PART I -- OFFICE OF COMPLIANCE OFFICE OF COMPLIANCE
RULES OF PROCEDURE
Effective June 16, 2004
TABLE OF CONTENTS
Subpart A -- General Provisions
§1.01 Scope and Policy
§1.02 Definitions
§1.03 Filing and Computation of Time
§1.04 Availability of Official Information
§1.05 Designation of Representative
§1.06 Maintenance of Confidentiality
§1.07 Breach of Confidentiality Provisions
Subpart B -- Pre-Complaint Procedures Applicable to Consideration
of Alleged Violations of Part A of Title II of the Congressional
Accountability Act of 1995
§2.01 Matters Covered by Subpart B
§2.02 Requests for Advice and Information
§2.03 Counseling
§2.04 Mediation
§2.05 Election of Proceedings
§2.06 Filing of Civil Action
Subpart C -- [Reserved (Section 210 -- ADA Public Services)]
Subpart D -- Compliance, Investigation, Enforcement and Variance
Procedures under Section 215 of the CAA (Occupational Safety and
Health Act of 1970) Inspections, Citations, and Complaints
§4.01 Purpose and Scope
§4.02 Authority for Inspection
§4.03 Request for Inspections by Employees and Employing Offices
§4.04 Objection to Inspection
§4.05 Entry Not a Waiver
§4.06 Advance Notice of Inspection
§4.07 Conduct of Inspections
§4.08 Representatives of Employing Offices and Employees
§4.09 Consultation with Employees
§4.10 Inspection Not Warranted; Informal Review§4.11 Citations
§4.12 Imminent Danger
§4.13 Posting of Citations
§4.14 Failure to Correct a Violation for Which a Citation Has
Been Issued; Notice of Failure to Correct Violation; Complaint
§4.15 Informal Conferences
Rules of Practice for Variances, Limitations, Variations, Tolerances,
and Exemptions
§4.20 Purpose and Scope
§4.21 Definitions
§4.22 Effect of Variances
§4.23 Public Notice of a Granted Variance, Limitation, Variation,
Tolerance, or Exemption
§4.24 Form of Documents
§4.25 Applications for Temporary Variances and other Relief
§4.26 Applications for Permanent Variances and other Relief
§4.27 Modification or Revocation of Orders
§4.28 Action on Applications
§4.29 Consolidation of Proceedings
§4.30 Consent Findings and Rules or Orders
§4.31 Order of Proceedings and Burden of Proof
Subpart E -- Complaints
§5.01 Complaints
§5.02 Appointment of the Hearing Officer
§5.03 Dismissal, Summary Judgment, and Withdrawal of Complaint
§5.04 Confidentiality
Subpart F -- Discovery and Subpoenas
§6.01 Discovery
§6.02 Requests for Subpoenas
§6.03 Service
§6.04 Proof of Service
§6.05 Motion to Quash
§6.06 Enforcement
Subpart G -- Hearings
§7.01 The Hearing Officer
§7.02 Sanctions
§7.03 Disqualification of the Hearing Officer§7.04 Motions
and Prehearing Conference
§7.05 Scheduling the Hearing
§7.06 Consolidation and Joinder of Cases
§7.07 Conduct of Hearing; Disqualification of Representatives
§7.08 Transcript
§7.09 Admissibility of Evidence
§7.10 Stipulations
§7.11 Official Notice
§7.12 Confidentiality
§7.13 Immediate Board Review of a Ruling by a Hearing Officer
§7.14 Briefs
§7.15 Closing the record
§7.16 Hearing Officer Decisions; Entry in Records of the Office
Subpart H -- Proceedings before the Board
§8.01 Appeal to the Board
§8.02 Reconsideration
§8.03 Compliance with Final Decisions, Requests for Enforcement
§8.04 Judicial Review
Subpart I -- Other Matters of General Applicability
§9.01 Filing, Service and Size Limitations of Motions, Briefs,
Responses and other Documents
§9.02 Signing of Pleadings, Motions and Other Filings; Violations
of Rules; Sanctions
§9.03 Attorney's Fees and Costs
§9.04 Ex parte Communications
§9.05 Settlement Agreements
§9.06 Payments Pursuant to Decisions or Awards under Section
415(a) of the Act. §9.07 Revocation, Amendment or Waiver of
Rules
Procedural Rules
Subpart A -- General Provisions
§1.01 Scope and Policy
§1.02 Definitions
§1.03 Filing and Computation of Time
§1.04 Availability of Official Information
§1.05 Designation of Representative
§1.06 Maintenance of Confidentiality
§1.07 Breach of Confidentiality Provisions
§1.01 Scope and Policy.
These rules of the Office of Compliance govern the procedures for
consideration and resolution of alleged violations of the laws made
applicable under Parts A, B, C, and D of title II of the Congressional
Accountability Act of 1995. The rules include procedures for counseling,
mediation, and for electing between filing a complaint with the
Office of Compliance and filing a civil action in a district court
of the United States. The rules also address the procedures for
variances and compliance, investigation and enforcement under Part
C of title II and procedures for the conduct of hearings held as
a result of the filing of a complaint and for appeals to the Board
of Directors of the Office of Compliance from Hearing Officer decisions,
as well as other matters of general applicability to the dispute
resolution process and to the operations of the Office of Compliance.
It is the policy of the Office that these rules shall be applied
with due regard to the rights of all parties and in a manner that
expedites the resolution of disputes.
§1.02 Definitions.
Except as otherwise specifically provided in these rules, for purposes
of this Part:
(a) Act. The term "Act" means the Congressional Accountability
Act of 1995;
(b) Covered Employee. The term "covered employee" means
any employee of
(1) the House of Representatives;
(2) the Senate;
(3) the Capitol Guide Service;
(4) the Capitol Police;
(5) the Congressional Budget Office;
(6) the Office of the Architect of the Capitol;
(7) the Office of the Attending Physician;
(8) the Office of Compliance; or
(9) for the purposes stated in paragraph (q) of this section, the
General Accounting Office or the Library of Congress.
(c) Employee. The term "employee" includes an applicant
for employment and a former employee, except as provided in section
2421.3(b) of the Board's rules under section 220 of the Act.
(d) Employee of the Office of the Architect of the Capitol. The
term "employee of the Office of the Architect of the Capitol"
includes any employee of the Office of the Architect of the Capitol,
the Botanic Garden or the Senate Restaurants.
(e) Employee of the Capitol Police. The term "employee of the
Capitol Police" includes civilian employees and any member
or officer of the Capitol Police.
(f) Employee of the House of Representatives. The term "employee
of the House of Representatives" includes an individual occupying
a position the pay for which is disbursed by the Clerk of the House
of Representatives, or another official designated by the House
of Representatives, or any employment position in an entity that
is paid with funds derived from the clerk-hire allowance of the
House of Representatives, but not any such individual employed by
any entity listed in subparagraphs (3) through (9) of paragraph
(b) above.
(g) Employee of the Senate. The term "employee of the Senate"
includes any employee whose pay is disbursed by the Secretary of
the Senate, but not any such individual employed by any entity listed
in subparagraphs (3) through (9) of paragraph (b) above.
(h) Employing Office. The term "employing office" means:
(1) the personal office of a Member of the House of Representatives
or a Senator;
(2) a committee of the House of Representatives or the Senate or
a joint committee;
(3) any other office headed by a person with the final authority
to appoint, hire, discharge, and set the terms, conditions, or privileges
of the employment of an employee of the House of Representatives
or the Senate; or
(4) the Capitol Guide Board, the Capitol Police Board, the Congressional
Budget Office, the Office of the Architect of the Capitol, the Office
of the Attending Physician, and the Office of Compliance; or
(5) for the purposes stated in paragraph (q) of this section, the
General Accounting Office and the Library of Congress
(i) Party. The term "party" means:
(1) an employee or employing office in a proceeding under Part A
of title II of the Act;
(2) a charging individual, an entity alleged to be responsible for
correcting a violation, or the General Counsel in a proceeding under
Part B of title II of the Act;
(3) an employee, employing office, or as appropriate, the General
Counsel in a proceeding under Part C of title II of the Act; or
(4) a labor organization, individual employing office or employing
activity, or, as appropriate, the General Counsel in a proceeding
under Part D of title II of the Act.
(j) Respondent. The term "respondent" means the party
against which a complaint is filed.
(k) Office. The term "Office" means the Office of Compliance.
(l) Board. The term "Board" means the Board of Directors
of the Office of Compliance.
(m) Chair. The term "Chair" means the Chair of the Board
of Directors of the Office of Compliance.
(n) Executive Director. The term "Executive Director"
means the Executive Director of the Office of Compliance.
(o) General Counsel. The term "General Counsel" means
the General Counsel of the Office of Compliance.
(p) Hearing Officer. The term "Hearing Officer" means
any individual designated by the Executive Director to preside over
a hearing conducted on matters within the Office's jurisdiction.
(q) Coverage of the General Accounting Office and the Library of
Congress and their Employees. The term "employing office"
shall include the General Accounting Office and the Library of Congress,
and the term "covered employee" shall include employees
of the General Accounting Office and the Library of Congress, for
purposes of the proceedings and rulemakings described in subparagraphs
(1) and (2):
(1) Any proceeding under section 215 of the Act applies to covered
employees and employing offices certain rights and protections of
the Williams-Steiger Occupational Safety and Health Act of 1970.
(2) Any proceeding or rulemaking, for purposes of section 9.04 of
these rules.
§1.03 Filing and Computation of Time.
(a) Method of Filing. Documents may be filed in person or by mail,
including express, overnight and other expedited delivery. When
specifically requested by the Executive Director. or by a Hearing
Officer in the case of a matter pending before the Hearing Officer,
or by the Board of Directors in the case of an appeal to the Board,
any document may also be filed by electronic transmittal in a designated
format, with receipt confirmed by electronic transmittal in the
same format. Requests for counseling under section 2.03, requests
for mediation under section 2.04 and complaints under section 5.01
of these rules may also be filed by facsimile (FAX) transmission.
In addition, the Board or a Hearing Officer may order other documents
to be filed by FAX. The original copies of documents filed by FAX
must also be mailed to the Office no later than the day following
FAX transmission. The filing of all documents is subject to the
limitations set forth below.
(1) In Person. A document shall be deemed timely filed if it is
hand delivered to the Office in: Adams Building, Room LA 200, 110
Second Street, S.E., Washington, D.C. 20540-1999, before 5:00 p.m.
Eastern Time on the last day of the applicable time period.
(2) Mailing.
(i) If mailed, including express, overnight and other expedited
delivery, a request for mediation or a complaint is deemed filed
on the date of its receipt in the Office.
(ii) A document, other than a request for mediation or a complaint,
is deemed filed on the date of its postmark or proof of mailing
to the Office. Parties, including those using franked mail, are
responsible for ensuring that any mailed document bears a postmark
date or other proof of the actual date of mailing. In the absence
of a legible postmark a document will be deemed timely if it is
received by the Office at Adams Building, Room LA 200, 110 Second
Street, S.E., Washington, D.C. 20540-1999, by mail within five (5)
days of the expiration of the applicable filing period.
(3) Faxing Documents. Documents transmitted by FAX machine will
be deemed filed on the date received at the Office at 202-426-1913,
or, in the case of any document to be filed or submitted to the
General Counsel, on the date received at the Office of the General
Counsel at 202-426-1663. A FAX filing will be timely only if the
document is received no later than 5:00 PM Eastern Time on the last
day of the applicable filing period. Any party using a FAX machine
to file a document bears the responsibility for ensuring both that
the document is timely and accurately transmitted and confirming
that the Office has received a facsimile of the document. The party
or individual filing the document may rely on its FAX status report
sheet to show that it filed the document in a timely manner, provided
that the status report indicates the date of the FAX, the receiver's
FAX number, the number of pages included in the FAX, and that transmission
was completed.
(b) Computation of Time. All time periods in these rules that are
stated in terms of days are calendar days unless otherwise noted.
However, when the period of time prescribed is five (5) days or
less, intermediate Saturdays, Sundays and federal government holidays
shall be excluded in the computation. To compute the number of days
for taking any action required or permitted under these rules, the
first day shall be the day after the event from which the time period
begins to run and the last day for filing or service shall be included
in the computation. When the last day falls on a Saturday, Sunday,
or federal government holiday, the last day for taking the action
shall be the next regular federal government workday.
(c) Time Allowances for Mailing of Official Notices. Whenever a
person or party has the right or is required to do some act within
a prescribed period after the service of a notice or other document
upon him or her and the notice or document is served by regular,
first-class mail, five (5) days shall be added to the prescribed
period. Only two (2) days shall be added if a document is served
by express mail or other form of expedited delivery. When documents
are served by certified mail, return receipt requested, the prescribed
period shall be calculated from the date of receipt as evidenced
by the return receipt.
(d) Service or filing of documents by certified mail, return receipt
requested. Whenever these rules permit or require service or filing
of documents by certified mail, return receipt requested, such documents
may also be served or filed by express mail or other forms of expedited
delivery in which proof of date of receipt by the addressee is provided.
§1.04 Availability of Official Information.
(a) Policy. It is the policy of the Board, the Office and the General
Counsel, except as otherwise ordered by the Board, to make available
for public inspection and copying final decisions and orders of
the Board and the Office, as specified and described in paragraph
(d) below.
(b) Availability. Any person may examine and copy items described
in paragraph (a) above at the Office of Compliance, Adams Building,
Room LA 200, 110 Second Street, S.E., Washington, D.C. 20540-1999,
under conditions prescribed by the Office, including requiring payment
for copying costs, and at reasonable times during normal working
hours so long as it does not interfere with the efficient operations
of the Office. As ordered by the Board, the Office may withhold
or place under seal identifying details or other necessary matters,
and, in each case, the reason for the withholding or sealing shall
be stated in writing.
(c) Copies of Forms. Copies of blank forms prescribed by the Office
for the filing of complaints and other actions or requests may be
obtained from the Office.
(d) Final Decisions. Pursuant to section 416(f) of the Act, a final
decision entered by a Hearing Officer or by the Board under section
405(g) or 406(e) of the Act, which is in favor of the complaining
covered employee, or in favor of the charging party under section
210 of the Act, or reverses a Hearing Officer's decision in favor
of a complaining covered employee or charging party, shall be made
public, except as otherwise ordered by the Board. The Board may
make public any other decision at its discretion.
(e) Release of Records for Judicial Action. The records of Hearing
Officers and the Board may be made public if required for the purpose
of judicial review under section 407 of the Act.
(f) Access by Committees of Congress. At the discretion of the Executive
Director, the Executive Director may provide to the Committee on
Standards of Official Conduct of the House of Representatives and
the Select Committee on Ethics of the Senate access to the records
of the hearings and decisions of the Hearing Officers and the Board,
including all written and oral testimony in the possession of the
Office. The identifying information in these records may be redacted
at the discretion of the Executive Director. The Executive Director
shall not provide such access until the Executive Director has consulted
with the individual filing the complaint at issue, and until a final
decision has been entered under section 405(g) or 406(e) of the
Act.
§1.05 Designation of Representative.
(a) An employee, other charging individual or party, a witness,
a labor organization, an employing office, or an entity alleged
to be responsible for correcting a violation wishing to be represented
by another individual must file with the Office a written notice
of designation of representative. The representative may be, but
is not required to be, an attorney.
(b) Service where there is a Representative. All service of documents
shall be directed to the representative, unless the represented
individual, labor organization, or employing office specifies otherwise
and until such time as that individual, labor organization, or employing
office notifies the Executive Director of an amendment or revocation
of the designation of representative. Where a designation of representative
is in effect, all time limitations for receipt of materials by the
represented individual or entity shall be computed in the same manner
as for unrepresented individuals or entities with service of the
documents, however, directed to the representative, as provided.
§1.06 Maintenance of Confidentiality.
(a) Policy. In accord with section 416 of the Act, it is the policy
of the Office to maintain, to the fullest extent possible, the confidentiality
of the proceedings and of the participants in proceedings conducted
under sections 402, 403, 405 and 406 of the Act and these rules.
(b) At the time that any individual, employing office or party,
including a designated representative, becomes a participant in
counseling under section 402, mediation under section 403, the complaint
and hearing process under section 405, or an appeal to the Board
under section 406 of the Act, or any related proceeding, the Office
will advise the participant of the confidentiality requirements
of section 416 of the Act and these rules and that sanctions may
be imposed for a violation of those requirements.
§1.07 Breach of Confidentiality Provisions.
(a) In General. Section 416(a) of the CAA provides that counseling
under section 402 shall be strictly confidential, except that the
Office and a covered employee may agree to notify the employing
office of the allegations. Section 416(b) provides that all mediation
shall be strictly confidential. Section 416(c) provides that all
proceedings and deliberations of Hearing Officers and the Board,
including any related records shall be confidential, except for
release of records necessary for judicial actions, access by certain
committees of Congress, and, in accordance with section 416(f),
publication of certain final decisions. Section 416(c) does not
apply to proceedings under section 215 of the Act, but does apply
to the deliberations of Hearing Officers and the Board under section
215. See also sections 1.06, 5.04 and 7.12 of these rules.
(b) Prohibition. Unless specifically authorized by the provisions
of the CAA or by order of the Board, the Hearing Officer or a court,
or by the procedural rules of the Office, no participant in counseling,
mediation or other proceedings made confidential under section 416
of the CAA ("confidential proceedings") may disclose the
contents or records of those proceedings to any person or entity.
Nothing in these rules prohibits a bona fide representative of a
party under section 1.05 from engaging in communications with that
party for the purpose of participation in the proceedings, provided
that such disclosure is not made in the presence of individuals
not reasonably necessary to the representative's representation
of that party. Moreover, nothing in these rules prohibits a party
or its representative from disclosing information obtained in confidential
proceedings for the limited purposes of investigating claims, ensuring
compliance with the Act or preparing its prosecution or defense,
to the extent that such disclosure is reasonably necessary to accomplish
the aforementioned purposes and provided that the party making the
disclosure takes all reasonably appropriate steps to ensure that
persons to whom the information is disclosed maintain the confidentiality
of such information.
(c) Participant. For the purposes of this rule, participant means
any individual or party, including a designated representative,
that becomes a participant in counseling under section 402, mediation
under section 403, the complaint and hearing process under section
405, or an appeal to the Board under section 406 of the Act, or
any related proceeding which is expressly or by necessity deemed
confidential under the Act or these rules.
(d) Contents or Records of Confidential Proceedings. For the purpose
of this rule, the contents or records of counseling, mediation or
other proceeding includes the information disclosed by participants
to the proceedings, and records disclosed by either the opposing
party, witnesses or the Office. A participant is free to disclose
facts and other information obtained from any source outside of
the confidential proceedings. For example, an employing office or
its representatives may disclose information about its employment
practices and personnel actions, provided that the information was
not obtained in a confidential proceeding. However, an employee
who obtains that information in mediation or other confidential
proceeding may not disclose such information. Similarly, information
forming the basis for the allegation of a complaining employee may
be disclosed by that employee, provided that the information contained
in those allegations was not obtained in a confidential proceeding.
However, the employing office or its representatives may not disclose
that information if it was obtained in a confidential proceeding.
(e) Violation of Confidentiality. Any complaint regarding a violation
of the confidentiality provisions must be made to the Executive
Director no later than 30 days after the date of the alleged violation.
Such complaints may be referred by the Executive Director to a Hearing
Officer. The Hearing Officer is also authorized to initiate proceedings
on his or her own initiative, or at the direction of the Board,
if the alleged violation occurred in the context of Board proceedings.
Upon a finding of a violation of the confidentiality provisions,
the Hearing Officer, after notice and hearing, may impose an appropriate
sanction, which may include any of the sanctions listed in section
7.02 of these rules, as well as any of the following:
(1) an order that the matters regarding which the violation occurred
or any other designated facts shall be taken to be established against
the violating party for the purposes of the action in accordance
with the claim of the other party;
(2) an order refusing to allow the violating party to support or
oppose designated claims or defenses, or prohibiting him from introducing
designated matters in evidence;
(3) an order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing with
or without prejudice the action or proceedings or any part thereof,
or rendering a judgment by default against the violating party;
(4) in lieu of any of the foregoing orders or in addition thereto,
the Hearing Officer shall require the party violating the confidentiality
provisions or the representative advising him, or both, to pay,
at such time as ordered by the Hearing Officer, the reasonable expenses,
including attorney fees, caused by the violation, unless the Hearing
Officer finds that the failure was substantially justified or that
other circumstances make an award of expenses unjust. Such an order
shall be subject to review on appeal of the final decision of the
Hearing Officer under section 406 of the Act.
No sanctions may be imposed under this section except for good cause
and the particulars of which must be stated in the sanction order.
Subpart B -- Pre-Complaint Procedures Applicable to Consideration
of Alleged Violations of Part A of Title II of the Congressional
Accountability Act of 1995
§2.01 Matters Covered by Subpart B
§2.02 Requests for Advice and Information
§2.03 Counseling
§2.04 Mediation
§2.05 Election of Proceedings
§2.06 Filing of Civil Action
§2.01 Matters Covered by Subpart B.
(a) These rules govern the processing of any allegation that sections
201 through 206 of the Act have been violated and any allegation
of intimidation or reprisal prohibited under section 207 of the
Act. Sections 201 through 206 of the Act apply to covered employees
and employing offices certain rights and protections of the following
laws:
(1) the Fair Labor Standards Act of 1938
(2) Title VII of the Civil Rights Act of 1964
(3) Title I of the Americans with Disabilities Act of 1990
(4) the Age Discrimination in Employment Act of 1967
(5) the Family and Medical Leave Act of 1993
(6) the Employee Polygraph Protection Act of 1988
(7) the Worker Adjustment and Retraining Notification Act
(8) the Rehabilitation Act of 1973
(9) Chapter 43 (relating to veterans' employment and reemployment)
of title 38, United States Code.
(b) This subpart applies to the covered employees and employing
offices as defined in section 1.02(b) and (h) of these rules and
any activities within the coverage of sections 201 through 206 and
207 of the Act and referenced above in section 2.01(a) of these
rules.
§2.02 Requests for Advice and Information.
At any time, an employee or an employing office may seek from the
Office informal advice and information on the procedures of the
Office and under the Act and information on the protections, rights
and responsibilities under the Act and these rules. The Office will
maintain the confidentiality of requests for such advice or information.
§2.03 Counseling.
(a) Initiating a Proceeding; Formal Request for Counseling. In order
to initiate a proceeding under these rules, an employee shall file
a written request for counseling with the Office regarding an alleged
violation of the Act, as referred to in section 2.01(a), above.
All requests for counseling shall be confidential, unless the employee
agrees to waive his or her right to confidentiality under section
2.03(e)(2), below.
(b) Who May Request Counseling. A covered employee who believes
that he or she has been or is the subject of a violation of the
Act as referred to in section 2.01(a) may formally request counseling.
(c) When, How and Where to Request Counseling. A request for counseling
must be in writing, and shall be filed pursuant to the requirements
of section 2.03(a) of these Rules with the Office of Compliance
at Room LA-200, 110 Second Street, S.E., Washington, D.C. 20540-1999;
FAX 202-426-1913; TDD 202-426-1912, not later than 180 days after
the alleged violation of the Act.
(d) Purpose of Counseling Period. The purpose of the counseling
period shall be: to discuss the employee's concerns and elicit information
regarding the matter(s) which the employee believes constitute a
violation(s) of the Act; to advise the employee of his or her rights
and responsibilities under the Act and the procedures of the Office
under these rules; to evaluate the matter; and to assist the employee
in achieving an early resolution of the matter, if possible.
(e) Confidentiality and Waiver.
(1) Absent a waiver under paragraph 2, below, all counseling shall
be strictly confidential. Nothing in these rules shall prevent a
counselor from consulting with personnel within the Office concerning
a matter in counseling, except that, when the person being counseled
is an employee of the Office, the counselor shall not consult with
any individual within the Office who might be a party or witness
without the consent of the person requesting counseling. Nothing
contained in these rules shall prevent the Executive Director from
reporting statistical information to the Senate and House of Representatives,
so long as that statistical information does not reveal the identity
of the employees involved or of employing offices that are the subject
of a request for counseling.
(2) The employee and the Office may agree to waive confidentiality
of the counseling process for the limited purpose of contacting
the employing office to obtain information to be used in counseling
the employee or to attempt a resolution of any disputed matter(s).
Such a limited waiver must be written on the form supplied by the
Office and signed by both the counselor and the employee.
(f) Role of Counselor in Informing Employee of his or her Rights
and Responsibilities. The counselor will provide the employee with
appropriate information concerning rights and responsibilities under
the Act and these rules.
(g) Role of Counselor in Defining Concerns. The counselor may:
(1) obtain the name, home and office mailing addresses, and home
and office telephone numbers of the person being counseled;
(2) obtain the name and title of the person(s) whom the employee
claims has engaged in a violation of the Act and the employing office
in which this person(s) works;
(3) obtain a detailed description of the action(s) at issue, including
all relevant dates, and the covered employee's reason(s) for believing
that a violation may have occurred;
(4) inquire as to the relief sought by the covered employee;
(5) obtain the name, address and telephone number of the employee's
representative, if any, and whether the representative is an attorney.
(h) Role of Counselor in Attempting Informal Resolution. In order
to attempt to resolve the matter brought to the attention of the
counselor, the counselor must obtain a waiver of confidentiality
pursuant to section 2.03(e)(2) of these rules. If the employee executes
such a waiver, the counselor may:
(1) conduct a limited inquiry for the purpose of obtaining any information
necessary to attempt an informal resolution or formal settlement;
(2) reduce to writing any formal settlement achieved and secure
the signatures of the employee, his or her representative, if any,
and a member of the employing office who is authorized to enter
into a settlement on the employing office's behalf; and, pursuant
to section 414 of the Act and section 9.05 of these rules, seek
the approval of the Executive Director. Nothing in this subsection,
however, precludes the employee, the employing office or their representatives
from reducing to writing any formal settlement.
(i) Counselor Not a Representative. The counselor shall inform the
person being counseled that the counselor does not represent either
the employing office or the employee. The counselor provides information
and may act as a third-party intermediary with the goals of increasing
the individual's understanding of his or her rights and responsibilities
under the Act and of promoting the early resolution of the matter.
(j) Duration of Counseling Period. The period for counseling shall
be 30 days, beginning on the date that the request for counseling
is received by the Office unless the employee and the Office agree
to reduce the period.
(k) Duty to Proceed. An employee who initiates a proceeding under
this part shall be responsible at all times for proceeding, regardless
of whether he or she has designated a representative. An employee,
however, may withdraw from counseling once without prejudice to
the employee's right to reinstate counseling regarding the same
matter, provided that the request to reinstate counseling is received
in the Office not later than 180 days after the date of the alleged
violation of the Act and that counseling on a single matter will
not last longer than a total of 30 days.
(l) Conclusion of the Counseling Period and Notice. The Executive
Director shall notify the employee in writing of the end of the
counseling period, by certified mail, return receipt requested,
or by personal delivery evidenced by a written receipt. The Executive
Director, as part of the notification of the end of the counseling
period, shall inform the employee of the right and obligation, should
the employee choose to pursue his or her claim, to file with the
Office a request for mediation within 15 days after receipt by the
employee of the notice of the end of the counseling period.
(m) Employees of the Office of the Architect of the Capitol and
Capitol Police.
(1) Where an employee of the Office of the Architect of the Capitol
or of the Capitol Police requests counseling under the Act and these
rules, the Executive Director may recommend that the employee use
the grievance procedures of the Architect of the Capitol or the
Capitol Police. The term "grievance procedures" refers
to internal procedures of the Architect of the Capitol and the Capitol
Police that can provide a resolution of the matter(s) about which
counseling was requested. Pursuant to section 401 of the Act and
by agreement with the Architect of the Capitol and the Capitol Police
Board, when the Executive Director makes such a recommendation,
the following procedures shall apply:
(i) The Executive Director shall recommend to the employee that
the employee use the grievance procedures of the Architect of the
Capitol or of the Capitol Police Board, as appropriate, for a period
generally up to 90 days, unless the Executive Director determines
a longer period is appropriate for resolution of the employee's
complaint through the grievance procedures of the Architect of the
Capitol or the Capitol Police Board;
(ii) After having contacted the Office and having utilized the grievance
procedures of the Architect of the Capitol or of the Capitol Police
Board, the employee may notify the Office that he or she wishes
to return to the procedures under these rules:
(A) within 60 days after the expiration of the period recommended
by the Executive Director, if the matter has not resulted in a final
decision; or
(B) within 20 days after service of a final decision resulting from
the grievance procedures of the Architect of the Capitol or of the
Capitol Police Board.
(iii) The period during which the matter is pending in the internal
grievance procedure shall not count against the time available for
counseling or mediation under the Act. If the grievance is resolved
to the employee's satisfaction, the employee shall so notify the
Office within 20 days after the employee has received service of
the final decision resulting from the grievance procedure. If no
request to return to the procedures under these rules is received
within 60 days after the expiration of the period recommended by
the Executive Director, the Office will issue a Notice of End of
Counseling, as specified in section 2.04(i) of these Rules.
(2) Notice to Employees who Have Not Initiated Counseling with the
Office. When an employee of the Architect of the Capitol or the
Capitol Police raises in the internal procedures of the Architect
of the Capitol or of the Capitol Police Board an allegation which
may also be raised under the procedures set forth in this subpart,
the Architect of the Capitol or the Capitol Police Board should
advise the employee in writing that a request for counseling about
the allegation must be initiated with the Office within 180 days
after the alleged violation of law occurred if the employee intends
to use the procedures of the Office.
(3) Notice in Final Decisions when Employees Have Not Initiated
Counseling with the Office. When an employee raises in the internal
procedures of the Architect of the Capitol or of the Capitol Police
Board an allegation which may also be raised under the procedures
set forth in this subpart, any final decision pursuant to the procedures
of the Architect of the Capitol or of the Capitol Police Board should
include notice to the employee of his or her right to initiate the
procedures under these rules within 180 days after the alleged violation
occurred.
(4) Notice in Final Decisions when there Has Been a Recommendation
by the Executive Director. When the Executive Director has made
a recommendation under paragraph 1 above, the Architect of the Capitol
or the Capitol Police Board should include with the final decision
notice to the employee of his or her right to resume the procedures
under these rules within 20 days after service on the employee of
the final decision and shall transmit a copy of the final decision,
settlement agreement, or other final disposition of the case to
the Executive Director.
§2.04 Mediation.
(a) Explanation. Mediation is a process in which employees, employing
offices and their representatives, if any, meet separately and/or
jointly with a neutral trained to assist them in resolving disputes.
As parties to the mediation, employees, employing offices, and their
representatives discuss alternatives to continuing their dispute,
including the possibility of reaching a voluntary, mutually satisfactory
resolution. The neutral has no power to impose a specific resolution,
and the mediation process, whether or not a resolution is reached,
is strictly confidential, pursuant to section 416 of the Act.
(b) Initiation. Not more than 15 days after receipt by the employee
of the notice of the conclusion of the counseling period under section
2.03(l), the employee may file with the Office a written request
for mediation. The request for mediation shall contain the employee's
name, address, and telephone number, and the name of the employing
office that is the subject of the request. Failure to request mediation
within the prescribed period will preclude the employee's further
pursuit of his or her claim.
(c) Notice of Commencement of the Mediation Period. The Office shall
notify the employing office or its designated representative of
the commencement of the mediation period.
(d) Selection of Neutrals; Disqualification. Upon receipt of the
request for mediation, the Executive Director shall assign one or
more neutrals to commence the mediation process. In the event that
a neutral considers him or herself unable to perform in a neutral
role in a given situation, he or she shall withdraw from the matter
and immediately shall notify the Office of the withdrawal. Any party
may ask the Office to disqualify a neutral by filing a written request,
including the reasons for such request, with the Executive Director.
This request shall be filed as soon as the party has reason to believe
there is a basis for disqualification. The Executive Director's
decision on this request shall be final and unreviewable.
(e) Duration and Extension.
(1) The mediation period shall be 30 days beginning on the date
the request for mediation is received, unless the Office grants
an extension.
(2) The Office may extend the mediation period upon the joint written
request of the parties, or of the appointed mediator on behalf of
the parties, to the attention of the Executive Director. The request
shall be written and filed with the Office no later than the last
day of the mediation period. The request shall set forth the joint
nature of the request and the reasons therefor, and specify when
the parties expect to conclude their discussions. Requests for additional
extensions may be made in the same manner. Approval of any extensions
shall be within the sole discretion of the Office.
(f) Procedures.
(1) The Neutral's Role. After assignment of the case, the neutral
will promptly contact the parties. The neutral has the responsibility
to conduct the mediation, including deciding how many meetings are
necessary and who may participate in each meeting. The neutral may
accept and may ask the parties to provide written submissions.
(2) The Agreement to Mediate. At the commencement of the mediation,
the neutral will ask the parties to sign an agreement prepared by
the Office ("the Agreement to Mediate"). The Agreement
to Mediate will set out the conditions under which mediation will
occur, including the requirement that the participants adhere to
the confidentiality of the process. The Agreement to Mediate will
also provide that the parties to the mediation will not seek to
have the counselor or the neutral participate, testify or otherwise
present evidence in any subsequent civil action under section 408
of the Act or any other proceeding.
(g) Who May Participate. The covered employee, the employing office,
their respective representatives, and the Office may meet, jointly
or separately, with the neutral. A representative of the employee
and a representative of the employing office who has actual authority
to agree to a settlement agreement on behalf of the employee or
the employing office, as the case may be, must be present at the
mediation or must be immediately accessible by telephone during
the mediation.
(h) Informal Resolutions and Settlement Agreements. At any time
during mediation the parties may resolve or settle a dispute in
accordance with section 9.05 of these rules.
(i) Conclusion of the Mediation Period and Notice. If, at the end
of the mediation period, the parties have not resolved the matter
that forms the basis of the request for mediation, the Office shall
provide the employee, and the employing office, and their representatives,
with written notice that the mediation period has concluded. The
written notice to the employee will be sent by certified mail, return
receipt requested, or will be personally delivered, evidenced by
a written receipt, and it will also notify the employee of his or
her right to elect to file a complaint with the Office in accordance
with section 405 of the Act and section 5.01 of these rules or to
file a civil action pursuant to section 408 of the Act and section
2.06 of these rules.
(j) Independence of the Mediation Process and the Neutral. The Office
will maintain the independence of the mediation process and the
neutral. No individual, who is appointed by the Executive Director
to mediate, may conduct or aid in a hearing conducted under section
405 of the Act with respect to the same matter or shall be subject
to subpoena or any other compulsory process with respect to the
same matter.
(k) Confidentiality. Except as necessary to consult with the parties,
their counsel or other designated representatives, the parties to
the mediation, the neutral, and the Office shall not disclose, in
whole or in part, any information or records obtained through, or
prepared specifically for, the mediation process. This rule shall
not preclude a neutral from consulting with the Office, except that
when the covered employee is an employee of the Office a neutral
shall not consult with any individual within the Office who might
be a party or witness. This rule shall also not preclude the Office
from reporting statistical information to the Senate and House of
Representatives that does not reveal the identity of the employees
or employing offices involved in the mediation. All parties to the
action and their representatives will be advised of the confidentiality
requirements of this process and of the sanctions that might be
imposed for violating these requirements.
(l) Employees of the Office of the Architect of the Capitol and
the Capitol Police. At any time during the mediation period, the
Executive Director may recommend that the employee use the grievance
procedures of the Architect of the Capitol and the Capitol Police
in accordance with the procedures set forth in section 2.03(m) of
these rules.
§2.05 Election of Proceeding.
(a) Pursuant to section 404 of the Act, not later than 90 days after
a covered employee receives notice of the end of mediation under
section 2.04(i) of these rules, but no sooner than 30 days after
that date, the covered employee may either:
(1) file a complaint with the Office in accordance with section
405 of the Act and the procedure set out in section 5.01, below;
or
(2) file a civil action in accordance with section 408 of the Act
and section 2.06 below in the United States District Court for the
district in which the employee is employed or for the District of
Columbia.
(b) A covered employee who files a civil action pursuant to section
2.06, may not thereafter file a complaint under section 5.01 on
the same matter.
§2.06 Filing of Civil Action.
(a) Filing. Section 404 of the Act provides that as an alternative
to filing a complaint under section 408 of the Act and section 5.01
of these rules, a covered employee who receives notice of the end
of mediation pursuant to section 403 of the Act and section 2.04(i)
of these rules may elect to file a civil action in accordance with
Section 408 of the Act in the United States district court for the
district in which the employee is employed or for the District of
Columbia.
(b) Time for Filing. A covered employee may file such a civil action
no earlier than 30 days after receipt of the notice under the section
2.04(i), but no later than 90 days after that receipt.
(c) Communication Regarding Civil Actions Filed with District Court.
The party filing any civil action with the United States District
Court pursuant to sections 404(2) and 408 of the Act shall provide
a written notice to the Office that the party has filed a civil
action, specifying the district court in which the civil action
was filed and the case number.
Subpart C -- [Reserved (Section 210 -- ADA Public Services)]
Subpart D -- Compliance, Investigation, Enforcement and Variance
Process under Section 215 of the CAA (Occupational Safety and Health
Act of 1970) Inspections, Citations, and Complaints
§4.01 Purpose and Scope
§4.02 Authority for Inspection
§4.03 Request for Inspections by Employees and Employing Offices
§4.04 Objection to Inspection
§4.05 Entry Not a Waiver
§4.06 Advance Notice of Inspection
§4.07 Conduct of Inspections
§4.08 Representatives of Employing Offices and Employees
§4.09 Consultation with Employees
§4.10 Inspection Not Warranted; Informal Review
§4.11 Citations
§4.12 Imminent Danger
§4.13 Posting of Citations
§4.14 Failure to Correct a Violation for Which a Citation Has
Been Issued; Notice of Failure to Correct Violation; Complaint
§4.15 Informal Conferences
Rules of Practice for Variances, Limitations, Variations, Tolerances,
and Exemptions
§4.20 Purpose and Scope
§4.21 Definitions
§4.22 Effect of Variances
§4.23 Public Notice of a Granted Variance, Limitation, Variation,
Tolerance, or Exemption
§4.24 Form of Documents
§4.25 Applications for Temporary Variances and other Relief§4.26
Applications for Permanent Variances and other Relief
§4.27 Modification or Revocation of Orders
§4.28 Action on Applications
§4.29 Consolidation of Proceedings
§4.30 Consent Findings and Rules or Orders
§4.31 Order of Proceedings and Burden of Proof
Inspections, Citations and Complaints
§4.01 Purpose and Scope.
The purpose of sections 4.01 through 4.15 of this subpart is to
prescribe rules and procedures for enforcement of the inspection
and citation provisions of section 215(c)(1) through (3) of the
CAA. For the purpose of sections 4.01 through 4.15, references to
the "General Counsel" include any authorized representative
of the General Counsel. In situations where sections 4.01 through
4.15 set forth general enforcement policies rather than substantive
or procedural rules, such policies may be modified in specific circumstances
where the General Counsel or the General Counsel's designee determines
that an alternative course of action would better serve the objectives
of section 215 of the CAA.
§4.02 Authority for Inspection.
(a) Under section 215(c)(1) of the CAA, upon written request of
any employing office or covered employee, the General Counsel is
authorized to enter without delay and at reasonable times any place
of employment under the jurisdiction of an employing office; to
inspect and investigate during regular working hours and at other
reasonable times, and within reasonable limits and in a reasonable
manner, any such place of employment, and all pertinent conditions,
structures, machines, apparatus, devices, equipment and materials
therein; to question privately any employing office, operator, agent
or employee; and to review records required by the CAA and regulations
promulgated thereunder, and other records which are directly related
to the purpose of the inspection.
(b) Prior to inspecting areas containing information which is classified
by an agency of the United States Government (and/or by any congressional
committee or other authorized entity within the Legislative Branch)
in the interest of national security, and for which security clearance
is required as a condition for access to the area(s) to be inspected,
the individual(s) conducting the inspection shall have obtained
the appropriate security clearance.
§4.03 Requests for Inspections by Employees and Covered Employing
Offices.
(a) By Covered Employees and Representatives.
(1) Any covered employee or representative of covered employees
who believes that a violation of section 215 of the CAA exists in
any place of employment under the jurisdiction of employing offices
may request an inspection of such place of employment by giving
notice of the alleged violation to the General Counsel. Any such
notice shall be reduced to writing on a form available from the
Office, shall set forth with reasonable particularity the grounds
for the notice, and shall be signed by the employee or the representative
of the employees. A copy shall be provided to the employing office
or its agent by the General Counsel or the General Counsel's designee
no later than at the time of inspection, except that, upon the written
request of the person giving such notice, his or her name and the
names of individual employees referred to therein shall not appear
in such copy or on any record published, released, or made available
by the General Counsel.
(2) If upon receipt of such notification the General Counsel's designee
determines that the notice meets the requirements set forth in subparagraph
(1) of this section, and that there are reasonable grounds to believe
that the alleged violation exists, he or she shall cause an inspection
to be made as soon as practicable, to determine if such alleged
violation exists. Inspections under this section shall not be limited
to matters referred to in the notice.
(3) Prior to or during any inspection of a place of employment,
any covered employee or representative of employees may notify the
General Counsel's designee, in writing, of any violation of section
215 of the CAA which he or she has reason to believe exists in such
place of employment. Any such notice shall comply with the requirements
of subparagraph (1) of this section.
(b) By Employing Offices. Upon written request of any employing
office, the General Counsel or the General Counsel's designee shall
inspect and investigate places of employment under the jurisdiction
of employing offices under section 215(c)(1) of the CAA. Any such
requests shall be reduced to writing on a form available from the
Office.
§4.04 Objection to Inspection.
Upon a refusal to permit the General Counsel's designee, in exercise
of his or her official duties, to enter without delay and at reasonable
times any place of employment or any place therein, to inspect,
to review records, or to question any employing office, operator,
agent, or employee, in accordance with section 4.02 or to permit
a representative of employees to accompany the General Counsel's
designee during the physical inspection of any workplace in accordance
with section 4.07, the General Counsel's designee shall terminate
the inspection or confine the inspection to other areas, conditions,
structures, machines, apparatus, devices, equipment, materials,
records, or interviews concerning which no objection is raised.
The General Counsel's designee shall endeavor to ascertain the reason
for such refusal, and shall immediately report the refusal and the
reason therefor to the General Counsel, who shall take appropriate
action.
§4.05 Entry Not a Waiver.
Any permission to enter, inspect, review records, or question any
person, shall not imply or be conditioned upon a waiver of any cause
of action or citation under section 215 of the CAA.
§4.06 Advance Notice of Inspections.
(a) Advance notice of inspections may not be given, except in the
following situations:
(1) in cases of apparent imminent danger, to enable the employing
office to abate the danger as quickly as possible;
(2) in circumstances where the inspection can most effectively be
conducted after regular business hours or where special preparations
are necessary for an inspection;
(3) where necessary to assure the presence of representatives of
the employing office and employees or the appropriate personnel
needed to aid in the inspection; and
(4) in other circumstances where the General Counsel determines
that the giving of advance notice would enhance the probability
of an effective and thorough inspection.
(b) In the situations described in paragraph (a) of this section,
advance notice of inspections may be given only if authorized by
the General Counsel, except that in cases of apparent imminent danger,
advance notice may be given by the General Counsel's designee without
such authorization if the General Counsel is not immediately available.
When advance notice is given, it shall be the employing office's
responsibility promptly to notify the authorized representative
of employees, if the identity of such representative is known to
the employing office. (See section 4.08(b) as to situations where
there is no authorized representative of employees.) Upon the request
of the employing office, the General Counsel will inform the authorized
representative of employees of the inspection, provided that the
employing office furnishes the General Counsel's designee with the
identity of such representative and with such other information
as is necessary to enable him promptly to inform such representative
of the inspection. Advance notice in any of the situations described
in paragraph (a) of this section shall not be given more than 24
hours before the inspection is scheduled to be conducted, except
in apparent imminent danger situations and in other unusual circumstances.
§4.07 Conduct of Inspections.
(a) Subject to the provisions of section 4.02, inspections shall
take place at such times and in such places of employment as the
General Counsel may direct. At the beginning of an inspection, the
General Counsel's designee shall present his or her credentials
to the operator of the facility or the management employee in charge
at the place of employment to be inspected; explain the nature and
purpose of the inspection; and indicate generally the scope of the
inspection and the records specified in section 4.02 which he or
she wishes to review. However, such designation of records shall
not preclude access to additional records specified in section 4.02.
(b) The General Counsel's designee shall have authority to take
environmental samples and to take or obtain photographs related
to the purpose of the inspection, employ other reasonable investigative
techniques, and question privately, any employing office, operator,
agent or employee of a covered facility. As used herein, the term
"employ other reasonable investigative techniques" includes,
but is not limited to, the use of devices to measure employee exposures
and the attachment of personal sampling equipment such as dosimeters,
pumps, badges and other similar devices to employees in order to
monitor their exposures.
(c) In taking photographs and samples, the General Counsel's designees
shall take reasonable precautions to insure that such actions with
flash, spark-producing, or other equipment would not be hazardous.
The General Counsel's designees shall comply with all employing
office safety and health rules and practices at the workplace or
location being inspected, and they shall wear and use appropriate
protective clothing and equipment.
(d) The conduct of inspections shall be such as to preclude unreasonable
disruption of the operations of the employing office.
(e) At the conclusion of an inspection, the General Counsel's designee
shall confer with the employing office or its representative and
informally advise it of any apparent safety or health violations
disclosed by the inspection. During such conference, the employing
office shall be afforded an opportunity to bring to the attention
of the General Counsel's designee any pertinent information regarding
conditions in the workplace.
(f) Inspections shall be conducted in accordance with the requirements
of this subpart.
(g) Trade Secrets.
(1) At the commencement of an inspection, the employing office may
identify areas in the establishment which contain or which might
reveal a trade secret as referred to in section 15 of the OSHAct
and section 1905 of title 18 of the United States Code. If the General
Counsel's designee has no clear reason to question such identification,
information contained in such areas, including all negatives and
prints of photographs, and environmental samples, shall be labeled
"confidential-trade secret" and shall not be disclosed
by the General Counsel and/or his designees, except that such information
may be disclosed to other officers or employees concerned with carrying
out section 215 of the CAA or when relevant in any proceeding under
section 215. In any such proceeding the Hearing Officer or the Board
shall issue such orders as may be appropriate to protect the confidentiality
of trade secrets.
(2) Upon the request of an employing office, any authorized representative
of employees under section 4.08 in an area containing trade secrets
shall be an employee in that area or an employee authorized by the
employing office to enter that area. Where there is no such representative
or employee, the General Counsel's designee shall consult with a
reasonable number of employees who work in that area concerning
matters of safety and health.
§4.08 Representatives of Employing Offices and Employees.
(a) The General Counsel's designee shall be in charge of inspections
and questioning of persons. A representative of the employing office
and a representative authorized by its employees shall be given
an opportunity to accompany the General Counsel's designee during
the physical inspection of any workplace for the purpose of aiding
such inspection. The General Counsel's designee may permit additional
employing office representatives and additional representatives
authorized by employees to accompany the designee where he or she
determines that such additional representatives will further aid
the inspection. A different employing office and employee representative
may accompany the General Counsel's designee during each different
phase of an inspection if this will not interfere with the conduct
of the inspection.
(b) The General Counsel's designee shall have authority to resolve
all disputes as to who is the representative authorized by the employing
office and employees for the purpose of this section. If there is
no authorized representative of employees, or if the General Counsel's
designee is unable to determine with reasonable certainty who is
such representative, he or she shall consult with a reasonable number
of employees concerning matters of safety and health in the workplace.
(c) The representative(s) authorized by employees shall be an employee(s)
of the employing office. However, if in the judgment of the General
Counsel's designee, good cause has been shown why accompaniment
by a third party who is not an employee of the employing office
(such as an industrial hygienist or a safety engineer) is reasonably
necessary to the conduct of an effective and thorough physical inspection
of the workplace, such third party may accompany the General Counsel's
designee during the inspection.
(d) The General Counsel's designee may deny the right of accompaniment
under this section to any person whose conduct interferes with a
fair and orderly inspection. With regard to information classified
by an agency of the U.S. Government (and/or by any congressional
committee or other authorized entity within the Legislative Branch)
in the interest of national security, only persons authorized to
have access to such information may accompany the General Counsel's
designee in areas containing such information.
§4.09 Consultation with Employees.
The General Counsel's designee may consult with employees concerning
matters of occupational safety and health to the extent he or she
deems necessary for the conduct of an effective and thorough inspection.
During the course of an inspection, any employee shall be afforded
an opportunity to bring any violation of section 215 of the CAA
which he or she has reason to believe exists in the workplace to
the attention of the General Counsel's designee.
§4.10 Inspection Not Warranted; Informal Review.
(a) If the General Counsel's designee determines that an inspection
is not warranted because there are no reasonable grounds to believe
that a violation or danger exists with respect to a notice of violation
under section 4.03(a), he or she shall notify the party giving the
notice in writing of such determination. The complaining party may
obtain review of such determination by submitting a written statement
of position with the General Counsel and, at the same time, providing
the employing office with a copy of such statement by certified
mail. The employing office may submit an opposing written statement
of position with the General Counsel and, at the same time, provide
the complaining party with a copy of such statement by certified
mail. Upon the request of the complaining party or the employing
office, the General Counsel, at his or her discretion, may hold
an informal conference in which the complaining party and the employing
office may orally present their views. After considering all written
and oral views presented, the General Counsel shall affirm, modify,
or reverse the designee's determination and furnish the complaining
party and the employing office with written notification of this
decision and the reasons therefor. The decision of the General Counsel
shall be final and not reviewable.
(b) If the General Counsel's designee determines that an inspection
is not warranted because the requirements of section 4.03(a)(1)
have not been met, he or she shall notify the complaining party
in writing of such determination. Such determination shall be without
prejudice to the filing of a new notice of alleged violation meeting
the requirements of section 4.03(a)(1).
§4.11 Citations.
(a) If, on the basis of the inspection, the General Counsel believes
that a violation of any requirement of section 215 of the CAA, or
of any standard, rule or order promulgated pursuant to section 215
of the CAA, has occurred, he or she shall issue to the employing
office responsible for correction of the violation, as determined
under section 1.106 of the Board's regulations implementing section
215 of the CAA, either a citation or a notice of de minimis violations
that have no direct or immediate relationship to safety or health.
An appropriate citation or notice of de minimis violations shall
be issued even though, after being informed of an alleged violation
by the General Counsel, the employing office immediately abates,
or initiates steps to abate, such alleged violation. Any citation
shall be issued with reasonable promptness after termination of
the inspection. No citation may be issued under this section after
the expiration of 6 months following the occurrence of any alleged
violation.
(b) Any citation shall describe with particularity the nature of
the alleged violation, including a reference to the provision(s)
of the CAA, standard, rule, regulation, or order alleged to have
been violated. Any citation shall also fix a reasonable time or
times for the abatement of the alleged violation.
(c) If a citation or notice of de minimis violations is issued for
a violation alleged in a request for inspection under section 4.03(a)(1),
or a notification of violation under section 4.03(a)(3), a copy
of the citation or notice of de minimis violations shall also be
sent to the employee or representative of employees who made such
request or notification.
(d) After an inspection, if the General Counsel determines that
a citation is not warranted with respect to a danger or violation
alleged to exist in a request for inspection under section 4.03(a)(1)
or a notification of violation under section 4.03(a)(3), the informal
review procedures prescribed in 4.15 shall be applicable. After
considering all views presented, the General Counsel shall affirm
the previous determination, order a reinspection, or issue a citation
if he or she believes that the inspection disclosed a violation.
The General Counsel shall furnish the party that submitted the notice
and the employing office with written notification of the determination
and the reasons therefor. The determination of the General Counsel
shall be final and not reviewable.
(e) Every citation shall state that the issuance of a citation does
not constitute a finding that a violation of section 215 has occurred.
(f) No citation may be issued to an employing office because of
a rescue activity undertaken by an employee of that employing office
with respect to an individual in imminent danger unless:
(1)(i) such employee is designated or assigned by the employing
office to have responsibility to perform or assist in rescue operations,
and
(ii) the employing office fails to provide protection of the safety
and health of such employee, including failing to provide appropriate
training and rescue equipment; or
(2)(i) such employee is directed by the employing office to perform
rescue activities in the course of carrying out the employee's job
duties, and
(ii) the employing office fails to provide protection of the safety
and health of such employee, including failing to provide appropriate
training and rescue equipment; or
(3)(i) such employee is employed in a workplace that requires the
employee to carry out duties that are directly related to a workplace
operation where the likelihood of life-threatening accidents is
foreseeable, such as a workplace operation where employees are located
in confined spaces or trenches, handle hazardous waste, respond
to emergency situations, perform excavations, or perform construction
over water; and
(ii) such employee has not been designated or assigned to perform
or assist in rescue operations and voluntarily elects to rescue
such an individual; and(iii) the employing office has failed to
instruct employees not designated or assigned to perform or assist
in rescue operations of the arrangements for rescue, not to attempt
rescue, and of the hazards of attempting rescue without adequate
training or equipment.
(4) For the purpose of this policy, the term "imminent danger"
means the existence of any condition or practice that could reasonably
be expected to cause death or serious physical harm before such
condition or practice can be abated.
§4.12 Imminent Danger.
Whenever and as soon as a designee of the General Counsel concludes
on the basis of an inspection that conditions or practices exist
in any place of employment which could reasonably be expected to
cause death or serious physical harm immediately or before the imminence
of such danger can be eliminated through the enforcement procedures
otherwise provided for by section 215(c), he or she shall inform
the affected employees and employing offices of the danger and that
he or she is recommending the filing of a petition to restrain such
conditions or practices and for other appropriate relief in accordance
with section 13(a) of the OSHAct, as applied by section 215(b) of
the CAA. Appropriate citations may be issued with respect to an
imminent danger even though, after being informed of such danger
by the General Counsel's designee, the employing office immediately
eliminates the imminence of the danger and initiates steps to abate
such danger.
§4.13 Posting of Citations.
(a) Upon receipt of any citation under section 215 of the CAA, the
employing office shall immediately post such citation, or a copy
thereof, unedited, at or near each place an alleged violation referred
to in the citation occurred, except as provided below. Where, because
of the nature of the employing office's operations, it is not practicable
to post the citation at or near each place of alleged violation,
such citation shall be posted, unedited, in a prominent place where
it will be readily observable by all affected employees. For example,
where employing offices are engaged in activities which are physically
dispersed, the citation may be posted at the location to which employees
report each day. Where employees do not primarily work at or report
to a single location, the citation may be posted at the location
from which the employees operate to carry out their activities.
The employing office shall take steps to ensure that the citation
is not altered, defaced, or covered by other material. Notices of
de minimis violations need not be posted.
(b) Each citation, or a copy thereof, shall remain posted until
the violation has been abated, or for 3 working days, whichever
is later. The pendency of any proceedings regarding the citation
shall not affect its posting responsibility under this section unless
and until the Board issues a final order vacating the citation.
(c) An employing office to whom a citation has been issued may post
a notice in the same location where such citation is posted indicating
that the citation is being contested before the Board, and such
notice may explain the reasons for such contest. The employing office
may also indicate that specified steps have been taken to abate
the violation.
§4.14 Failure to Correct a Violation for Which a Citation
Has Been Issued; Notice of Failure to Correct Violation; Complaint.
(a) If the General Counsel determines that an employing office has
failed to correct an alleged violation for which a citation has
been issued within the period permitted for its correction, he or
she may issue a notification to the employing office of such failure
prior to filing a complaint against the employing office under section
215(c)(3) of the CAA. Such notification shall fix a reasonable time
or times for abatement of the alleged violation for which the citation
was issued and shall be posted in accordance with section 4.13 of
these rules. Nothing in these rules shall require the General Counsel
to issue such a notification as a prerequisite to filing a complaint
under section 215(c)(3) of the CAA.
(b) If after issuing a citation or notification, the General Counsel
believes that a violation has not been corrected, the General Counsel
may file a complaint with the Office against the employing office
named in the citation or notification pursuant to section 215(c)(3)
of the CAA. The complaint shall be submitted to a Hearing Officer
for decision pursuant to subsections (b) through (h) of section
405, subject to review by the Board pursuant to section 406. The
procedures of sections 7.01 through 7.16 of these rules govern complaint
proceedings under this section.
§4.15 Informal Conferences.
At the request of an affected employing office, employee, or representative
of employees, the General Counsel may hold an informal conference
for the purpose of discussing any issues raised by an inspection,
citation, or notice issued by the General Counsel. Any settlement
entered into by the parties at such conference shall be subject
to the approval of the Executive Director under section 414 of the
CAA and section 9.05 of these rules. If the conference is requested
by the employing office, an affected employee or the employee's
representative shall be afforded an opportunity to participate,
at the discretion of the General Counsel. If the conference is requested
by an employee or representative of employees, the employing office
shall be afforded an opportunity to participate, at the discretion
of the General Counsel. Any party may be represented by counsel
at such conference.
Rules of Practice for Variances, Limitations, Variations, Tolerances,
and Exemptions
§4.20 Purpose and Scope.
Sections 4.20 through 4.31 contain rules of practice for administrative
proceedings to grant variances and other relief under sections 6(b)(6)(A)
and 6(d) of the Williams-Steiger Occupational Safety and Health
Act of 1970, as applied by section 215(c)(4) of the CAA.
§4.21 Definitions.
As used in sections 4.20 through 4.31, unless the context clearly
requires otherwise --
(a) OSHAct means the Williams-Steiger Occupational Safety and Health
Act of 1970, as applied to covered employees and employing offices
under section 215 of the CAA.
(b) Party means a person admitted to participate in a hearing conducted
in accordance with this subpart. An applicant for relief and any
affected employee shall be entitled to be named parties. The General
Counsel shall be deemed a party without the necessity of being named.
(c) Affected employee means an employee who would be affected by
the grant or denial of a variance, limitation, variation, tolerance,
or exemption, or any one of the employee's authorized representatives,
such as the employee's collective bargaining agent.
§4.22 Effect of Variances.
All variances granted pursuant to this part shall have only future
effect. In its discretion, the Board may decline to entertain an
application for a variance on a subject or issue concerning which
a citation has been issued to the employing office involved and
a proceeding on the citation or a related issue concerning a proposed
period of abatement is pending before the General Counsel, a Hearing
Officer, or the Board until the completion of such proceeding.
§4.23 Public Notice of a Granted Variance, Limitation, Variation,
Tolerance, or Exemption.
The Board will transmit every final action granting a variance,
limitation, variation, tolerance, or exemption under this part to
the Speaker of the House of Representatives and the President pro
tempore of the Senate with a request that such final action be published
in the Congressional Record. Every such final action shall specify
the alternative to the standard involved which the particular variance
permits.
§4.24 Form of Documents.
Any applications for variances and other papers which are filed
in proceedings under sections 4.20 through 4.31 of these rules shall
be written or typed. All applications for variances and other papers
filed in variance proceedings shall be signed by the applying employing
office, by its attorney or other authorized representative, and
shall contain the information required by sections 4.25 or 4.26
of these rules, as applicable.
§4.25 Applications for Temporary Variances and Other Relief.
(a) Application for Variance. Any employing office, or class of
employing offices, desiring a variance from a standard, or portion
thereof, authorized by section 6(b)(6)(A) of the OSHAct, as applied
by section 215 of the CAA, may file a written application containing
the information specified in paragraph (b) of this section with
the Board. Pursuant to section 215(c)(4) of the CAA, the Board shall
refer any matter appropriate for hearing to a Hearing Officer under
subsections (b) through (h) of section 405, subject to review by
the Board pursuant to section 406. The procedures set forth at sections
7.01 through 7.16 of these rules shall govern hearings under this
subpart.
(b) Contents. An application filed pursuant to paragraph (a) of
this section shall include:
(1) the name and address of the applicant;
(2) the address of the place or places of employment involved;
(3) a specification of the standard or portion thereof from which
the applicant seeks a variance;
(4) a representation by the applicant, supported by representations
from qualified persons having first-hand knowledge of the facts
represented, that the applicant is unable to comply with the standard
or portion thereof by its effective date and a detailed statement
of the reasons therefor;
(5) a statement of the steps the applicant has taken and will take,
with specific dates where appropriate, to protect employees against
the hazard covered by the standard;
(6) a statement of when the applicant expects to be able to comply
with the standard and of what steps the applicant has taken and
will take, with specific dates where appropriate, to come into compliance
with the standard;
(7) a statement of the facts the applicant would show to establish
that
(i) the applicant is unable to comply with a standard by its effective
date because of unavailability of professional or technical personnel
or of materials and equipment needed to come into compliance with
the standard or because necessary construction or alteration of
facilities cannot be completed by the effective date;
(ii) the applicant is taking all available steps to safeguard its
employees against the hazards covered by the standard; and
(iii) the applicant has an effective program for coming into compliance
with the standard as quickly as practicable;
(8) a statement that the applicant has informed its affected employees
of the application by giving a copy thereof to their authorized
representative, posting a statement, giving a summary of the application
and specifying where a copy may be examined, at the place or places
where notices to employees are normally posted, and by other appropriate
means; and
(9) a description of how affected employees have been informed of
the application and of their right to petition the Board for a hearing.
(c) Interim Order.
(1) Application. An application may also be made for an interim
order to be effective until a decision is rendered on the application
for the variance filed previously or concurrently. An application
for an interim order may include statements of fact and arguments
as to why the order should be granted. The Hearing Officer to whom
the Board has referred the application may rule ex parte upon the
application.
(2) Notice of Denial of Application. If an application filed pursuant
to paragraph (c)(1) of this section is denied, the applicant shall
be given prompt notice of the denial, which shall include, or be
accompanied by, a brief statement of the grounds therefor.
(3) Notice of the Grant of an Interim Order. If an interim order
is granted, a copy of the order shall be served upon the applicant
for the order and other parties and the terms of the order shall
be transmitted by the Board to the Speaker of the House of Representatives
and the President pro tempore of the Senate with a request that
the order be published in the Congressional Record. It shall be
a condition of the order that the affected employing office shall
give notice thereof to affected employees by the same means to be
used to inform them of an application for a variance.
§4.26 Applications for Permanent Variances and Other Relief.
(a) Application for Variance. Any employing office, or class of
employing offices, desiring a variance authorized by section 6(d)
of the OSHAct, as applied by section 215 of the CAA, may file a
written application containing the information specified in paragraph
(b) of this section, with the Board. Pursuant to section 215(c)(4)
of the CAA, the Board shall refer any matter appropriate for hearing
to a Hearing Officer under subsections (b) through (h) of section
405, subject to review by the Board pursuant to section 406.
(b) Contents. An application filed pursuant to paragraph (a) of
this section shall include:
(1) the name and address of the applicant;
(2) the address of the place or places of employment involved;
(3) a description of the conditions, practices, means, methods,
operations, or processes used or proposed to be used by the applicant;
(4) a statement showing how the conditions, practices, means, methods,
operations, or processes used or proposed to be used would provide
employment and places of employment to employees which are as safe
and healthful as those required by the standard from which a variance
is sought;
(5) a certification that the applicant has informed its employees
of the application by:
(i) giving a copy thereof to their authorized representative;
(ii) posting a statement giving a summary of the application and
specifying where a copy may be examined, at the place or places
where notices to employees are normally posted (or in lieu of such
summary, the posting of the application itself); and
(iii) by other appropriate means; and
(6) a description of how employees have been informed of the application
and of their right to petition the Board for a hearing.
(c) Interim Order.
(1) Application. An application may also be made for an interim
order to be effective until a decision is rendered on the application
for the variance filed previously or concurrently. An application
for an interim order may include statements of fact and arguments
as to why the order should be granted. The Hearing Officer to whom
the Board has referred the application may rule ex parte upon the
application.
(2) Notice of Denial of Application. If an application filed pursuant
to paragraph (c)(1) of this section is denied, the applicant shall
be given prompt notice of the denial, which shall include, or be
accompanied by, a brief statement of the grounds therefor.
(3) Notice of the Grant of an Interim Order. If an interim order
is granted, a copy of the order shall be served upon the applicant
for the order and other parties, and the terms of the order shall
be transmitted by the Board to the Speaker of the House of Representatives
and the President pro tempore of the Senate with a request that
the order be published in the Congressional Record. It shall be
a condition of the order that the affected employing office shall
give notice thereof to affected employees by the same means to be
used to inform them of an application for a variance.
§4.27 Modification or Revocation of Orders.
(a) Modification or Revocation. An affected employing office or
an affected employee may apply in writing to the Board for a modification
or revocation of an order issued under section 6(b)(6)(A), or 6(d)
of the OSHAct, as applied by section 215 of the CAA. The application
shall contain:
(1) the name and address of the applicant;
(2) a description of the relief which is sought;
(3) a statement setting forth with particularity the grounds for
relief;
(4) if the applicant is an employing office, a certification that
the applicant has informed its affected employees of the application
by:
(i) giving a copy thereof to their authorized representative;
(ii) posting at the place or places where notices to employees are
normally posted, a statement giving a summary of the application
and specifying where a copy of the full application may be examined
(or, in lieu of the summary, posting the application itself); and
(iii) other appropriate means;
(5) if the applicant is an affected employee, a certification that
a copy of the application has been furnished to the employing office;
and
(6) any request for a hearing, as provided in this part.
(b) Renewal. Any final order issued under section 6(b)(6)(A) of
the OSHAct, as applied by section 215 of the CAA, may be renewed
or extended as permitted by the applicable section and in the manner
prescribed for its issuance.
§4.28 Action on Applications.
(a) Defective Applications.
(1) If an application filed pursuant to sections 4.25(a), 4.26(a),
or 4.27 does not conform to the applicable section, the Hearing
Officer or the Board, as applicable, may deny the application.
(2) Prompt notice of the denial of an application shall be given
to the applicant.
(3) A notice of denial shall include, or be accompanied by, a brief
statement of the grounds for the denial.
(4) A denial of an application pursuant to this paragraph shall
be without prejudice to the filing of another application.
(b) Adequate Applications.
(1) If an application has not been denied pursuant to paragraph
(a) of this section, the Office shall cause to be published a notice
of the filing of the application, which the Board will transmit
to the Speaker of the House of Representatives and the President
pro tempore of the Senate with a request that the order be published
in the Congressional Record.
(2) A notice of the filing of an application shall include:
(i) the terms, or an accurate summary of the application;
(ii) a reference to the section of the OSHAct applied by section
215 of the CAA under which the application has been filed;
(iii) an invitation to interested persons to submit within a stated
period of time written data, views, or arguments regarding the application;
and
(iv) information to affected employing offices, employees, and appropriate
authority having jurisdiction over employment or places of employment
covered in the application of any right to request a hearing on
the application.
§4.29 Consolidation of Proceedings.
On the motion of the Hearing Officer or the Board or that of any
party, the Hearing Officer or the Board may consolidate or contemporaneously
consider two or more proceedings which involve the same or closely
related issues.
§4.30 Consent Findings and Rules or Orders.
(a) General. At any time before the reception of evidence in any
hearing, or during any hearing, a reasonable opportunity may be
afforded to permit negotiation by the parties of an agreement containing
consent findings and a rule or order disposing of the whole or any
part of the proceeding. The allowance of such opportunity and the
duration thereof shall be in the discretion of the Hearing Officer,
after consideration of the nature of the proceeding, the requirements
of the public interest, the representations of the parties, and
the probability of an agreement which will result in a just disposition
of the issues involved.
(b) Contents. Any agreement containing consent findings and rule
or order disposing of a proceeding shall also provide:
(1) that the rule or order shall have the same force and effect
as if made after a full hearing;
(2) that the entire record on which any rule or order may be based
shall consist solely of the application and the agreement;
(3) a waiver of any further procedural steps before the Hearing
Officer and the Board; and
(4) a waiver of any right to challenge or contest the validity of
the findings and of the rule or order made in accordance with the
agreement.
(c) Submission. On or before the expiration of the time granted
for negotiations, the parties or their counsel may:
(1) submit the proposed agreement to the Hearing Officer for his
or her consideration; or
(2) inform the Hearing Officer that agreement cannot be reached.
(d) Disposition. In the event an agreement containing consent findings
and rule or order is submitted within the time allowed therefor,
the Hearing Officer may accept such agreement by issuing his or
her decision based upon the agreed findings.
§4.31 Order of Proceedings and Burden of Proof.
(a) Order of Proceeding. Except as may be ordered otherwise by the
Hearing Officer, the party applicant for relief shall proceed first
at a hearing.
(b) Burden of Proof. The party applicant shall have the burden of
proof.
Subpart E -- Complaints
§5.01 Complaints
§5.02 Appointment of the Hearing Officer
§5.03 Dismissal, Summary Judgment, and Withdrawal of Complaint
§5.04 Confidentiality
§5.01 Complaints.
(a) Who May File.
(1) An employee who has completed mediation under section 2.04 may
timely file a complaint with the Office alleging any violation of
sections 201 through 207 of the Act.
(2) The General Counsel may file a complaint alleging a violation
of section 210, 215 or 220 of the Act.
(b) When to File.
(1) A complaint may be filed by an employee no sooner than 30 days
after the date of receipt of the notice under section 2.04(i), but
no later than 90 days after receipt of that notice.
(2) A complaint may be filed by the General Counsel
(i) after the investigation of a charge filed under section 210
or 220 of the Act, or
(ii) after the issuance of a citation or notification under section
215 of the Act.
(c) Form and Contents.
(1) Complaints Filed by Covered Employees. A complaint shall be
written or typed on a complaint form available from the Office.
All complaints shall be signed by the covered employee, or his or
her representative, and shall contain the following information:
(i) the name, mailing address, and telephone number(s) of the complainant;
(ii) the name, address and telephone number of the employing office
against which the complaint is brought;
(iii) the name(s) and title(s) of the individual(s) involved in
the conduct that the employee claims is a violation of the Act;
(iv) a description of the conduct being challenged, including the
date(s) of the conduct;
(v) a brief description of why the complainant believes the challenged
conduct is a violation of the Act and the section(s) of the Act
involved;
(vi) a statement of the relief or remedy sought; and
(vii) the name, address, and telephone number of the representative,
if any, who will act on behalf of the complainant.
(2) Complaints Filed by the General Counsel. A complaint filed by
the General Counsel shall be in writing, signed by the General Counsel
or his designee and shall contain the following information:
(i) the name, address and telephone number of, as applicable, (A)
each entity responsible for correction of an alleged violation of
section 210(b), (B) each employing office alleged to have violated
section 215, or (C) each employing office and/or labor organization
alleged to have violated section 220, against which complaint is
brought;
(ii) notice of the charge filed alleging a violation of section
210 or 220 and/or issuance of a citation or notification under section
215;
(iii) a description of the acts and conduct that are alleged to
be violations of the Act, including all relevant dates and places
and the names and titles of the responsible individuals; and
(iv) a statement of the relief or remedy sought.
(d) Amendments. Amendments to the complaint may be permitted by
the Office or, after assignment, by a Hearing Officer, on the following
conditions: that all parties to the proceeding have adequate notice
to prepare to meet the new allegations; that the amendments, as
appropriate, relate to the violations for which the employee has
completed counseling and mediation, or relate to the charge(s) investigated
and/or the citation or notification issued by the General Counsel;
and that permitting such amendments will not unduly prejudice the
rights of the employing office, the labor organization, or other
parties, unduly delay the completion of the hearing or otherwise
interfere with or impede the proceedings.
(e) Service of Complaint. Upon receipt of a complaint or an amended
complaint, the Office shall serve the respondent, or its designated
representative, by hand delivery or certified mail, with a copy
of the complaint or amended complaint and a copy of these rules.
The Office shall include a service list containing the names and
addresses of the parties and their designated representatives.
(f) Answer. Within 15 days after receipt of a copy of a complaint
or an amended complaint, the respondent shall file an answer with
the Office and serve one copy on the complainant. The answer shall
contain a statement of the position of the respondent on each of
the issues raised in the complaint or amended complaint, including
admissions, denials, or explanations of each allegation made in
the complaint and any affirmative defenses or other defenses to
the complaint. Failure to file an answer or to raise a claim or
defense as to any allegation(s) shall constitute an admission of
such allegation(s). Affirmative defenses not raised in an answer
that could have reasonably been anticipated based on the facts alleged
in the complaint shall be deemed waived. A respondent's motion for
leave to amend an answer to interpose a denial or affirmative defense
will ordinarily be granted unless to do so would unduly prejudice
the rights of the other party or unduly delay or otherwise interfere
with or impede the proceedings.
§5.02 Appointment of the Hearing Officer.
Upon the filing of a complaint, the Executive Director will appoint
an independent Hearing Officer, who shall have the authority specified
in sections 5.03 and 7.01(b) below. The Hearing Officer shall not
be the counselor involved in or the neutral who mediated the matter
under sections 2.03 and 2.04 of these rules.
§5.03 Dismissal, Summary Judgment and Withdrawal of Complaints.
(a) A Hearing Officer may, after notice and an opportunity to respond,
dismiss any claim that the Hearing Officer finds to be frivolous
or that fails to state a claim upon which relief may be granted,
including, but not limited to, claims that were not advanced in
counseling or mediation.
(b) A Hearing Officer may, after notice and an opportunity to respond,
dismiss a complaint because it fails to comply with the applicable
time limits or other requirements under the Act or these rules.
(c) If the General Counsel or any complainant fails to proceed with
an action, the Hearing Officer may dismiss the complaint with prejudice.
(d) Summary Judgment. A Hearing Officer may, after notice and an
opportunity for the parties to address the question of summary judgment,
issue summary judgment on some or all of the complaint.
(e) Appeal. A final decision by the Hearing Officer made under section
5.03(a)-(d) or 7.16 of these Rules may be subject to appeal before
the Board if the aggrieved party files a timely petition for review
under section 8.01. A final decision under section 5.03(a)-(d) which
does not resolve all of the claims or issues in the case(s) before
the Hearing Officer may not be appealed to the Board in advance
of a final decision entered under section 7.16 of these rules, except
as authorized pursuant to section 7.13 of these Rules.
(f) Withdrawal of Complaint by Complainant. At any time a complainant
may withdraw his or her own complaint by filing a notice with the
Office for transmittal to the Hearing Officer and by serving a copy
on the employing office or representative. Any such withdrawal must
be approved by the Hearing Officer.
(g) Withdrawal of Complaint by the General Counsel. At any time
prior to the opening of the hearing the General Counsel may withdraw
his complaint by filing a notice with the Executive Director and
the Hearing Officer and by serving a copy on the respondent. After
opening of the hearing, any such withdrawal must be approved by
the Hearing Officer.
§5.04 Confidentiality.
Pursuant to section 416(c) of the Act, except as provided in sub-sections
416(d), (e) and (f), all proceedings and deliberations of Hearing
Officers and the Board, including any related records, shall be
confidential. Section 416(c) does not apply to proceedings under
section 215 of the Act, but does apply to the deliberations of Hearing
Officers and the Board under section 215. A violation of the confidentiality
requirements of the Act and these rules could result in the imposition
of sanctions. Nothing in these rules shall prevent the Executive
Director from reporting statistical information to the Senate and
House of Representatives, so long as that statistical information
does not reveal the identity of the employees involved or of employing
offices that are the subject of a matter. See also sections 1.06,
1.07 and 7.12 of these rules.
Subpart F -- Discovery and Subpoenas
§6.01 Discovery
§6.02 Requests for Subpoenas
§6.03 Service
§6.04 Proof of Service
§6.05 Motion to Quash
§6.06 Enforcement
§6.01 Discovery.
(a) Explanation. Discovery is the process by which a party may obtain
from another person, including a party, information, not privileged,
reasonably calculated to lead to the discovery of admissible evidence,
for the purpose of assisting that party in developing, preparing
and presenting its case at the hearing. This provision shall not
be construed to permit any discovery, oral or written, to be taken
from employees of the Office or the counselor(s), or the neutral(s)
involved in counseling and mediation.
(b) Office Policy Regarding Discovery. It is the policy of the Office
to encourage the early and voluntary exchange of relevant and material
nonprivileged information between the parties, including the names
and addresses of witnesses and copies of relevant and material documents,
and to encourage Hearing Officers to develop procedures which allow
for the greatest exchange of relevant and material information and
which minimize the need for parties to formally request such information.
(c) Discovery Availability. Pursuant to section 405(e) of the Act,
the Hearing Officer in his or her discretion may permit reasonable
prehearing discovery. In exercising that discretion, the Hearing
Officer may be guided by the Federal Rules of Civil Procedure.
(1) The Hearing Officer may authorize discovery by one or more of
the following methods: depositions upon oral examination or written
questions; written interrogatories; production of documents or things
or permission to enter upon land or other property for inspection
or other purposes; physical and mental examinations; and requests
for admission.
(2) The Hearing Officer may make any order setting forth the forms
and extent of discovery, including orders limiting the number of
depositions, interrogatories, and requests for production of documents,
and may also limit the length of depositions.
(3) The Hearing Officer may issue any other order to prevent discovery
or disclosure of confidential or privileged materials or information,
as well as hearing or trial preparation materials and any other
information deemed not discoverable, or to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.
(d) Claims of Privilege. Whenever a party withholds information
otherwise discoverable under these rules by claiming that it is
privileged or confidential or subject to protection as hearing or
trial preparation materials, the party shall make the claim expressly
and shall describe the nature of the documents, communications or
things not produced or disclosed in a manner that, without revealing
the information itself privileged or protected, will enable other
parties to assess the applicability of the privilege or protection.
§6.02 Request for Subpoena.
(a) Authority to Issue Subpoenas. At the request of a party, a Hearing
Officer may issue subpoenas for the attendance and testimony of
witnesses and for the production of correspondence, books, papers,
documents, or other records. The attendance of witnesses and the
production of records may be required from any place within the
United States. However, no subpoena may be issued for the attendance
or testimony of an employee of the Office of Compliance.
(b) Request. A request for the issuance of a subpoena requiring
the attendance and testimony of witnesses or the production of documents
or other evidence under paragraph (a) above shall be submitted to
the Hearing Officer at least 15 days in advance of the date scheduled
for the commencement of the hearing. If the subpoena is sought as
part of the discovery process, the request shall be submitted to
the Hearing Officer at least 10 days in advance of the date set
for the attendance of the witness at a deposition or the production
of documents. The Hearing Officer may waive the time limits stated
above for good cause.
(c) Forms and Showing. Requests for subpoenas shall be submitted
in writing to the Hearing Officer and shall specify with particularity
the witness, correspondence, books, papers, documents, or other
records desired and shall be supported by a showing of general relevance
and reasonable scope.
(d) Rulings. The Hearing Officer shall promptly rule on the request.
§6.03 Service.
Subpoenas shall be served in the manner provided under rule 45(b)
of the Federal Rules of Civil Procedure. Service of a subpoena may
be made by any person who is over 18 years of age and not a party
to the proceeding.
§6.04 Proof of service.
When service of a subpoena is effected, the person serving the subpoena
shall certify the date and the manner of service. The party on whose
behalf the subpoena was issued shall file the server's certification
with the Hearing Officer.
§6.05 Motion to quash.
Any person against whom a subpoena is directed may file a motion
to quash or limit the subpoena setting forth the reasons why the
subpoena should not be complied with or why it should be limited
in scope. This motion shall be filed with the Hearing Officer before
the time specified in the subpoena for compliance and not later
than 10 days after service of the subpoena.
§6.06 Enforcement.
(a) Objections and Requests for Enforcement. If a person has been
served with a subpoena pursuant to section 6.03, but fails or refuses
to comply with its terms or otherwise objects to it, the party or
person objecting or the party seeking compliance may seek a ruling
from the Hearing Officer. The request for a ruling shall be submitted
in writing to the Hearing Officer. However, it may be made orally
on the record at the hearing at the Hearing Officer's discretion.
The party seeking compliance shall present the proof of service
and, except where the witness was required to appear before the
Hearing Officer, shall submit evidence, by affidavit or declaration,
of the failure or refusal to obey the subpoena.
(b) Ruling by Hearing Officer.
(1) The Hearing Officer shall promptly rule on the request for enforcement
and/or the objection(s).
(2) On request of the objecting witness or any party, the Hearing
Officer shall, or on the Hearing Officer's own initiative the Hearing
Officer may, refer the ruling to the Board for review.
(c) Review by the Board. The Board may overrule, modify, remand
or affirm the ruling of the Hearing Officer and in its discretion,
may direct the General Counsel to apply in the name of the Office
for an order from a United States district court to enforce the
subpoena.
(d) Application to an Appropriate Court; Civil Contempt. If a person
fails to comply with a subpoena, the Board may direct the General
Counsel to apply, in the name of the Office, to an appropriate United
States district court for an order requiring that person to appear
before the Hearing Officer to give testimony or produce records.
Any failure to obey a lawful order of the district court may be
held by such court to be a civil contempt thereof.
Subpart G -- Hearings
§7.01 The Hearing Officer
§7.02 Sanctions
§7.03 Disqualification of the Hearing Officer
§7.04 Motions and Prehearing Conference
§7.05 Scheduling the Hearing
§7.06 Consolidation and Joinder of Cases
§7.07 Conduct of Hearing; Disqualification of Representatives
§7.08 Transcript
§7.09 Admissibility of Evidence
§7.10 Stipulations
§7.11 Official Notice
§7.12 Confidentiality
§7.13 Immediate Board Review of a Ruling by a Hearing Officer
§7.14 Posthearing Briefs
§7.15 Closing the record
§7.16 Hearing Officer Decisions; Entry in Records of the Office
§7.01 The Hearing Officer.
(a) Exercise of Authority. The Hearing Officer may exercise authority
as provided in paragraph (b) of this section upon his or her own
initiative or upon the motion of a party, as appropriate.
(b) Authority. Hearing Officers shall conduct fair and impartial
hearings and take all necessary action to avoid undue delay in the
disposition of all proceedings. They shall have all powers necessary
to that end unless otherwise limited by law, including, but not
limited to, the authority to:
(1) administer oaths and affirmations;
(2) rule on motions to disqualify designated representatives;
(3) issue subpoenas in accordance with section 6.02;
(4) rule upon offers of proof and receive relevant evidence;
(5) rule upon discovery issues as appropriate under sections 6.01
to 6.06;
(6) hold prehearing conferences for the settlement and simplification
of issues;
(7) convene a hearing as appropriate, regulate the course of the
hearing, and maintain decorum at and exclude from the hearing any
person who disrupts, or threatens to disrupt, that decorum;
(8) exclude from the hearing any person, except any complainant,
any party, the attorney or representative of any complainant or
party, or any witness while testifying;
(9) rule on all motions, witness and exhibit lists and proposed
findings, including motions for summary judgment;
(10) require the filing of briefs, memoranda of law and the presentation
of oral argument with respect to any question of fact or law;
(11) order the production of evidence and the appearance of witnesses;
(12) impose sanctions as provided under section 7.02 of these rules;
(13) file decisions on the issues presented at the hearing;
(14) maintain the confidentiality of proceedings; and
(15) waive or modify any procedural requirements of subparts F and
G of these rules so long as permitted by the Act.
§7.02 Sanctions.
(a) The Hearing Officer may impose sanctions on a party’s
representative necessary to regulate the course of the hearing.
(b) The Hearing Officer may impose sanctions upon the parties under,
but not limited to, the circumstances set forth in this section.
(1) Failure to Comply with an Order. When a party fails to comply
with an order (including an order for the taking of a deposition,
for the production of evidence within the party's control, or for
production of witnesses), the Hearing Officer may:
(a) draw an inference in favor of the requesting party on the issue
related to the information sought;
(b) stay further proceedings until the order is obeyed;
(c) prohibit the party failing to comply with such order from introducing
evidence concerning, or otherwise relying upon, evidence relating
to the information sought;
(d) permit the requesting party to introduce secondary evidence
concerning the information sought;
(e) strike any part of the complaint, briefs, answer, or other submissions
of the party failing to comply with the order;
(f) direct judgment against the non-complying party in whole or
in part; or
(g) order that the non-complying party, or the representative advising
that party, pay all or part of the attorney's fees and reasonable
expenses of the other party or parties or of the Office, caused
by such non-compliance, unless the Hearing Officer or the Board
finds that the failure was substantially justified or that other
circumstances make an award of attorney's fees and/or expenses unjust.
(2) Failure to Prosecute or Defend. If a party fails to prosecute
or defend a position, the Hearing Officer may dismiss the action
with prejudice or rule for the complainant.
(3) Failure to Make Timely Filing. The Hearing Officer may refuse
to consider any request, motion or other action that is not filed
in a timely fashion in compliance with this Part.
§7.03 Disqualification of the Hearing Officer.
(a) In the event that a Hearing Officer considers himself or herself
disqualified, either because of personal bias or of an interest
in the case or for some other disqualifying reason, he or she shall
withdraw from the case, stating in writing or on the record the
reasons for his or her withdrawal, and shall immediately notify
the Office of the withdrawal.
(b) Any party may file a motion requesting that a Hearing Officer
withdraw on the basis of personal bias or of an interest in the
case or for some other disqualifying reason. This motion shall specifically
set forth the reasons supporting the request and be filed as soon
as the party has reason to believe that there is a basis for disqualification.
(c) The Hearing Officer shall promptly rule on the withdrawal motion.
If the motion is granted, the Executive Director will appoint another
Hearing Officer within 5 days. Any objection to the ruling of the
Hearing Officer on the withdrawal motion shall not be deemed waived
by further participation in the hearing and may be the basis for
an appeal to the Board from the decision of the Hearing Officer
under section 8.01 of these rules. Such objection will not stay
the conduct of the hearing.
§7.04 Motions and Prehearing Conference.
(a) Motions. When a case is before a Hearing Officer, motions of
the parties shall be filed with the Hearing Officer and shall be
in writing except for oral motions made on the record during the
hearing. All written motions and any responses to them shall include
a proposed order, where applicable. Only with the Hearing Officer's
advance approval may either party file additional responses to the
motion or to the response to the motion. Motions for extension of
time will be granted only for good cause shown.
(b) Scheduling of the Prehearing Conference. Within 7 days after
assignment, the Hearing Officer shall serve on the parties and their
designated representatives written notice setting forth the time,
date, and place of the prehearing conference.
(c) Prehearing Conference Memoranda. The Hearing Officer may order
each party to prepare a prehearing conference memorandum. That memorandum
may include:
(1) the major factual contentions and legal issues that the party
intends to raise at the hearing in short, successive, and numbered
paragraphs, along with any proposed stipulations of fact or law;
(2) an estimate of the time necessary for presentation of the party's
case;
(3) the specific relief, including the amount of monetary relief,
that is being or will be requested;
(4) the names of potential witnesses for the party's case, except
for potential rebuttal witnesses, and the purpose for which they
will be called and a list of documents that the party is seeking
from the opposing party, and, if discovery was permitted, the status
of any pending request for discovery. (It is not necessary to list
each document requested. Instead, the party may refer to the request
for discovery.)
(5) a brief description of any other unresolved issues.
(d) At the prehearing conference, the Hearing Officer may discuss
the subjects specified in paragraph (c) above and the manner in
which the hearing will be conducted and proceed. In addition the
Hearing Officer may explore settlement possibilities and consider
how the factual and legal issues might be simplified and any other
issues that might expedite the resolution of the dispute. The Hearing
Officer shall issue an order, which recites the action taken at
the conference and the agreements made by the parties as to any
of the matters considered and which limits the issues to those not
disposed of by admissions or agreements of the parties. Such order,
when entered, shall control the course of the proceeding, subject
to later modification by the Hearing Officer by his or her own motion
or upon proper request of a party for good cause shown.
§7.05 Scheduling the Hearing.
(a) Date, Time, and Place of Hearing. The Office shall issue the
notice of hearing, which shall fix the date, time, and place of
hearing. In no event, absent a postponement granted by the Office,
will a hearing commence later than 60 days after the filing of the
complaint.
(b) Motions for Postponement or a Continuance. Motions for postponement
or for a continuance by either party shall be made in writing to
the Office, shall set forth the reasons for the request, and shall
state whether the opposing party consents to such postponement.
Such a motion may be granted upon a showing of good cause. In no
event will a hearing commence later than 90 days after the filing
of the complaint.
§7.06 Consolidation and Joinder of Cases.
(a) Explanation.
(1) Consolidation is when two or more parties have cases that might
be treated as one because they contain identical or similar issues
or in such other appropriate circumstances.
(2) Joinder is when one person has two or more claims pending and
they are united for consideration. For example, where a single individual
who has one appeal pending challenging a 30-day suspension and another
appeal pending challenging a subsequent dismissal, joinder might
be warranted.
(b) The Board, the Office, or a Hearing Officer may consolidate
or join cases on their own initiative or on the motion of a party
if to do so would expedite processing of the cases and not adversely
affect the interests of the parties, taking into account the confidentiality
requirements of section 416 of the Act.
§7.07 Conduct of Hearing; Disqualification of Representatives.
(a) Pursuant to section 405(d)(1) of the Act, the Hearing Officer
shall conduct the hearing in closed session on the record. Only
the Hearing Officer, the parties and their representatives, and
witnesses during the time they are testifying, shall be permitted
to attend, except that the Office may not be precluded from observing
the hearings. The Hearing Officer, or a person designated by the
Hearing Officer or the Executive Director, shall control the recording
of the proceedings.
(b) The hearing shall be conducted as an administrative proceeding.
Witnesses shall testify under oath or affirmation. Except as specified
in the Act and in these rules, the Hearing Officer shall conduct
the hearing, to the greatest extent practicable, in accordance with
the principles and procedures in sections 554 through 557 of title
5 of the United States Code.
(c) No later than the opening of the hearing, or as otherwise ordered
by the Hearing Officer, each party shall submit to the Hearing Officer
and to the opposing party typed lists of the hearing exhibits and
the witnesses, excluding rebuttal witnesses, expected to be called
to testify.
(d) At the commencement of the hearing, or as otherwise ordered
by the Hearing Officer, the Hearing Officer may consider any stipulations
of facts and law pursuant to section 7.10, take official notice
of certain facts pursuant to section 7.11, rule on objections made
by the parties and hear the examination and cross-examination of
witnesses. Each party will be expected to present his or her case
in a concise manner, limiting the testimony of witnesses and submission
of documents to relevant matters.
(e) Any evidentiary objection not timely made before a Hearing Officer
shall, in the absence of clear error, be deemed waived on appeal
to the Board.
(f) If the Hearing Officer concludes that a representative of an
employee, a witness, a charging party, a labor organization, an
employing office, or an entity alleged to be responsible for correcting
a violation has a conflict of interest, he or she may, after giving
the representative an opportunity to respond, disqualify the representative.
In that event, within the time limits for hearing and decision established
by the Act, the affected party shall be afforded reasonable time
to retain other representation.
§7.08 Transcript.
(a) Preparation. An accurate electronic or stenographic record of
the hearing shall be kept and shall be the sole official record
of the proceeding. The Office shall be responsible for the cost
of transcription of the hearing. Upon request, a copy of a transcript
of the hearing shall be provided to each party, provided, however,
that such party has first agreed to maintain and respect the confidentiality
of such transcript in accordance with the applicable rules prescribed
by the Office or the Hearing Officer in order to effectuate section
416(c) of the Act. Additional copies of the transcript shall be
made available to a party at the party's expense. Exceptions to
the payment requirement may be granted for good cause shown. A motion
for an exception shall be made in writing and accompanied by an
affidavit or declaration setting forth the reasons for the request.
Requests for copies of transcripts shall be directed to the Office.
The Office may, by agreement with the person making the request,
make arrangements with the official hearing reporter for required
services to be charged to the requester.
(b) Corrections. Corrections to the official transcript will be
permitted. Motions for correction must be submitted within 10 days
of service of the transcript upon the party. Corrections of the
official transcript will be permitted only upon approval of the
Hearing Officer. The Hearing Officer may make corrections at any
time with notice to the parties.
§7.09 Admissibility of Evidence.
The Hearing Officer shall apply the Federal Rules of Evidence to
the greatest extent practicable. These rules provide, among other
things, that the Hearing Officer may exclude evidence if, among
other things, it constitutes inadmissible hearsay or its probative
value is substantially outweighed by the danger of unfair prejudice,
by confusion of the issues, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
§7.10 Stipulations.
The parties may stipulate as to any matter of fact. Such a stipulation
will satisfy a party's burden of proving the fact alleged.
§7.11 Official Notice.
(a) The Hearing Officer on his or her own motion or on motion of
a party, may take official notice of a fact that is not subject
to reasonable dispute because it is either:
(1) a matter of common knowledge; or
(2) capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Official notice
taken of any fact satisfies a party's burden of proving the fact
noticed.
(b) Where a decision, or part thereof, rests on the official notice
of a material fact not appearing in the evidence in the record,
the fact of official notice shall be so stated in the decision,
and any party, upon timely request, shall be afforded an opportunity
to show the contrary.
§7.12 Confidentiality.
Pursuant to section 416 of the Act, all proceedings and deliberations
of Hearing Officers and the Board, including the transcripts of
hearings and any related records, shall be confidential, except
as specified in section 416(d), (e), and (f) of the Act. All parties
to the proceeding and their representatives, and witnesses who appear
at the hearing, will be advised of the importance of confidentiality
in this process and of their obligations, subject to sanctions,
to maintain it. This provision shall not apply to proceedings under
section 215 of the Act, but shall apply to the deliberations of
Hearing Officers and the Board under that section.
§7.13 Immediate Board Review of a Ruling by a Hearing Officer.
(a) Review Strongly Disfavored. Board review of a ruling by a Hearing
Officer while a proceeding is ongoing (an "interlocutory appeal")
is strongly disfavored. In general, a request for interlocutory
review may go before the Board for consideration only if the Hearing
Officer, on his or her own motion or by motion of the parties, determines
that the issue presented is of such importance to the proceeding
that it requires the Board's immediate attention.
(b) Standards for Review. In determining whether to forward a request
for interlocutory review to the Board, the Hearing Officer shall
consider the following:
(1) whether the ruling involves a significant question of law or
policy about which there is substantial ground for difference of
opinion;
(2) whether an immediate review of the Hearing Officer's ruling
by the Board will materially advance the completion of the proceeding;
and
(3) whether denial of immediate review will cause undue harm to
a party or the public.
(c) Time for Filing. A motion by a party for interlocutory review
of a ruling of the Hearing Officer shall be filed with the Hearing
Officer within 5 days after service of the ruling upon the parties.
The motion shall include arguments in support of both interlocutory
review and the determination requested to be made by the Board upon
review. Responses, if any, shall be filed with the Hearing Officer
within 3 days after service of the motion.
(d) Hearing Officer Action. If the conditions set forth in paragraph
(b) above are met, the Hearing Officer shall forward a request for
interlocutory review to the Board for its immediate consideration.
Any such submission shall explain the basis on which the Hearing
Officer concluded that the standards in paragraph (b) have been
met.
(e) Grant of Interlocutory Review Within Board's Sole Discretion.
The Board, in its sole discretion, may grant interlocutory review.
(f) Stay Pending Review. Unless otherwise directed by the Board,
the stay of any proceedings during the pendency of either a request
for interlocutory review or the review itself shall be within the
discretion of the Hearing Officer, provided that no stay shall serve
to toll the time limits set forth in section 405(d) of the Act.
(g) Denial of Motion not Appealable; Mandamus. The grant or denial
of a motion for a request for interlocutory review shall not be
appealable. The Hearing Officer shall promptly bring a denial of
such a motion, and the reasons therefor, to the attention of the
Board. If, upon consideration of the motion and the reason for denial,
the Board believes that interlocutory review is warranted, it may
grant the review sua sponte. In addition, the Board may in its discretion,
in extraordinary circumstances, entertain directly from a party
a writ of mandamus to review a ruling of a Hearing Officer.
(h) Procedures before Board. Upon its acceptance of a ruling of
the Hearing Officer for interlocutory review, the Board shall issue
an order setting forth the procedures that will be followed in the
conduct of that review.
(i) Review of a Final Decision. Denial of interlocutory review will
not affect a party's right to challenge rulings, which are otherwise
appealable, as part of an appeal to the Board under section 8.01
from the Hearing Officer's decision issued under section 7.16 of
these rules.
§7.14 Posthearing Briefs.
(a) May be Filed. The Hearing Officer may permit the parties to
file posthearing briefs on the factual and the legal issues presented
in the case.
(b) Length. No principal brief shall exceed 50 pages, or 12,500
words, and no reply brief shall exceed 25 pages, or 6,250 words,
exclusive of tables and pages limited only to quotations of statutes,
rules, and the like. Motions to file extended briefs shall be granted
only for good cause shown; the Hearing Officer may in his or her
discretion also reduce the page limits. Briefs in excess of 10 pages
shall include an index and a table of authorities.
(c) Format. Every brief must be easily readable. Briefs must have
double spacing between each line of text, except for quoted texts
and footnotes, which may be single-spaced.
§7.15 Closing the Record of the Hearing.
(a) Except as provided in section 7.14, the record shall be closed
at the conclusion of the hearing. However, when the Hearing Officer
allows the parties to submit additional evidence previously identified
for introduction, the Hearing Officer may allow an additional period
before the conclusion of the hearing as is necessary for that purpose.
(b) Once the record is closed, no additional evidence or argument
shall be accepted into the hearing record except upon a showing
that new and material evidence has become available that was not
available despite due diligence prior to the closing of the record.
However, the Hearing Officer shall make part of the record any motions
for attorney fees, supporting documentation, and determinations
thereon, and any approved correction to the transcript.
§7.16 Hearing Officer Decisions; Entry in Records of the Office.
(a) Pursuant to section 405(g) of the Act, no later than 90 days
after the conclusion of the hearing, the Hearing Officer shall issue
a written decision.
(b) Upon issuance, the decision and order of the Hearing Officer
shall be entered into the records of the Office.
(c) The Office shall promptly provide a copy of the decision and
order of the Hearing Officer to the parties.
(d) If there is no appeal of a decision and order of a Hearing Officer,
that decision becomes a final decision of the Office, which is subject
to enforcement under section 8.03 of these rules.
Subpart H -- Proceedings before the Board
§8.01 Appeal to the Board
§8.02 Reconsideration
§8.03 Compliance with Final Decisions, Requests for Enforcement
§8.04 Judicial Review
§8.01 Appeal to the Board.
(a) No later than 30 days after the entry of the decision and order
of the Hearing Officer in the records of the Office, an aggrieved
party may seek review of that decision and order by the Board by
filing with the Office a petition for review by the Board. The appeal
must be served on the opposing party or its representative.
(b)(1) Unless otherwise ordered by the Board, within 21 days following
the filing of a petition for review to the Board, the appellant
shall file and serve a supporting brief in accordance with section
9.01 of these rules. That brief shall identify with particularity
those findings or conclusions in the decision and order that are
challenged and shall refer specifically to the portions of the record
and the provisions of statutes or rules that are alleged to support
each assertion made on appeal.
(2) Unless otherwise ordered by the Board, within 21 days following
the service of the appellant's brief, the opposing party may file
and serve a responsive brief. Unless otherwise ordered by the Board,
within 10 days following the service of the appellee's responsive
brief, the appellant may file and serve a reply brief.
(3) Upon written delegation by the Board, the Executive Director
is authorized to determine any request for extensions of time to
file any post-petition for review document or submission with the
Board in any case in which the Executive Director has not rendered
a determination on the merits. Such delegation shall continue until
revoked by the Board.
(c) Upon the request of any party or upon its own order, the Board,
in its discretion, may hold oral argument on an appeal.
(d) Upon appeal, the Board shall issue a written decision setting
forth the reasons for its decision. The Board may affirm, reverse,
modify or remand the decision and order of the Hearing Officer in
whole or in part. Where there is no remand the decision of the Board
shall be entered in the records of the Office as the final decision
of the Board and shall be subject to judicial review.
(e) The Board may remand the matter to the Hearing Officer for further
action or proceedings, including the reopening of the record for
the taking of additional evidence. The Hearing Officer shall render
a decision or report to the Board, as ordered, at the conclusion
of proceedings on the remanded matters. Upon receipt of the decision
or report, the Board shall determine whether the views of the parties
on the content of the decision or report should be obtained in writing
and, where necessary, shall fix by order the time for the submission
of those views. A decision of the Board following completion of
the remand shall be entered in the records of the Office as the
final decision of the Board and shall be subject to judicial review.
(f) Pursuant to section 406(c) of the Act, in conducting its review
of the decision of a Hearing Officer, the Board shall set aside
a decision if it determines that the decision was:
(1) arbitrary, capricious, an abuse of discretion, or otherwise
not consistent with law;
(2) not made consistent with required procedures; or
(3) unsupported by substantial evidence.
(g) In making determinations under paragraph (f), above, the Board
shall review the whole record, or those parts of it cited by a party,
and due account shall be taken of the rule of prejudicial error.
(h) Record. The complaint and any amendments, notice of hearing,
answer and any amendments, motions, rulings, orders, stipulations,
exhibits, documentary evidence, any portions of depositions admitted
into evidence, and the transcript of the hearing (together with
any electronic recording of the hearing if the original reporting
was performed electronically) together with the Hearing Officer's
decision and the petition for review, any response thereto, any
reply to the response and any other pleadings shall constitute the
record in the case.
(i) The Board may invite amicus participation, in appropriate circumstances,
in a manner consistent with the requirements of section 416 of the
CAA.
§8.02 Reconsideration.
After a final decision or order of the Board has been issued, a
party to the proceeding before the Board, who can establish in its
moving papers that reconsideration is necessary because the Board
has overlooked or misapprehended points of law or fact, may move
for reconsideration of such final decision or order. The motion
shall be filed within 15 days after service of the Board's decision
or order. No response shall be filed unless the Board so orders.
The filing and pendency of a motion under this provision shall not
relieve a party of the obligation to file a timely appeal or operate
to stay the action of the Board unless so ordered by the Board.
§8.03 Compliance with Final Decisions, Requests for Enforcement.
(a) Unless the Board has, in its discretion, stayed the final decision
of the Office during the pendency of an appeal pursuant to section
407 of the Act, and except as provided in sections 210(d)(5) and
215(c)(6), a party required to take any action under the terms of
a final decision of the Office shall carry out its terms promptly,
and shall within 30 days after the decision or order becomes final
and goes into effect by its terms, provide the Office and all other
parties to the proceedings with a compliance report specifying the
manner in which compliance with the provisions of the decision or
order has been accomplished. If complete compliance has not been
accomplished within 30 days, the party required to take any such
action shall submit a compliance report specifying why compliance
with any provision of the decision or order has not yet been fully
accomplished, the steps being taken to assure full compliance, and
the anticipated date by which full compliance will be achieved.
(b) The Office may require additional reports as necessary.
(c) If the Office does not receive notice of compliance in accordance
with paragraph (a) of this section, the Office shall make inquiries
to determine the status of compliance. If the Office cannot determine
that full compliance is forthcoming, the Office shall report the
failure to comply to the Board and recommend whether court enforcement
of the decision should be sought.
(d) Any party may petition the Board for enforcement of a final
decision of the Office or the Board. The petition shall specifically
set forth the reasons why the petitioner believes enforcement is
necessary.
(e) Upon receipt of a report of non-compliance or a petition for
enforcement of a final decision, or as it otherwise determines,
the Board may issue a notice to any person or party to show cause
why the Board should not seek judicial enforcement of its decision
or order.
(f) Within the discretion of the Board, it may direct the General
Counsel to petition the Court for enforcement under section 407(a)(2)
of a decision under section 406(e) of the Act whenever the Board
finds that a party has failed to comply with its decision and order.
§8.04 Judicial Review. Pursuant to section 407 of the Act,
(a) the United States Court of Appeals for the Federal Circuit shall
have jurisdiction over any proceeding commenced by a petition of:
(1) a party aggrieved by a final decision of the Board under section
406(e) in cases arising under part A of title II;
(2) a charging individual or respondent before the Board who files
a petition under section 210(d)(4);
(3) the General Counsel or a respondent before the Board who files
a petition under section 215(c)(5); or
(4) the General Counsel or a respondent before the Board who files
a petition under section 220(c)(3) of the Act.
(b) The United States Court of Appeals for the Federal Circuit shall
have jurisdiction over any petition of the General Counsel, filed
in the name of the Office and at the direction of the Board, to
enforce a final decision under section 405(g) or 406(e) with respect
to a violation of part A, B, C, or D of title II of the Act.
(c) The party filing a petition for review shall serve a copy on
the opposing party or parties or their representative(s).
Subpart I -- Other Matters of General Applicability
§9.01 Filing, Service and Size Limitations of Motions, Briefs,
Responses and other Documents
§9.02 Signing of Pleadings, Motions and Other Filings; Violations
of Rules; Sanctions
§9.03 Attorney's Fees and Costs
§9.04 Ex parte Communications§9.05 Settlement Agreements
§9.06 Revocation, Amendment or Waiver of Rules
§9.01 Filing, Service, and Size Limitations of Motions, Briefs,
Responses and Other Documents.
(a) Filing with the Office; Number. One original and three copies
of all motions, briefs, responses, and other documents, must be
filed, whenever required, with the Office or Hearing Officer. However,
when a party aggrieved by the decision of a Hearing Officer or a
party to any other matter or determination reviewable by the Board
files an appeal or other submission with the Board, one original
and seven copies of any submission and any responses must be filed
with the Office. The Office, Hearing Officer, or Board may also
request a party to submit an electronic version of any submission
in a designated format, with receipt confirmed by electronic transmittal
in the same format.
(b) Service. The parties shall serve on each other one copy of all
motions, briefs, responses and other documents filed with the Office,
other than the request for counseling, the request for mediation
and complaint. Service shall be made by mailing or by hand delivering
a copy of the motion, brief, response or other document to each
party, or if represented, the party's representative, on the service
list previously provided by the Office. Each of these documents,
must be accompanied by a certificate of service specifying how,
when and on whom service was made. It shall be the duty of each
party to notify the Office and all other parties in writing of any
changes in the names or addresses on the service list.
(c) Time Limitations for Response to Motions or Briefs and Reply.
Unless otherwise specified by the Hearing Officer or these rules,
a party shall file a response to a motion or brief within 15 days
of the service of the motion or brief upon the party. Any reply
to such response shall be filed and served within 5 days of the
service of the response. Only with the Hearing Officer's advance
approval may either party file additional responses or replies.
(d) Size Limitations. Except as otherwise specified by the Hearing
Officer or these rules, no brief, motion, response, or supporting
memorandum filed with the Office shall exceed 35 pages, or 8,750
words, exclusive of the table of contents, table of authorities
and attachments. The Board, the Office or Hearing Officer may waive,
raise or reduce this limitation for good cause shown or on its own
initiative. Briefs, motions, responses, and supporting memoranda
shall be on standard letter-size paper (8-1/2" x 11").
§9.02 Signing of Pleadings, Motions and Other Filings; Violation
of Rules; Sanctions.
Every pleading, motion, and other filing of a party represented
by an attorney or other designated representative shall be signed
by the attorney or representative. A party who is not represented
shall sign the pleading, motion or other filing. The signature of
a representative or party constitutes a certificate by the signer
that the signer has read the pleading, motion, or other filing;
that to the best of the signer's knowledge, information, and belief
formed after reasonable inquiry, it is well grounded in fact and
is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed
for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation. If a pleading,
motion, or other filing is not signed, it shall be stricken unless
it is signed promptly after the omission is called to the attention
of the person who is required to sign. If a pleading, motion, or
other filing is signed in violation of this rule, a Hearing Officer
or the Board, as appropriate, upon motion or upon its own initiative,
shall impose upon the person who signed it, a represented party,
or both, an appropriate sanction, which may include an order to
pay to the other party or parties the amount of the reasonable expenses
incurred because of the filing of the pleading, motion, or other
filing, including a reasonable attorney's fee. A Hearing Officer
or the Board, as appropriate, upon motion or its own initiative
may also impose an appropriate sanction, which may include the sanctions
specified in section 7.02, for any other violation of these rules
that does not result from reasonable error.
§9.03 Attorney's Fees and Costs.
(a) Request. No later than 20 days after the entry of a Hearing
Officer's decision under section 7.16 or after service of a Board
decision by the Office, the complainant, if he or she is a prevailing
party, may submit to the Hearing Officer who heard the case initially
a motion for the award of reasonable attorney's fees and costs,
following the form specified in paragraph (b) below. All motions
for attorney’s fees and costs shall be submitted to the Hearing
Officer. The Hearing Officer, after giving the respondent an opportunity
to reply, shall rule on the motion. Decisions regarding attorney’s
fees and costs are collateral and do not affect the finality or
appealability of a final decision issued by the Hearing Officer.
A ruling on a motion for attorney’s fees and costs may be
appealed together with the final decision of the Hearing Officer.
If the motion for attorney’s fees is ruled on after the final
decision has been issued by the Hearing Officer, the ruling may
be appealed in the same manner as a final decision, pursuant to
section 8.01 of these Rules.
(b) Form of Motion. In addition to setting forth the legal and factual
bases upon which the attorney's fees and/or costs are sought, a
motion for an award of attorney's fees and/or costs shall be accompanied
by:
(1) accurate and contemporaneous time records;
(2) a copy of the terms of the fee agreement (if any);
(3) the attorney's customary billing rate for similar work; and
(4) an itemization of costs related to the matter in question.
§9.04 Ex parte Communications.
(a) Definitions.
(1) The term interested person outside the Office means any covered
employee and agent thereof who is not an employee or agent of the
Office, any labor organization and agent thereof, any employing
office and agent thereof, and any individual or organization and
agent thereof, who is or may reasonably be expected to be involved
in a proceeding or a rulemaking, and the General Counsel and any
agent thereof when prosecuting a complaint proceeding before the
Office pursuant to sections 210, 215, or 220 of the CAA. The term
also includes any employee of the Office who becomes a party or
a witness for a party other than the Office in proceedings as defined
in these rules.
(2) The term ex parte communication means an oral or written communication
(i) that is between an interested person outside the Office and
a Board member or Hearing Officer who is or may reasonably be expected
to be involved in a proceeding or a rulemaking;
(ii) that is related to a proceeding or a rulemaking;
(iii) that is not made on the public record;
(iv) that is not made in the presence of all parties to a proceeding
or a rulemaking; and
(v) that is made without reasonable prior notice to all parties
to a proceeding or a rulemaking.
(3) For purposes of section 9.04, the term proceeding means the
complaint and hearing proceeding under section 405 of the CAA, an
appeal to the Board under section 406 of the CAA, a pre-election
investigatory hearing under section 220 of the CAA, and any other
proceeding of the Office established pursuant to regulations issued
by the Board under the CAA.
(4) The term period of rulemaking means the period commencing with
the issuance of an advance notice of proposed rulemaking or of a
notice of proposed rulemaking, whichever issues first, and concluding
with the issuance of a final rule.
(b) Exception to Coverage. The rules set forth in this section do
not apply during periods that the Board designates as periods of
negotiated rulemaking.
(c) Prohibited Ex Parte Communications and Exceptions.
(1) During a proceeding, it is prohibited knowingly to make or cause
to be made:
(i) a written ex parte communication if copies thereof are not promptly
served by the communicator on all parties to the proceeding in accordance
with section 9.01 of these Rules; or
(ii) an oral ex parte communication unless all parties have received
advance notice thereof by the communicator and have an adequate
opportunity to be present.
(2) During the period of rulemaking, it is prohibited knowingly
to make or cause to be made a written or an oral ex parte communication.
During the period of rulemaking, the Office shall treat any written
ex parte communication as a comment in response to the advance notice
of proposed rulemaking or the notice of proposed rulemaking, whichever
is pending, and such communications will therefore be part of the
public rulemaking record.
(3) Notwithstanding the prohibitions set forth in (1) and (2), the
following ex parte communications are not prohibited:
(i) those which relate solely to matters which the Board member
or Hearing Officer is authorized by law, Office rules, or order
of the Board or Hearing Officer to entertain or dispose of on an
ex parte basis;
(ii) those which all parties to the proceeding agree, or which the
responsible official formally rules, may be made on an ex parte
basis;
(iii) those which concern only matters of general significance to
the field of labor and employment law or administrative practice;
(iv) those from the General Counsel to the Office or the Board when
the General Counsel is acting on behalf of the Office or the Board
under any section of the CAA; and
(v) those which could not reasonably be construed to create either
unfairness or the appearance of unfairness in a proceeding or rulemaking.
(4) It is prohibited knowingly to solicit or cause to be solicited
any prohibited ex parte communication.
(d) Reporting of Prohibited Ex Parte Communications.
(1) Any Board member or Hearing Officer who is or may reasonably
be expected to be involved in a proceeding or a rulemaking and who
determines that he or she is being asked to receive a prohibited
ex parte communication shall refuse to do so and inform the communicator
of this rule.
(2) Any Board member or Hearing Officer who is or may reasonably
be expected to be involved in a proceeding who knowingly receives
a prohibited ex parte communication shall (i) notify the parties
to the proceeding that such a communication has been received; and
(ii) provide the parties with a copy of the communication and of
any response thereto (if written) or with a memorandum stating the
substance of the communication and any response thereto (if oral).
If a proceeding is then pending before either the Board or a Hearing
Officer, and if the Board or Hearing Officer so orders, these materials
shall then be placed in the record of the proceeding. Upon order
of the Hearing Officer or the Board, the parties may be provided
with a full opportunity to respond to the alleged prohibited ex
parte communication and to address what action, if any, should be
taken in the proceeding as a result of the prohibited communication.
(3) Any Board member involved in a rulemaking who knowingly receives
a prohibited ex parte communication shall cause to be published
in the Congressional Record a notice that such a communication has
been received and a copy of the communication and of any response
thereto (if written) or with a memorandum stating the substance
of the communication and any response thereto (if oral). Upon order
of the Board, these materials shall then be placed in the record
of the rulemaking and the Board shall provide interested persons
with a full opportunity to respond to the alleged prohibited ex
parte communication and to address what action, if any, should be
taken in the proceeding as a result of the prohibited communication.
(4) Any Board member or Hearing Officer who is or may reasonably
be expected to be involved in a proceeding or a rulemaking and who
knowingly receives a prohibited ex parte communication and who fails
to comply with the requirements of subsections (1), (2), or (3)
above, is subject to internal censure or discipline through the
same procedures that the Board utilizes to address and resolve ethical
issues.
(e) Penalties and Enforcement.
(1) Where a person is alleged to have made or caused another to
make a prohibited ex parte communication, the Board or the Hearing
Officer (as appropriate) may issue to the person a notice to show
cause, returnable within a stated period not less than seven days
from the date thereof, why the Board or the Hearing Officer should
not determine that the interests of law or justice require that
the person be sanctioned by, where applicable, dismissal of his
or her claim or interest, the striking of his or her answer, or
the imposition of some other appropriate sanction, including but
not limited to the award of attorneys' fees and costs incurred in
responding to a prohibited ex parte communication. Sanctions shall
be commensurate with the seriousness and unreasonableness of the
offense, accounting for, among other things, the advertency or inadvertency
of the prohibited communication.
(2) Any Board member or Hearing Officer who is or may reasonably
be expected to be involved in a proceeding or a rulemaking and who
knowingly makes or causes to be made a prohibited ex parte communication
is subject to internal censure or discipline through the same procedures
that the Board utilizes to address and resolve ethical issues.
§9.05 Informal Resolutions and Settlement Agreements.
(a) Informal Resolution. At any time before a covered employee who
has filed a formal request for counseling files a complaint under
section 405, a covered employee and the employing office, on their
own, may agree voluntarily and informally to resolve a dispute,
so long as the resolution does not require a waiver of a covered
employee's rights or the commitment by the employing office to an
enforceable obligation.
(b) Formal Settlement Agreement. The parties may agree formally
to settle all or part of a disputed matter in accordance with section
414 of the Act. In that event, the agreement shall be in writing
and submitted to the Executive Director for review and approval.
If the Executive Director does not approve the settlement, such
disapproval shall be in writing, shall set forth the grounds therefor,
and shall render the settlement ineffective.
(c) Requirements for a Formal Settlement Agreement. A formal settlement
agreement requires the signature of all parties or their designated
representatives on the agreement document before the agreement can
be submitted to the Executive Director. A formal settlement agreement
cannot be rescinded after the signatures of all parties have been
affixed to the agreement, unless by written revocation of the agreement
voluntarily signed by all parties, or as otherwise permitted by
law.
(d) Violation of a Formal Settlement Agreement. If a party should
allege that a formal settlement agreement has been violated, the
issue shall be determined by reference to the formal dispute resolution
procedures of the agreement. If the particular formal settlement
agreement does not have a stipulated method for dispute resolution
of an alleged violation of the agreement, the following dispute
resolution procedure shall be deemed to be a part of each formal
settlement agreement approved by the Executive Director pursuant
to section 414 of the Act: Any complaint regarding a violation of
a formal settlement agreement may be filed with the Executive Director
no later than 60 days after the party to the agreement becomes aware
of the alleged violation. Such complaints may be referred by the
Executive Director to a Hearing Officer for a final decision. The
procedures for hearing and determining such complaints shall be
governed by subparts F, G, and H of these Rules.
§9.06 Payments required pursuant to Decisions, Awards, or
Settlements under section 415(a) of the Act.
Whenever a decision or award pursuant to sections 405(g), 406(e),
407, or 408 of the Act, or an approved settlement pursuant to section
414 of the Act, require the payment of funds pursuant to section
415(a) of the Act, the decision, award, or settlement shall be submitted
to the Executive Director to be processed by the Office for requisition
from the account of the Office of Compliance in the Department of
the Treasury, and payment.
§9.07 Revocation, Amendment or Waiver of Rules.
(a) The Executive Director, subject to the approval of the Board,
may revoke or amend these rules by publishing proposed changes in
the Congressional Record and providing for a comment period of not
less than 30 days. Following the comment period, any changes to
the rules are final once they are published in the Congressional
Record.
(b) The Board or a Hearing Officer may waive a procedural rule contained
in this Part in an
individual case for good cause shown if application of the rule
is not required by law.
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