2 4-2 4-2 4-2 4-2 4-3

Witnesses' appearance

5-1

	6	Official time for witnesses and reimbursement for travel		6-1
		6.1 6.2 6.3 6.4	Policy Official time for witnesses Travel and Per Diem Employee representatives	6-1 6-1 6-1 6-1

Prehearing exchange of exhibits

7-1

	8	Prehearing conference		8-1
		8.1 8.2 8.3	General policy Areas to cover (not necessarily in the following order) Circumstances arising at the prehearing conference which generally require clearance from the Regional Office	8-1 8-2 8-3

Stipulations in lieu of hearings

9-1

	10	Pre-opening preparations		10-1
		10.1 10.2 10.2.1 10.2.2 10.2.3 10.2.4	To do on your own Immediately prior to the opening of the hearing Complete appearance sheet, FLRA Form 50 If updated since the prehearing conference, re-examine the formal papers Order of witnesses Check again into possibilities for stipulations, election agreement or resolution of other issues	10-1 10-1 10-1 10-2 10-2 10-3

	11	Things for the Hearing Officer to keep in mind as the hearing opens		11-1
		11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9	Recesses for breaks, lunch, etc. Smoking Decorum of parties and witnesses Things to discuss with the court reporter Hearing Officer's demeanor towards parties Hearing Officer's demeanor towards witnesses Off the record remarks When the parties elect to allow the Hearing Officer to act as the primary examiner When the Hearing Officer is uncertain on how to proceed	11-1 11-1 11-1 11-1 11-1 11-2 11-2 11-2 11-2

EVIDENTIARY MATTERS — HOG 12 through HOG 15

Evidentiary and procedural matters

12-1

	13	Considerations in developing evidence		13-1
		13.1 13.1.1 13.1.2 13.2 13.2.1 13.2.2 13.2.2.1 13.2.2.2 13.2.3 13.2.4 13.2.5 13.2.6 13.2.7 13.2.8 13.2.9 13.2.10 13.2.11 13.3 13.3.1 13.3.2	Best evidence rule Testimony Introduction of documents Ruling on the admissibility of evidence Foundation Relevancy Evidentiary considerations - unit Evidentiary considerations-employee eligibility Materiality Hearsay and admissions Leading questions Oral evidence that contradicts written evidence Cumulative evidence Opinion evidence Judicial notice Official notice Administrative notice Theories of res judicata Doctrine of claim preclusion Doctrine of issue preclusion	13-1 13-1 13-1 13-1 13-1 13-2 13-2 13-2 13-2 13-2 13-3 13-3 13-3 13-3 13-3 13-4 13-4 13-4 13-4 13-4

Scope of cross examination

14-1

	15	Exhibits:		15-1
		15.1 15.2 15.3 15.4 15.5 15.6 15.7 15.8 15.9 15.10 15.11 15.12 15.13 15.14 15.15	General overview Marking exhibits for identification Marking Authority exhibits Authenticating the exhibit Offering the exhibit in evidence Voir dire Ruling by the Hearing Officer Rejected exhibit file Bulky exhibits Joint exhibits Documentary evidence that the parties refuse to provide to all parties Summary exhibits Custody of exhibits Request to withdraw original copy of exhibit Receipt of exhibit after conclusion of hearing	15-1 15-1 15-2 15-2 15-2 15-2 15-3 15-3 15-3 15-4 15-4 15-5 15-5 15-5 15-5

MOTIONS — HOG 16 through HOG 21

	16	Motions		16-1
		16.1 16.2 16.2.1 16.2.2	Purpose of a motion Service of motion Basic rule Specific rule	16-1 16-1 16-1 16-1

	17	Processing prehearing motions		17-1
		17.1 17.2 17.2.1 17.2.2 17.2.3 17.2.4 17.2.5 17.3 17.4 17.4.1 17.4.2 17.4.3 17.4.3.1 17.4.3.2 17.4.4 17.4.5 17.5 17.6 17.7 17.8	Generally Prehearing motion to postpone Policy on granting prehearing motions to postpone Granting the motion to postpone Denying the motion to postpone Indefinite postponement Resumption of indefinitely postponed hearing Prehearing motions (requests) to intervene, cross-petition, challenges to the validity of the showing of interest and challenges to the status of a labor organization Motions to intervene received too late for the region to process prior to the opening of the hearing Reviewing motions to intervene received too late for the region to process prior to the opening of the hearing Considerations when reviewing the showing of interest accompanying requests to intervene or cross-petition in election proceedings that are received too late for the region to process prior to the opening of the hearing Ruling on motions to intervene prior to the opening of the hearing Granting a motion to intervene Referring a motion to intervene to the Regional Director Conditional intervention Handling conditional motions to intervene on the record Prehearing motions to dismiss Prehearing motions to withdraw Other prehearing motions Orders	17-1 17-1 17-1 17-1 17-2 17-2 17-2 17-2 17-4 17-4 17-5 17-6 17-6 17-6 17-7 17-8 17-9 17-9 17-9 17-9

	18	Motions made during the hearing		18-1
		18.1 18.2 18.3 18.4 18.5 18.6 18.7 18.7.1 18.7.2 18.7.3 18.7.4 18.7.5 18.7.6 18.8 18.9 18.9.1 18.9.2	Generally Procedural requirements Motions to dismiss made during the hearing Motions to intervene made during the hearing Motions to participate as amicus curiae Motions to sequester witnesses Motion to amend the petition General Considerations on amending petitions Motion to amend the unit made during the hearing Obtaining complete description of amended unit Ruling on a motion to amend the unit that does not change the scope of the unit Ruling on a motion to amend the unit that changes the scope of the unit Motion to strike or expunge testimony Motion for continuance made during the hearing Grounds for continuance Hearing rescheduled	18-1 18-1 18-2 18-2 18-3 18-3 18-4 18-4 18-4 18-5 18-5 18-6 18-6 18-7 18-8 18-8 18-9

	19	Motions to withdraw		19-1
		19.1 19.1.1 19.1.2 19.2 19.2.1 19.2.2 19.3 19.4	Prehearing motions to withdraw Petitioner requests to withdraw Intervenor requests to withdraw Motions to withdraw made during the hearing Petitioner requests to withdraw Intervenor requests to withdraw Motions to withdraw made post-hearing Withdrawal with prejudice	19-1 19-1 19-1 19-2 19-2 19-2 19-2 19-3

Post-hearing motions

20-1

Motions to correct transcript

21-1

PROCEDURAL MATTERS — HOG 22 through HOG 31

Disclaimers

22-1

	23	Filing a cross-petition		23-1
		23.1 23.2 23.2.1 23.2.2 23.3 23.4 23.5	Filing requirements Processing cross-petitions received too late for the region to process prior to the opening of the hearing Handling cross-petitions received too late for the region to process prior to the opening of the hearing Ruling on cross-petitions that are received too late for the region to process prior to the opening of the hearing Cross-petitions filed after the hearing opens If the Regional Director does not permit participation by the cross-petitioner Cross-petitions filed immediately prior to the opening of the hearing or after the hearing opens that challenge the status of a petitioning or intervening labor organization on the basis that it is subject to corrupt or anti-democratic influences pursuant to 5 U.S.C. 7111(f)(1)	23-1 23-1 23-1 23-2 23-3 23-4 23-4

	24	Challenges to the validity of the showing of interest and challenges to the status of a labor organization		24-1
		24.1 24.2 24.3	When to file Challenges to the validity of the showing of interest Challenges to the status of a labor organization	24-1 24-1 24-1

Intervening circumstances which can change scope of hearing,
status of the parties or the issues

25-1

	26	Stipulations		26-1
		26.1 26.2 26.3 26.4 26.5 26.6 26.6.1 26.6.2	Requirements Preparing a stipulation Receiving stipulation in evidence Content of stipulations Stipulations obviating the need to continue the hearing Special circumstances that may arise during a hearing Attempt to withdraw from a stipulation already received in evidence Stipulations involving determinative challenged ballots	26-1 26-1 26-2 26-2 26-2 26-3 26-3 26-3

	27	Subpoenas		27-1
		27.1 27.2 27.3 27.4 27.5 27.6 27.7 27.8 27.9 27.10	General Application for subpoena Preparation of subpoena Issuance and control of subpoenas Issuance of subpoena during the hearing Service of subpoena Witness fees Petition to revoke subpoena Enforcement of subpoena Delays for enforcement	27-1 27-1 27-1 27-1 27-2 27-2 27-2 27-2 27-3 27-3

	28	Evidentiary and procedural objections		28-1
		28.1 28.2 28.3 28.4 28.5 28.6 28.7	General Stating basis for objection Arguing the objection Stating the ruling Interjection by Hearing Officer Objection to questioning by Hearing Officer Decide all objections	28-1 28-1 28-1 28-1 28-1 28-2 28-2

Offer of proof:

29-1

Appeals from adverse rulings by the Hearing Officer

30-1

	31	Obtaining an election agreement preceding or during the hearing		31-1
		31.1 31.2 31.2.1 31.2.2 31.2.3 31.3 31.4 31.4.1 31.4.2	General Prehearing election agreements Election agreement obtained Procedure upon approval of agreement Withdrawal of notice of hearing Election agreement obtained during the hearing Refusal by parties to sign election agreements Prehearing During the hearing	31-1 31-1 31-1 31-2 31-2 31-2 31-3 31-3 31-3

CONDUCTING THE HEARING — HOG 32 through HOG 34

	32	Conducting the hearing		32-1
		32.1 32.2 32.3 32.4 32.5 32.6 32.7 32.8 32.9 32.10 32.11 32.12 32.13 32.14 32.15 32.16 32.17 32.18 32.19 32.20 32.21	An overview Appearance sheets Calling the hearing to order Formal papers Ascertaining correct names of parties Motions to amend the petition Intervention Other prehearing motions or motions presented by the parties upon opening the hearing Outlining the issues presented by the petition(s) Timeliness issues Alternative unit(s) Receiving stipulations Outlining the issues to address at the hearing Summarizing the parties' positions Evidence Examination by the Hearing Officer Recommendations on the record Before closing the record Change of party position Closing argument Closing the hearing	32-1 32-1 32-1 32-1 32-2 32-2 32-2 32-2 32-2 32-2 32-2 32-3 32-3 32-3 32-3 32-5 32-6 32-7 32-7 32-8 32-8

	33	Special admissibility matters		33-1
		33.1 33.2 33.3 33.4 33.5 33.6 33.7 33.8 33.9	Attempt to litigate adequacy of showing of interest Attempt to litigate validity of showing of interest Attempt to litigate challenge to status of labor organization Attempt to litigate noncompliance with 5 U.S.C. 7111(e) Attempt to litigate noncompliance with 5 U.S.C. 7120 Attempt to litigate unfair labor practices Attempt to litigate supervisory assistance Attempt to litigate petitioner's unit eligibility Evidence with respect to the appropriateness of potential appropriate units other than those which may be identified in the petition	33-1 33-1 33-3 33-5 33-5 33-6 33-6 33-6 33-6

	34	Hearing Officer's Report		34-1
		34.1 34.2 34.3 34.4	Purpose Submission Preparation of the Hearing Officers Report Contents of Report	34-1 34-1 34-1 34-1

SAMPLE SCRIPT — HOG 35

	35	Script		35-1
		35.1 35.2 35.3 35.4 35.5 35.6 35-5 35.7 35.7.1 35.7.2 35.7.3 35.7.4 35.7.5 35.7.6 35.8 35.9 35.10 35.11 35.12 35.13 35.14 35.15 35.16 35.17	Appearances and opening statement Receiving formal papers in evidence Ascertaining correct names of parties Other motions to amend the petition Intervention and cross-petition Other prehearing motions presented by the parties upon opening the hearing Outlining the issues presented by the petition Appropriate unit Eligibility Matters relating to representation (e.g., reorganization, accretion, successorship, Montrose) Unit consolidations Determinative challenged ballots Timeliness issues Alternative unit(s) Receiving stipulations Outlining issues to explore at the hearing Summarizing the parties' positions Presentation of evidence Recommendations on the record Before closing the record Change of party position Additional matters Closing remarks	35-1 35-2 35-3 35-4 35-4 35-5 35-6 35-6 35-6 35-8 35-8 35-10 35-11 35-12 35-12 35-14 35-14 35-14 35-15 35-16 35-17 35-17 35-17

HEARING ON OBJECTIONS — HOG 36

	36	Hearings on election objections		36-1
		36.1 36.2 36.3 36.4 36.5 36.6 36.7 36.8 36.8.1	General When hearings on election objections are appropriate Nature and objective Participating Authority personnel Hearing Officer Functions and duties of the Hearing Officer Counsel for the Regional Office, functions and duties Credibility issues in election objections cases When the Regional Director determines prior to a hearing that a credibility determination is dispositive of an objection	36-1 36-1 36-1 36-1 36-1 36-2 36-2 36-3 36-3

EVIDENTIARY ISSUES — HOG 37 through HOG 50

	37	Appropriate unit determinations		37-1
		A. B. C. D. E.	Standard Community of Interest Effective Dealings and Efficiency of Operations Impact of the Concept of Fragmentation on Unit Determinations Relevant Information	37-1 37-1 37-2 37-4 37-4

Scope of unit

38-1

	39	Effect of changes in the character and scope of a unit due to a reorganization or realignment in agency operations		39-1
		A. B. C. D. E.	Purpose and Standards for Resolving Issues Arising from Reorganizations. Successorship. Accretion Competing Claims of Successorship and Accretion. Consolidated Units	39-1 39-6 39-11 39-13 39-14

40-1

(Reserved)

41-2

Dues allotment

42-1

	43	Changes in the name of the certified or recognized exclusive representative		43-1
		A. B. C.	Technical or nominal changes Montrose Impact of Trusteeships on Reaffiliation Petitions	43-1 43-1 43-4

Schism

44-1

Severance

45-1

	46	Status of a labor organization		46-1
		A. B.	Compliance with section 7103(a)(4) of the Statute Claims made pursuant to section 7111(f)(1) of the Statute	46-1 46-2