Representation Proceedings, Unfair Labor Practice Proceedings, and Miscellaneous and General Requirements, 37751-37762 [2012-15462]

Agencies

• Federal Labor Relations Authority

[Federal Register Volume 77, Number 122 (Monday, June 25, 2012)]
[Rules and Regulations]
[Pages 37751-37762]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15462]



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Rules and Regulations
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Federal Register / Vol. 77, No. 122 / Monday, June 25, 2012 / Rules 
and Regulations

[[Page 37751]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2422, 2423, and 2429


Representation Proceedings, Unfair Labor Practice Proceedings, 
and Miscellaneous and General Requirements

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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SUMMARY: The Federal Labor Relations Authority (the FLRA) is engaged in 
an initiative to make electronic filing, or ``eFiling,'' available to 
parties in all cases before the FLRA. Making eFiling available to its 
parties is another way in which the FLRA is using technology to improve 
the customer-service experience. EFiling also is expected to increase 
efficiencies by reducing procedural filing errors and resulting 
processing delays.

DATES: Effective Date: July 25, 2012.

ADDRESSES: Written comments can be emailed to engagetheflra@flra.gov or 
sent to the Office of General Counsel, Federal Labor Relations 
Authority, Suite 200, 1400 K Street NW., Washington, DC 20424-0001. All 
written comments will be available for public inspection during normal 
business hours at the Office of General Counsel.

FOR FURTHER INFORMATION CONTACT: Dennis P. Walsh, Deputy General 
Counsel, (202) 218-7741; or email: engagetheflra@flra.gov.

SUPPLEMENTARY INFORMATION: In the first stage of its eFiling 
initiative, the FLRA enabled parties to use eFiling to file requests 
for Federal Service Impasses Panel assistance in the resolution of 
negotiation impasses. See 77 FR 5987 (Feb. 7, 2012). The second stage 
of the FLRA's eFiling initiative provided parties with an option to use 
the FLRA's eFiling system to electronically file 11 types of documents 
in cases that are filed with the FLRA's three-Member adjudicatory body, 
the Authority. Parties may now eFile such documents.
    The third and last stage of the FLRA's eFiling initiative is the 
subject of this final rule. In this stage, parties will be able to use 
the FLRA's eFiling system to file certain documents involved in 
representation (part 2422) and unfair labor practice (part 2423) 
proceedings. This rule modifies the FLRA's existing regulations to 
allow for eFiling of the documents described below. The rule also 
clarifies some of the procedural regulations as required under the 
Plain Writing Act of 2010, 5 U.S.C. 301 note. In addition, the rule 
expressly sets forth the Authority's existing practice of requiring 
parties to serve Regional Directors with applications for review filed 
pursuant to 5 CFR 2422.31.
    As the FLRA's eFiling procedures develop, the revisions set forth 
in this action may be evaluated and revised further.

Sectional Analyses

    Sectional analyses of the amendments and revisions to part 2422, 
Representation Proceedings, part 2423, Unfair Labor Practice 
Proceedings, and part 2429, Miscellaneous and General Requirements, are 
as follows:

Part 2422--Representation Proceedings

Sections 2422.1 and 2422.2

    These sections are amended to be consistent with the Plain Writing 
Act guidelines.

Section 2422.3

    This section is amended to state that petitioners may file a 
representation petition electronically through use of the FLRA's 
eFiling system on the FLRA's Web site at www.flra.gov. Paragraph (a) of 
this section is amended to state that a petitioner should provide a fax 
number and email address (if known) for each entity listed.

Section 2422.4

    This section is amended to be consistent with the Plain Writing Act 
guidelines.

Section 2422.5

    Paragraph (b) of this section is amended to state that if a 
petitioner files a petition electronically through the use of the 
FLRA's eFiling system at the FLRA's Web site at www.flra.gov or by 
facsimile transmission, then it is not necessary to file an original 
copy with the Region, but the petitioner assumes responsibility for the 
Region's receipt of the petition.
    Paragraph (c) of this section is amended to state that a petition 
filed electronically through the use of the FLRA's eFiling system at 
the FLRA's Web site at www.flra.gov or by facsimile transmission is 
deemed received and docketed by the Region on the business day the 
Region receives it up until midnight local time. If received after 
midnight local time, it is deemed received and docketed on the next 
business day.

Sections 2422.6 and 2422.7

    These sections are amended to be consistent with the Plain Writing 
Act guidelines.

Section 2422.8

    Paragraph (b) of this section is amended to provide for the filing 
of a cross-petition electronically through the use of the FLRA's 
eFiling system at the FLRA's Web site at www.flra.gov or by facsimile 
transmission.

Sections 2422.9 Through 2422.34

    These sections are amended to be consistent with the Plain Writing 
Act guidelines. In addition, section 2422.31(a) is amended to set forth 
the Authority's existing practice of requiring parties to serve 
Regional Directors with applications for review.

Part 2423--Unfair Labor Practice Proceedings

Section 2423.0

    This section is amended to state that part 2423 is applicable to 
any unfair labor practice cases that are pending or filed with the FLRA 
on or after July 25, 2012.

Sections 2423.1 Through 2423.3

    These sections are amended to be consistent with the Plain Writing 
Act guidelines.

Section 2423.4

    Paragraph (a) is amended to provide for filing a charge 
electronically through the use of the eFiling system on the FLRA's Web 
site at www.flra.gov or by facsimile transmission. In addition, if 
known, the Charging Party must indicate the facsimile numbers and

[[Page 37752]]

email addresses for all parties and contact persons.

Section 2423.5

    This section is amended to be consistent with the Plain Writing Act 
guidelines.

Section 2423.6

    Paragraph (b) is amended to provide for the dates of filing for 
charges filed electronically through the use of the eFiling system on 
the FLRA's Web site at www.flra.gov or by facsimile transmission. A 
charge filed by either of these methods is deemed filed on the day it 
is received in a Region up until midnight local time. If received after 
midnight it is deemed received on the next business day.

Sections 2423.7 Through 2423.10

    These sections are amended to be consistent with the Plain Writing 
Act guidelines.

Section 2423.11

    Paragraph (c) is amended to provide for an option for filing an 
appeal of a Regional Director's decision to dismiss a charge by email 
to ogc.appeals@flra.gov.
    Paragraph (d) is amended to provide for an option for filing a 
request for an extension of time to file an appeal by email to 
ogc.appeals@flra.gov.

Section 2423.12

    This section is amended to be consistent with the Plain Writing Act 
guidelines.

Part 2429--Miscellaneous and General Requirements

Section 2429.24

    Paragraph (f) is amended to add three documents (12-14) to the list 
of documents that a party may file alternatively by electronic means 
through the use of the FLRA's eFiling service: (12) petition under 5 
CFR part 2422; (13) cross-petition under 5 CFR part 2422; and (14) 
unfair labor practice charge under 5 CFR part 2423.
    Paragraph (g) is amended to add an appeal of a dismissal of an 
unfair labor practice charge under 5 CFR part 2423 as document that a 
Charging Party may file by facsimile transmission.

Executive Order 12866

    The FLRA is an independent regulatory agency, and as such, is not 
subject to the requirements of E.O. 12866.

Executive Order 13132

    The FLRA is an independent regulatory agency, and as such, is not 
subject to the requirements of E.O. 13132.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Chairman of the FLRA has determined that this rule, 
as amended, will not have a significant impact on a substantial number 
of small entities, because this rule applies only to federal agencies, 
federal employees, and labor organizations representing those 
employees.

Unfunded Mandates Reform Act of 1995

    This rule change will not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000 or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This action is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

    The amended regulations contain no additional information 
collection or record-keeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Parts 2422, 2423, and 2429

    Administrative practice and procedure, Government employees, Labor 
management relations.

    For the reasons stated in the preamble, the FLRA amends 5 CFR Parts 
2422, 2423, and 2429, as follows:

PART 2422--REPRESENTATION PROCEEDINGS

0
1. Part 2422 is revised to read as follows:

Sec.
2422.1 What is your purpose for filing a petition?
2422.2 Who may file a petition?
2422.3 What information should you include in your petition?
2422.4 What service requirements must you meet when filing a 
petition?
2422.5 Where do you file petitions?
2422.6 How are parties notified of the filing of a petition?
2422.7 Will an activity or agency post a notice of filing of a 
petition?
2422.8 What is required to file an Intervention or Cross-petition?
2422.9 How is the adequacy of a showing of interest determined?
2422.10 How do you challenge the validity of a showing of interest?
2422.11 How do you challenge the status of a labor organization?
2422.12 What circumstances does the Region consider to determine 
whether your petition is timely filed?
2422.13 How are issues raised by your petition resolved?
2422.14 What is the effect of your withdrawal or the Regional 
Director's dismissal of a petition?
2422.15 Do parties have a duty to provide information and cooperate 
after a petition is filed?
2422.16 May parties enter into election agreements, and if they do 
not will the Regional Director direct an election?
2422.17 What are a notice of hearing and prehearing conference?
2422.18 What is the purpose of a representation hearing and what 
procedures are followed?
2422.19 When is it appropriate for a party to file a motion at a 
representation hearing?
2422.20 What rights do parties have at a hearing?
2422.21 What are the duties and powers of a Hearing Officer?
2422.22 What are objections and exceptions concerning the conduct of 
the hearing?
2422.23 What election procedures are followed?
2422.24 What are challenged ballots?
2422.25 When does the Region tally the ballots?
2422.26 How are objections to the election processed?
2422.27 How does the Region address determinative challenged ballots 
and objections?
2422.28 When is a runoff election required?
2422.29 How does the Region address an inconclusive election?
2422.30 When does a Regional Director investigate a petition, issue 
notices of hearings, take actions, and issue Decisions and Orders?
2422.31 When do you file an application for review of a Regional 
Director Decision and Order?
2422.32 When does a Regional Director issue a certification or a 
revocation of certification?
2422.33 Relief under part 2423 of this chapter.
2422.34 What are the parties' rights and obligations when a 
representation proceeding is pending?

    Authority:  3 U.S.C. 431; 5 U.S.C. 7134.

[[Page 37753]]

Sec.  2422.1  What is your purpose for filing a petition?

    You, the petitioner, may file a petition for the following 
purposes:
    (a) Elections or Eligibility for dues allotment. To request:
    (1)(i) An election to determine whether employees in an appropriate 
unit wish to be represented for the purpose of collective bargaining by 
an exclusive representative, and/or
    (ii) A determination of eligibility for dues allotment in an 
appropriate unit without an exclusive representative; or
    (2) An election to determine whether employees in a unit no longer 
wish to be represented for the purpose of collective bargaining by an 
exclusive representative.
    (3) Petitions under this subsection must be accompanied by an 
appropriate showing of interest.
    (b) Clarification or Amendment. To clarify, and/or amend:
    (1) A recognition or certification then in effect; and/or
    (2) Any other matter relating to representation.
    (c) Consolidation. To consolidate two or more units, with or 
without an election, in an agency where a labor organization is the 
exclusive representative.


Sec.  2422.2  Who may file a petition?

    An individual; a labor organization; two or more labor 
organizations acting as a joint-petitioner; an individual acting on 
behalf of any employee(s); an agency or activity; or a combination of 
the above may file a representation petition. But,
    (a) Only a labor organization may file a petition under Sec.  
2422.1(a)(1);
    (b) Only an individual may file a petition under Sec.  
2422.1(a)(2); and
    (c) Only an agency or a labor organization may file a petition 
under Sec.  2422.1(b) or (c).


Sec.  2422.3  What information should you include in your petition?

    (a) You must file a petition either in writing with your signature 
or electronically using the eFiling system on the FLRA's Web site at 
www.flra.gov. Your petition must provide the following information on a 
form designated by the Authority, or on a substantially similar form, 
or electronically using the eFiling system on the FLRA's Web site at 
www.flra.gov:
    (1) The name and mailing address for each agency or activity 
affected by issues raised in the petition, including street number, 
city, state and zip code.
    (2) The name, mailing address and work telephone number, fax number 
and email address (if known) of the contact person for each agency or 
activity affected by issues raised in the petition.
    (3) The name and mailing address for each labor organization 
affected by issues raised in the petition, including street number, 
city, state and zip code. If a labor organization is affiliated with a 
national organization, the local designation and the national 
affiliation should both be included. If a labor organization is an 
exclusive representative of any of the employees affected by issues 
raised in the petition, the date of the recognition or certification 
and the date any collective bargaining agreement covering the unit will 
expire or when the most recent agreement did expire should be included, 
if known.
    (4) The name, mailing address and work telephone number, fax number 
and email address (if known) of the contact person for each labor 
organization affected by issues raised in the petition.
    (5) Your name and mailing address, including street number, city, 
state and zip code, and fax number and email address. If you are a 
labor organization affiliated with a national organization, the local 
designation and the national affiliation should both be included.
    (6) A description of the unit(s) affected by issues raised in the 
petition. The description should generally indicate the geographic 
locations and the classifications of the employees included (or sought 
to be included) in, and excluded (or sought to be excluded) from, the 
unit.
    (7) The approximate number of employees in the unit(s) affected by 
issues raised in the petition.
    (8) A clear and concise statement of the issues raised by the 
petition and the results the petitioner seeks.
    (9) A declaration by the person signing the petition, under the 
penalties of the Criminal Code (18 U.S.C. 1001), that the contents of 
the petition are true and correct to the best of the person's knowledge 
and belief.
    (10) The title, mailing address and telephone number of the person 
filing the petition.
    (b) Certification of compliance with 5 U.S.C. 7111(e). A labor 
organization/petitioner complies with 5 U.S.C. 7111(e) by submitting to 
the agency or activity and to the Department of Labor a roster of its 
officers and representatives, a copy of its constitution and bylaws, 
and a statement of its objectives. By signing the petition form, the 
labor organization/petitioner certifies that it has submitted these 
documents to the activity or agency and to the Department of Labor.
    (c) Showing of interest supporting a representation petition 
(defined at 5 U.S.C. 2421.16). When filing a petition requiring a 
showing of interest, you must:
    (1) So indicate on the petition form;
    (2) Submit with the petition a showing of interest of not less than 
thirty percent (30%) of the employees in the unit involved in the 
petition; and
    (3) Include an alphabetical list of the names constituting the 
showing of interest.
    (d) Petition seeking dues allotment. When there is no exclusive 
representative, a petition seeking certification for dues allotment 
must be accompanied by a showing of membership in the petitioner of not 
less than ten percent (10%) of the employees in the unit claimed to be 
appropriate. An alphabetical list of names constituting the showing of 
membership must be submitted.


Sec.  2422.4  What service requirements must you meet when filing a 
petition?

    You must serve every petition, motion, brief, request, challenge, 
written objection, or application for review on all parties affected by 
issues raised in the filing. The service must include all supporting 
documentation, with the exceptions of a showing of interest, evidence 
supporting challenges to the validity of a showing of interest, and 
evidence supporting objections to an election. You must submit a 
statement of service to the Regional Director.


Sec.  2422.5  Where do you file petitions?

    (a) Where to file. You must file a petition with the Regional 
Director for the region in which the unit or employee(s) affected by 
issues raised in the petition are located. If the unit(s) or employees 
are located in two or more regions of the Authority, you must file the 
petitions with the Regional Director for the region where the 
headquarters of the agency or activity is located.
    (b) Method of filing. You may file a petition with the Regional 
Director in person or by commercial delivery, first class mail, 
facsimile, certified mail, or electronically through use of the eFiling 
system on the FLRA's Web site at www.flra.gov. If you file 
electronically or by facsimile transmission you are not required to 
file an original copy of the petition with the Region. You assume 
responsibility for the Regional Director's receipt of a petition.
    (c) Date of filing. When a Regional Director receives a petition, 
it is deemed filed. A petition filed during business hours by facsimile 
or electronic means

[[Page 37754]]

is deemed received on the business day on which it is received (either 
by the Regional Office fax machine or by the eFiling system), until 
midnight local time in the Region where it is filed. But when a Region 
receives a petition by any other method after the close of business 
day, it will be deemed received and docketed on the next business day. 
The business hours for each of the Regional Offices are set forth at 
https://www.flra.gov.


Sec.  2422.6  How are parties notified of the filing of a petition?

    (a) Notification to parties. After you file a petition the Regional 
Director will notify any labor organization, agency, or activity 
identified as being affected by issues raised by the petition, that a 
petition has been filed. The Regional Director will also make 
reasonable efforts to identify and notify any other party affected by 
the issues raised by the petition.
    (b) Contents of the notification. The notification will inform the 
labor organization, agency, or activity of:
    (1) Your name (the petitioner);
    (2) The description of the unit(s) or employees affected by issues 
raised in the petition; and,
    (3) A statement that all affected parties should advise the 
Regional Director in writing of their interest in the issues raised in 
the petition.


Sec.  2422.7  Will an activity or agency post a notice of filing of a 
petition?

    (a) Posting notice of petition. After you file a petition, when 
appropriate, the Regional Director will direct the agency or activity 
to post copies of a notice to all employees in places where notices are 
normally posted for the employees affected by issues raised in the 
petition and/or distribute copies of a notice in a manner by which 
notices are normally distributed.
    (b) Contents of notice. The notice must advise affected employees 
about the petition.
    (c) Duration of notice. The notice must be conspicuously posted for 
a period of ten (10) days and must not be altered, defaced, or covered 
by other material.


Sec.  2422.8  What is required to file an Intervention or Cross-
petition?

    (a) Cross-petitions. A cross-petition is a petition that involves 
any employees in a unit covered by a pending representation petition. 
If you file a cross-petition, it must be filed under the requirements 
of this subpart.
    (b) Intervention requests and cross-petitions.
    (1) You may file a request to intervene, along with any necessary 
showing of interest, with either the Regional Director or the Hearing 
Officer. This must be filed either in person, or by commercial 
delivery, first-class mail, certified mail or facsimile. You must file 
a request to intervene before the hearing opens, unless you show good 
cause for granting an extension. If no hearing is held, you must file a 
request to intervene before action is taken under Sec.  2422.30.
    (2) You may file a cross-petition, along with any necessary showing 
of interest, with either the Regional Director or the Hearing Officer. 
This must be filed electronically through the use of the eFiling system 
on the FLRA's Web site at www.flra.gov or, in person, by commercial 
delivery, first-class mail, certified mail or facsimile. Any cross-
petition must be filed before the hearing opens, unless you show good 
cause for granting an extension. If no hearing is held, you must file a 
cross-petition before action is taken under Sec.  2422.30.
    (c) Labor organization intervention requests. Except for incumbent 
intervenors, a labor organization seeking to intervene must submit a 
statement that it has complied with 5 U.S.C. 7111(e) and one of the 
following:
    (1) A showing of interest of ten percent (10%) or more of the 
employees in the unit covered by a petition seeking an election, with 
an alphabetical list of the names of the employees establishing the 
showing of interest; or
    (2) A current or recently expired collective bargaining agreement 
covering any of the employees in the unit affected by issues raised in 
the petition; or
    (3) Evidence that it is or was, before a reorganization, the 
recognized or certified exclusive representative of any of the 
employees affected by issues raised in the petition.
    (d) Incumbent. An incumbent exclusive representative, without 
regard to the requirements of paragraph (c) of this section, will be 
considered a party in any representation proceeding raising issues that 
affect employees the incumbent represents, unless it serves the 
Regional Director with a written disclaimer of any representation 
interest in the claimed unit.
    (e) Employing agency. An agency or activity will be considered a 
party if any of its employees are affected by issues raised in the 
petition.
    (f) Agency or activity intervention. An agency or activity seeking 
to intervene in any representation proceeding must submit evidence that 
one or more employees of the agency or activity may be affected by 
issues raised in the petition.


Sec.  2422.9  How is the adequacy of a showing of interest determined?

    (a) Adequacy. Adequacy of a showing of interest refers to the 
percentage of employees in the unit involved as required by Sec. Sec.  
2422.3(c) and (d) and 2422.8(c)(1).
    (b) Regional Director investigation of showing of interest and 
Decision and Order. The Regional Director will conduct an investigation 
if deemed appropriate. A Regional Director's determination that the 
showing of interest is adequate is final and binding and not subject to 
collateral attack at a representation hearing or on appeal to the 
Authority. If the Regional Director determines that a showing of 
interest is inadequate, the Regional Director will issue a Decision and 
Order dismissing the petition, or denying a request for intervention.


Sec.  2422.10  How do you challenge the validity of a showing of 
interest?

    (a) Validity. Validity questions are raised by challenges to a 
showing of interest on grounds other than adequacy.
    (b) Validity challenge. The Regional Director or any party may 
challenge the validity of a showing of interest.
    (c) When and where validity challenges may be filed. Your 
challenges to the validity of a showing of interest must be in writing 
and filed with the Regional Director or the Hearing Officer before the 
hearing opens, unless you show good cause for granting an extension. If 
no hearing is held, you must file challenges to the validity of a 
showing of interest before action is taken under Sec.  2422.30.
    (d) Contents of validity challenges. Your challenges to the 
validity of a showing of interest must be supported with evidence.
    (e) Regional Director investigation and Decision and Order. The 
Regional Director will conduct an investigation if deemed appropriate. 
The Regional Director's determination that a showing of interest is 
valid is final and binding and is not subject to collateral attack or 
appeal to the Authority. If the Regional Director finds that the 
showing of interest is not valid, the Regional Director will issue a 
Decision and Order dismissing the petition or denying the request to 
intervene.


Sec.  2422.11  How do you challenge the status of a labor organization?

    (a) Basis of challenge to labor organization status. Non-compliance 
with 5 U.S.C. 7103(a)(4) is the only basis on which you may challenge 
the status of a labor organization.
    (b) Format and time for filing a challenge. If you file a challenge 
to the

[[Page 37755]]

status of a labor organization involved in the processing of a petition 
you must do so in writing to the Regional Director or the Hearing 
Officer before the hearing opens, unless you show good cause for 
granting an extension. If no hearing is held, you must file challenges 
before action is taken under Sec.  2422.30.


Sec.  2422.12  What circumstances does the Region consider to determine 
whether your petition is timely filed?

    (a) Election bar. Where there is no certified exclusive 
representative, a petition seeking an election will not be considered 
timely if filed within twelve (12) months of a valid election involving 
the same unit or a subdivision of the same unit.
    (b) Certification bar. Where there is a certified exclusive 
representative of employees, a petition seeking an election will not be 
considered timely if filed within twelve (12) months after the 
certification of the exclusive representative of the employees in an 
appropriate unit. If a collective bargaining agreement covering the 
claimed unit is pending agency head review under 5 U.S.C. 7114(c) or is 
in effect, paragraphs (c), (d), or (e) of this section apply.
    (c) Bar during 5 U.S.C. 7114(c) agency head review. A petition 
seeking an election will not be considered timely if filed during the 
period of agency head review under 5 U.S.C. 7114(c). This bar expires 
upon either the passage of thirty (30) days absent agency head action, 
or upon the date of any timely agency head action.
    (d) Contract bar where the contract is for three (3) years or less. 
Where a collective bargaining agreement is in effect covering the 
claimed unit and has a term of three (3) years or less from the date it 
became effective, a petition seeking an election will be considered 
timely if filed not more than one hundred and five (105) and not less 
than sixty (60) days before the expiration of the agreement.
    (e) Contract bar where the contract is for more than three (3) 
years. Where a collective bargaining agreement is in effect covering 
the claimed unit and has a term of more than three (3) years from the 
date on which it became effective, a petition seeking an election will 
be considered timely if filed not more than one hundred and five (105) 
and not less than sixty (60) days before the expiration of the initial 
three (3) year period, and any time after the expiration of the initial 
three (3) year period.
    (f) Unusual circumstances. A petition seeking an election or a 
determination relating to representation matters may be filed at any 
time when unusual circumstances exist that substantially affect the 
unit or majority representation.
    (g) Premature extension. Where a collective bargaining agreement 
with a term of three (3) years or less has been extended before sixty 
(60) days before its expiration date, the extension will not serve as a 
basis for dismissal of a petition seeking an election filed in 
accordance with this section.
    (h) Contract requirements. Collective bargaining agreements, 
including agreements that go into effect under 5 U.S.C. 7114(c) and 
those that automatically renew without further action by the parties, 
are not a bar to a petition seeking an election under this section 
unless a clear effective date, renewal date where applicable, duration, 
and termination date are ascertainable from the agreement and relevant 
accompanying documentation.


Sec.  2422.13  How are issues raised by your petition resolved?

    (a) Meetings before filing a representation petition. All parties 
affected by the representation issues that may be raised in a petition 
are encouraged to meet before the filing of the petition to discuss 
their interests and narrow and resolve the issues. If requested by all 
parties, a representative of the appropriate Regional Office will 
participate in these meetings.
    (b) Meetings to narrow and resolve the issues after the petition is 
filed. The Regional Director may require all affected parties to meet 
to narrow and resolve the issues raised in the petition.


Sec.  2422.14  What is the effect of your withdrawal or the Regional 
Director's dismissal of a petition?

    (a) Withdrawal/dismissal less than sixty (60) days before contract 
expiration. (1) If you withdraw a timely filed petition seeking an 
election, or the Regional Director dismisses the petition less than 
sixty (60) days before the existing agreement between the incumbent 
exclusive representative and the agency or activity expires, or any 
time after the agreement expires, another petition that seeks an 
election will not be considered timely if filed within a ninety (90) 
day period beginning with either:
    (i) The date on which the Regional Director approves the 
withdrawal; or
    (ii) The date on which the Regional Director dismisses the petition 
when the Authority does not receive an application for review; or
    (iii) The date on which the Authority rules on an application for 
review.
    (2) Other pending petitions that have been timely filed under this 
part will continue to be processed.
    (b) Withdrawal by petitioner. If you submit a withdrawal request 
for a petition seeking an election that the Regional Director receives 
after the notice of hearing issues or after approval of an election 
agreement, whichever occurs first, you will be barred from filing 
another petition seeking an election for the same unit or any 
subdivision of the unit for six (6) months from the date on which the 
Regional Director approves the withdrawal.
    (c) Withdrawal by incumbent. When an election is not held because 
the incumbent disclaims any representation interest in a unit, an 
incumbent's petition seeking an election involving the same unit or a 
subdivision of the same unit will be considered untimely if filed 
within six (6) months of cancellation of the election.


Sec.  2422.15  Do parties have a duty to provide information and 
cooperate after a petition is filed?

    (a) Relevant information. After you file a petition, all parties 
must, upon request of the Regional Director, provide the Regional 
Director and serve all parties affected by issues raised in the 
petition with information concerning parties, issues, and agreements 
raised in or affected by the petition.
    (b) Inclusions and exclusions. After you file a petition seeking an 
election, the Regional Director may direct the agency or activity to 
provide the Regional Director and all parties affected by issues raised 
in the petition with a current alphabetized list of employees and job 
classifications included in and/or excluded from the existing or 
claimed unit affected by issues raised in the petition.
    (c) Cooperation. All parties are required to cooperate in every 
aspect of the representation process. This obligation includes 
cooperating fully with the Regional Director, submitting all required 
and requested information, and participating in prehearing conferences 
and hearings. The Regional Director may take appropriate action, 
including dismissal of the petition or denial of intervention, if 
parties fail to cooperate in the representation process.


Sec.  2422.16  May parties enter into election agreements, and if they 
do not will the Regional Director direct an election?

    (a) Election agreements. Parties are encouraged to enter into 
election agreements.
    (b) Regional Director directed election. If the parties are unable 
to agree on procedural matters, specifically, the eligibility period, 
method of election, dates, hours, or

[[Page 37756]]

locations of the election, the Regional Director will decide election 
procedures and issue a Direction of Election, without prejudice to the 
rights of a party to file objections to the procedural conduct of the 
election.
    (c) Opportunity for a hearing. Before directing an election, the 
Regional Director must provide affected parties an opportunity for a 
hearing on non-procedural matters, and then may:
    (1) Issue a Decision and Order; or
    (2) If there are no questions regarding unit appropriateness, issue 
a Direction of Election without a Decision and Order.
    (d) Challenges or objections to a directed election. A Direction of 
Election issued under this section will be issued without prejudice to 
the right of a party to file a challenge to the eligibility of any 
person participating in the election and/or objections to the election.


Sec.  2422.17  What are a notice of hearing and prehearing conference?

    (a) Purpose of notice of a hearing. The Regional Director may issue 
a notice of hearing involving any issues raised in the petition.
    (b) Contents. The notice of hearing will advise affected parties 
about the hearing. The Regional Director will also notify affected 
parties of the issues raised in the petition and establish a date for 
the prehearing conference.
    (c) Prehearing conference. A prehearing conference will be 
conducted by the Hearing Officer, either by meeting or teleconference. 
All parties must participate in a prehearing conference and be prepared 
to fully discuss, narrow, and resolve the issues set forth in the 
notification of the prehearing conference.
    (d) No interlocutory appeal of hearing determination. A party may 
not appeal to the Authority a Regional Director's determination of 
whether to issue a notice of hearing.


Sec.  2422.18  What is the purpose of a representation hearing and what 
procedures are followed?

    (a) Purpose of a hearing. Representation hearings are considered 
investigatory and not adversarial. The purpose of the hearing is to 
develop a full and complete record of relevant and material facts.
    (b) Conduct of hearing. Hearings will be open to the public unless 
otherwise ordered by the Hearing Officer. There is no burden of proof, 
with the exception of proceedings on objections to elections under 
Sec.  2422.27(b). Formal rules of evidence do not apply.
    (c) Hearing officer. The Regional Director appoints a hearing 
officer to conduct a hearing. Another hearing officer may be 
substituted for the presiding Hearing Officer at any time.
    (d) Transcript. An official reporter will make the official 
transcript of the hearing. Copies of the official transcript may be 
examined in the appropriate Regional Office during normal working 
hours. Parties should contact the official hearing reporter to purchase 
copies of the official transcript.


Sec.  2422.19  When is it appropriate for a party to file a motion at a 
representation hearing?

    (a) Purpose of a motion. After the Regional Director issues a 
Notice of Hearing in a representation proceeding, a party who seeks a 
ruling, an order, or relief must do so by filing or raising a motion 
stating the order or relief sought and the grounds in support. The 
Regional Director or Hearing Officer may treat challenges and other 
filings referenced in other sections of this subpart as a motion.
    (b) Prehearing motions. Parties must file prehearing motions in 
writing with the Regional Director. Any response must be filed with the 
Regional Director within five (5) days after service of the motion. The 
Regional Director may rule on the motion or refer the motion to the 
Hearing Officer.
    (c) Motions made at the hearing. During the hearing, parties may 
make oral motions on the record to the Hearing Officer unless required 
to be in writing. Responses may be oral on the record or in writing, 
but must be provided before the hearing closes, absent permission of 
the Hearing Officer. When appropriate, the Hearing Officer will rule on 
motions made at the hearing or referred to the Hearing Officer by the 
Regional Director.
    (d) Posthearing motions. Parties must file motions made after the 
hearing closes in writing with the Regional Director. Any response to a 
posthearing motion must be filed with the Regional Director within five 
(5) days after service of the motion.


Sec.  2422.20  What rights do parties have at a hearing?

    (a) Rights. A party at a hearing will have the right:
    (1) To appear in person or by a representative;
    (2) To examine and cross-examine witnesses; and
    (3) To introduce into the record relevant evidence.
    (b) Documentary evidence and stipulations. Parties must submit two 
(2) copies of documentary evidence to the Hearing Officer and copies to 
all other parties. Stipulations of fact between the parties may be 
introduced into evidence.
    (c) Oral argument. Parties will have a reasonable period before the 
close of the hearing for oral argument. Presentation of a closing oral 
argument does not preclude a party from filing a brief under paragraph 
(d) of this section.
    (d) Briefs. A party will be given an opportunity to file a brief 
with the Regional Director.
    (1) A party must file an original and two (2) copies of a brief 
with the Regional Director within thirty (30) days from the close of 
the hearing.
    (2) No later than five (5) days before the date the brief is due a 
party must file and the Regional Director must receive a written 
request for an extension of time to file a brief.
    (3) Absent the Regional Director's permission, parties may not file 
a reply brief.


Sec.  2422.21  What are the duties and powers of the Hearing Officer?

    (a) Duties of the Hearing Officer. The Hearing Officer receives 
evidence and inquires fully into the relevant and material facts 
concerning the matters that are the subject of the hearing. The Hearing 
Officer may make recommendations on the record to the Regional 
Director.
    (b) Powers of the Hearing Officer. After the Regional Director 
assigns a case to a Hearing Officer and before the close of the 
hearing, the Hearing Officer may take any action necessary to schedule, 
conduct, continue, control, and regulate the hearing, including ruling 
on motions when appropriate.


Sec.  2422.22  What are objections and exceptions concerning the 
conduct of the hearing?

    (a) Objections. Objections are oral or written complaints 
concerning the conduct of a hearing.
    (b) Exceptions to rulings. There are automatic exceptions to all 
adverse rulings.


Sec.  2422.23  What election procedures are followed?

    (a) Regional Director conducts or supervises election. The Regional 
Director will decide to either conduct or supervise the election. In 
supervised elections, agencies will perform all acts as specified in 
the Election Agreement or Direction of Election.
    (b) Notice of election. Before the election the activity posts a 
notice of election, prepared by the Regional Director. The notice is 
posted in places where notices to employees are customarily posted and/
or distributed in a manner by which notices are normally distributed. 
The notice of election contains the details and procedures of the 
election, including the appropriate

[[Page 37757]]

unit, the eligibility period, the date(s), hour(s) and location(s) of 
the election, a sample ballot, and the effect of the vote.
    (c) Sample ballot. The reproduction of any document that claims to 
be a copy of the official ballot and that suggests either directly or 
indirectly to employees that the Authority endorses a particular choice 
in the election may constitute grounds for setting aside an election if 
objections are filed under Sec.  2422.26.
    (d) Secret ballot. All elections are by secret ballot.
    (e) Intervenor withdraws from ballot. When two or more labor 
organizations are included as choices in an election, an intervening 
labor organization may, before the approval of an election agreement or 
before the direction of an election, file a written request with the 
Regional Director to remove its name from the ballot. If the Regional 
Director does not receive the request before the approval of an 
election agreement or before the direction of an election, the 
intervening labor organization will remain on the ballot, unless the 
parties and the Regional Director agree otherwise. The Regional 
Director's decision on the request is final, and no party may file an 
application for review with the Authority.
    (f) Incumbent withdrawal from ballot in an election to decertify an 
incumbent representative. When there is no intervening labor 
organization, an election to decertify an incumbent exclusive 
representative is not held if the incumbent provides the Regional 
Director with a written disclaimer of any representation interest in 
the unit. When there is an intervenor, an election is held if the 
intervening labor organization proffers a thirty percent (30%) showing 
of interest within the time period established by the Regional 
Director.
    (g) Petitioner withdraws from ballot in an election. When there is 
no intervening labor organization, an election is not held if the 
petitioner provides the Regional Director with a written request to 
withdraw the petition. When there is an intervenor, an election is held 
if the intervening labor organization presents a thirty percent (30%) 
showing of interest within the time period established by the Regional 
Director.
    (h) Observers. Subject to the Regional Director's approval, all 
parties may select representatives to observe at the polling 
location(s).
    (1) A party who wants to name observers must file a written request 
with specific names with the Regional Director. This must be filed at 
least fifteen (15) days before an election. The Regional Director may 
grant an extension of time to file a request for named observers for 
good cause where a party requests an extension or on the Regional 
Director's own motion. The request must name and identify the observers 
requested.
    (2) An agency or activity may use as its observers any employees 
who are not eligible to vote in the election, except:
    (i) Supervisors or management officials;
    (ii) Employees who have any official connection with any of the 
labor organizations involved; or
    (iii) Non-employees of the Federal government.
    (3) A labor organization may use as its observers any employees 
eligible to vote in the election, except:
    (i) Employees on leave without pay status who are working for the 
labor organization involved; or
    (ii) Employees who hold an elected office in the union.
    (4) Within five (5) days after service of the request for 
observers, any party that objects must file an objection with the 
Regional Director that states the reasons.
    (5) The Regional Director's ruling on requests for and objections 
to observers is final and binding, and parties may not file an 
application for review with the Authority.


Sec.  2422.24  What are challenged ballots?

    (a) Filing challenges. A party or the Regional Director may, for 
good cause, challenge the eligibility of any person to participate in 
the election.
    (b) Challenged ballot procedure. An individual whose eligibility to 
vote is in dispute will be given the opportunity to vote a challenged 
ballot. If the parties and the Region are unable to resolve the 
challenged ballot(s) before the tally of ballots, the Region will 
impound and preserve the unresolved challenged ballot(s) until the 
Regional Director makes a determination, if necessary.


Sec.  2422.25  When does the Region tally the ballots?

    (a) Tallying the ballots. When the election is concluded, the 
Regional Director will tally the ballots.
    (b) Service of the tally. When the tally is completed, the Regional 
Director will serve the tally of ballots on the parties in accordance 
with the election agreement or direction of election.
    (c) Valid ballots cast. Representation will be determined by the 
majority of the valid ballots cast.


Sec.  2422.26  How are objections to the election processed?

    (a) Filing objections to the election. Any party may file 
objections to the procedural conduct of the election or to conduct that 
may have improperly affected the results of the election. A party must 
file an objection and the Regional Director must receive it within five 
(5) days after the tally of ballots has been served. Any objections 
must be timely regardless of whether the challenged ballots are 
sufficient in number to affect the results of the election. The 
objections must be supported by clear and concise reasons. A party must 
file an original and two (2) copies of the objections.
    (b) Supporting evidence. The objecting party must file evidence, 
including signed statements, documents, and other materials supporting 
the objections, with the Regional Director within ten (10) days after 
the party files the objections.


Sec.  2422.27  How does the Region address determinative challenged 
ballots and objections?

    (a) Investigation. The Regional Director investigates objections 
and/or determinative challenged ballots that are sufficient in number 
to affect the results of the election.
    (b) Burden of proof. An objecting party bears the burden of proof 
on objections by a preponderance of the evidence. However, no party 
bears the burden of proof on challenged ballots.
    (c) Regional Director action. After investigation, the Regional 
Director takes appropriate action consistent with Sec.  2422.30.
    (d) Consolidated hearing on objections and/or determinative 
challenged ballots and an unfair labor practice hearing. When 
appropriate, and under Sec.  2422.33, a Regional Director may 
consolidate objections and/or determinative challenged ballots with an 
unfair labor practice hearing. An Administrative Law Judge conducts 
these consolidated hearings, except the following provisions do not 
apply:
    (1) Sections 2423.18 and 2423.19(j) of this subchapter concerning 
the burden of proof and settlement conferences are not applicable;
    (2) The Administrative Law Judge may not recommend remedial action 
to be taken or notices to be posted as provided by Sec.  2423.26(a) of 
this subchapter.
    (e) Party exceptions filed with the Authority. A party may file 
exceptions and related submissions with the Authority, and the 
Authority then issues a decision under part 2423 of this chapter.


Sec.  2422.28  When is a runoff election required?

    (a) When a runoff may be held. A runoff election is required in an 
election

[[Page 37758]]

involving at least three (3) choices, one of which is ``no union'' or 
``neither,'' when no choice receives a majority of the valid ballots 
cast. However, a runoff may not be held until the Regional Director has 
ruled on objections to the election and determinative challenged 
ballots.
    (b) Eligibility. Employees who were eligible to vote in the 
original election and who are also eligible on the date of the runoff 
election may vote in the runoff election.
    (c) Ballot. The ballot in the runoff election will provide for a 
selection between the two choices receiving the highest and second 
highest number of votes in the election.


Sec.  2422.29  How does the Region address an inconclusive election?

    (a) Inconclusive elections. An inconclusive election is one where 
challenged ballots are not sufficient to affect the outcome of the 
election and one of the following occurs:
    (1) The ballot provides for at least three (3) choices, one of 
which is ``no union'' or ``neither,'' and the votes are equally 
divided; or
    (2) The ballot provides for at least three (3) choices, the choice 
receiving the highest number of votes does not receive a majority, and 
at least two other choices receive the next highest and same number of 
votes; or
    (3) When a runoff ballot provides for a choice between two labor 
organizations and results in the votes being equally divided; or
    (4) When the Regional Director determines that there have been 
significant procedural irregularities.
    (b) Eligibility to vote in a rerun election. The Region uses the 
latest payroll period to determine eligibility to vote in a rerun 
election.
    (c) Ballot. If the Regional Director determines that the election 
is inconclusive, the election will be rerun with all the choices that 
appeared on the original ballot.
    (d) Number of reruns. There will be only one rerun of an 
inconclusive election. If the rerun results in another inconclusive 
election, the tally of ballots will show a majority of valid ballots 
has not been cast for any choice, and the Regional Director will issue 
a certification of results. If necessary, a runoff may be held when an 
original election is rerun.


Sec.  2422.30  When does a Regional Director investigate a petition, 
issue notices of hearings, take actions, and issue Decisions and 
Orders?

    (a) Regional Director investigation. The Regional Director will 
investigate the petition and any other matter as the Regional Director 
deems necessary.
    (b) Regional Director notice of hearing. The Regional Director will 
issue a notice of hearing to inquire into any matter about which a 
material issue of fact exists, and any time there is reasonable cause 
to believe a question exists regarding unit appropriateness.
    (c) Regional Director action. After investigation or hearing, the 
Regional Director can direct an election, or approve an election 
agreement, or issue a Decision and Order.
    (d) Appeal of Regional Director Decision and Order. A party may 
file with the Authority an application for review of a Regional 
Director Decision and Order.
    (e) Contents of the Record. When there has not been a hearing all 
material submitted to and considered by the Regional Director during 
the investigation becomes a part of the record. When a hearing has been 
held, the transcript and all material entered into evidence, including 
any posthearing briefs, become a part of the record.


Sec.  2422.31   When do you file an application for review of a 
Regional Director Decision and Order?

    (a) Filing an application for review. A party must file an 
application for review with the Authority within sixty (60) days of the 
Regional Director's Decision and Order. The sixty (60) day time limit 
under 5 U.S.C. 7105(f) may not be extended or waived. The filing party 
must serve a copy on the Regional Director and all other parties, and 
must also file a statement of service with the Authority.
    (b) Contents. An application for review must be sufficient for the 
Authority to rule on the application without looking at the record. 
However, the Authority may, in its discretion, examine the record in 
evaluating the application. An application must specify the matters and 
rulings to which exception(s) is taken, include a summary of evidence 
relating to any issue raised in the application, and make specific 
references to page citations in the transcript if a hearing was held. 
An application may not raise any issue or rely on any facts not timely 
presented to the Hearing Officer or Regional Director.
    (c) Review. The Authority may grant an application for review only 
when the application demonstrates that review is warranted on one or 
more of the following grounds:
    (1) The decision raises an issue for which there is an absence of 
precedent;
    (2) Established law or policy warrants reconsideration; or,
    (3) There is a genuine issue over whether the Regional Director 
has:
    (i) Failed to apply established law;
    (ii) Committed a prejudicial procedural error; or
    (iii) Committed a clear and prejudicial error concerning a 
substantial factual matter.
    (d) Opposition. A party may file with the Authority an opposition 
to an application for review within ten (10) days after the party is 
served with the application. The opposing party must serve a copy on 
the Regional Director and all other parties, and must also file a 
statement of service with the Authority.
    (e) Regional Director Decision and Order becomes the Authority's 
action. A Decision and Order of a Regional Director becomes the action 
of the Authority when:
    (1) No party files an application for review with the Authority 
within sixty (60) days after the date of the Regional Director's 
Decision and Order; or
    (2) A party files a timely application for review with the 
Authority and the Authority does not undertake to grant review of the 
Regional Director's Decision and Order within sixty (60) days of the 
filing of the application; or
    (3) The Authority denies an application for review of the Regional 
Director's Decision and Order.
    (f) Authority grant of review and stay. The Authority may rule on 
the issue(s) in an application for review in its order granting the 
application for review. Neither filing nor granting an application for 
review will stay any action ordered by the Regional Director unless 
specifically ordered by the Authority.
    (g) Briefs if review is granted. If the Authority does not rule on 
the issue(s) in the application for review in its order granting 
review, the Authority may, in its discretion, give the parties an 
opportunity to file briefs. The briefs will be limited to the issue(s) 
referenced in the Authority's order granting review.


Sec.  2422.32  When does a Regional Director issue a certification or a 
revocation of certification?

    (a) Certifications. The Regional Director issues an appropriate 
certification when:
    (1) After an election, runoff, or rerun,
    (i) No party files an objection or challenged ballots are not 
determinative, or
    (ii) The Region decides and resolves objections and determinative 
challenged ballots; or
    (2) The Regional Director issues a Decision and Order requiring a

[[Page 37759]]

certification and the Decision and Order becomes the action of the 
Authority under Sec.  2422.31(e) or the Authority directs the issuance 
of a certification.
    (b) Revocations. Without prejudice to any rights and obligations 
that may exist under the Statute, the Regional Director revokes a 
recognition or certification, as appropriate, and provides a written 
statement of reasons when:
    (1) An incumbent exclusive representative files, during a 
representation proceeding, a disclaimer of any representational 
interest in the unit; or
    (2) Due to a substantial change in the character and scope of the 
unit, the unit is no longer appropriate and an election is not 
warranted.


Sec.  2422.33  Relief under part 2423 of this chapter.

    Remedial relief that was or could have been obtained as a result of 
a motion, objection, or challenge filed or raised under this subpart, 
may not be the basis for similar relief under part 2423 of this 
chapter: But related matters may be consolidated for hearing as noted 
in Sec.  2422.27(d) of this subpart.


Sec.  2422.34  What are the parties' rights and obligations when a 
representation proceeding is pending?

    (a) Existing recognitions, agreements, and obligations under the 
Statute. When a representation proceeding is pending, parties must 
maintain existing recognitions, follow the terms and conditions of 
existing collective bargaining agreements, and fulfill all other 
representational and bargaining responsibilities under the Statute.
    (b) Unit status of individual employees. A party may take action 
based on its position regarding the bargaining unit status of 
individual employees, under 3 U.S.C. 431(d)(2), 5 U.S.C. 7103(a)(2), 
and 7112(b) and (c). But its actions may be challenged, reviewed, and 
remedied where appropriate.

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

0
2. Section 2423.0 is revised to read as follows:


Sec.  2423.0  Applicability of this part.

    This part applies to any unfair labor practice cases that are 
pending or filed with the FLRA on or after July 25, 2012.

0
3. Subpart A is revised to read as follows:
Subpart A--Filing, Investigating, Resolving, and Acting on Charges
Sec.
2423.1 Can a Regional Office help the parties resolve unfair labor 
practice disputes before a Regional Director decides whether to 
issue a complaint?
2423.2 What Alternative Dispute Resolution (ADR) services does the 
OGC provide?
2423.3 Who may file charges?
2423.4 What must you state in the charge and what supporting 
evidence and documents should you submit?
2423.5 [Reserved]
2423.6 What is the process for filing and serving copies of charges?
2423.7 [Reserved]
2423.8 How are charges investigated?
2423.9 How are charges amended?
2423.10 What actions may the Regional Director take with regard to 
your charge?
2423.11 What happens if a Regional Director decides not to issue a 
complaint?
2423.12 What types of settlements of unfair labor practice charges 
are possible after a Regional Director decides to issue a complaint 
but before issuance of a complaint?
2423.13-2423.19 [Reserved]

Subpart A--Filing, Investigating, Resolving, and Acting on Charges


Sec.  2423.1  Can a Regional Office help the parties resolve unfair 
labor practice disputes before a Regional Director decides whether to 
issue a complaint?

    (a) Resolving unfair labor practice disputes before filing a 
charge. The purposes and policies of the Federal Service Labor-
Management Relations Statute (Statute) can best be achieved by the 
collaborative efforts of all persons covered by that law. The General 
Counsel encourages all persons to meet and, in good faith, attempt to 
resolve unfair labor practice disputes before filing unfair labor 
practice charges. If requested, and the parties agree, a representative 
of the Regional Office, in appropriate circumstances, may participate 
in these meetings to assist the parties to identify the issues and 
their interests and to resolve the dispute. Parties' attempts to 
resolve unfair labor practice disputes before filing an unfair labor 
practice charge do not toll the time limitations for filing a charge 
set forth at 5 U.S.C. 7118(a)(4).
    (b) Resolving unfair labor practice disputes after filing a charge. 
The General Counsel encourages the informal resolution of unfair labor 
practice allegations after a charge is filed and before the Regional 
Director makes a merit determination. A representative of the 
appropriate Regional Office, as part of the investigation, may assist 
the parties in informally resolving their dispute.


Sec.  2423.2  What Alternative Dispute Resolution (ADR) services does 
the OGC provide?

    (a) Purpose of ADR services. The Office of the General Counsel 
furthers its mission and implements the agency-wide Federal Labor 
Relations Authority Collaboration and Alternative Dispute Resolution 
Program by promoting stable and productive labor-management 
relationships governed by the Statute and by providing services that 
assist labor organizations and agencies, on a voluntary basis, to:
    (1) Develop collaborative labor-management relationships;
    (2) Avoid unfair labor practice disputes; and
    (3) Informally resolve unfair labor practice disputes.
    (b) Types of ADR Services. Agencies and labor organizations may 
jointly request, or agree to, the provision of the following services 
by the Office of the General Counsel:
    (1) Facilitation. Assisting the parties in improving their labor-
management relationship as governed by the Statute;
    (2) Intervention. Intervening when parties are experiencing or 
expect significant unfair labor practice disputes;
    (3) Training. Training labor organization officials and agency 
representatives on their rights and responsibilities under the Statute 
and how to avoid litigation over those rights and responsibilities, and 
on using problem-solving and ADR skills, techniques, and strategies to 
resolve informally unfair labor practice disputes; and
    (4) Education. Working with the parties to recognize the benefits 
of, and establish processes for, avoiding unfair labor practice 
disputes, and resolving any unfair labor practice disputes that arise 
by consensual, rather than adversarial, methods.
    (c) ADR services after initiation of an investigation. As part of 
processing an unfair labor practice charge, the Office of the General 
Counsel may suggest to the parties, as appropriate, that they may 
benefit from these ADR services.


Sec.  2423.3  Who may file charges?

    (a) Filing charges. Any person may charge an activity, agency, or 
labor organization with having engaged in, or engaging in, any unfair 
labor practice prohibited under 5 U.S.C. 7116.
    (b) Charging Party. Charging Party means the individual, labor 
organization, activity, or agency filing an unfair labor practice 
charge with a Regional Director.
    (c) Charged Party. Charged Party means the activity, agency, or 
labor organization charged with allegedly having engaged in, or 
engaging in, an unfair labor practice.

[[Page 37760]]

Sec.  2423.4  What must you state in the charge and what supporting 
evidence and documents should you submit?

    (a) What to file. You, the Charging Party, may file a charge 
alleging a violation of 5 U.S.C. 7116 by providing the following 
information on a form designated by the General Counsel, or on a 
substantially similar form, or electronically through the use of the 
eFiling system on the FLRA's Web site at www.flra.gov, or by facsimile 
transmission:
    (1) The Charging Party's name and mailing address, including street 
number, city, state, and zip code;
    (2) The Charged Party's name and mailing address, including street 
number, city, state, and zip code;
    (3) The Charging Party's point of contact's name, address, 
telephone number, facsimile number, if known, and email address, if 
known;
    (4) The Charged Party's point of contact's name, address, telephone 
number, facsimile number, if known, and email address, if known;
    (5) A clear and concise statement of the facts alleged to 
constitute an unfair labor practice, a statement of how those facts 
allegedly violate specific section(s) and paragraph(s) of the Statute, 
and the date and place of occurrence of the particular acts; and
    (6) A statement whether the subject matter raised in the charge:
    (i) Has been raised previously in a grievance procedure;
    (ii) Has been referred to the Federal Service Impasses Panel, the 
Federal Mediation and Conciliation Service, the Equal Employment 
Opportunity Commission, the Merit Systems Protection Board, or the 
Office of Special Counsel for consideration or action;
    (iii) Involves a negotiability issue that you raised in a petition 
pending before the Authority under part 2424 of this subchapter; or
    (iv) Has been the subject of any other administrative or judicial 
proceeding.
    (7) A statement describing the result or status of any proceeding 
identified in paragraph (a)(6) of this section.
    (b) When and how to file. Under 5 U.S.C. 7118(a)(4), a charge 
alleging an unfair labor practice must be in writing and signed or 
filed electronically using the eFiling system on the FLRA's Web site at 
www.flra.gov. It is normally filed within six (6) months of its 
occurrence unless one of the two (2) circumstances described under 
paragraph (B) of 5 U.S.C. 7118(a)(4) applies.
    (c) Declarations of truth and statement of service. A charge must 
also contain a declaration by the individual signing the charge, under 
the penalties of the Criminal Code (18 U.S.C. 1001), that its contents 
are true and correct to the best of that individual's knowledge and 
belief.
    (d) Statement of service. You must also state that you served the 
charge on the Charged Party, and you must list the name, title and 
location of the individual served, and the method of service.
    (e) Self-contained document. A charge must be a self-contained 
document describing the alleged unfair labor practice without a need to 
refer to supporting evidence and documents submitted under paragraph 
(f) of this section.
    (f) Submitting supporting evidence and documents and identifying 
potential witnesses. When filing a charge, you must submit to the 
Regional Director any supporting evidence and documents, including, but 
not limited to, correspondence and memoranda, records, reports, 
applicable collective bargaining agreement clauses, memoranda of 
understanding, minutes of meetings, applicable regulations, statements 
of position, and other documentary evidence. You also must identify 
potential witnesses with contact information (telephone number, email 
address, and facsimile number) and provide a brief synopsis of their 
expected testimony.


Sec.  2423.5  [Reserved]


Sec.  2423.6  What is the process for filing and serving copies of 
charges?

    (a) Where to file. You must file the charge with the Regional 
Director for the region in which the alleged unfair labor practice has 
occurred or is occurring. A charge alleging that an unfair labor 
practice has occurred or is occurring in two or more regions may be 
filed with the Regional Director in any of those regions.
    (b) Date of filing. When a Regional Director receives a charge, it 
is deemed filed. A charge filed during business hours by facsimile or 
electronic means is deemed received on the business day on which it is 
received (either by the Regional Office fax machine or by the eFiling 
system), until midnight local time in the Region where it is filed. But 
when a Region receives a charge after the close of the business day by 
any other method, it will be deemed received and docketed on the next 
business day. The business hours for each of the Regional Offices are 
set forth at https://www.FLRA.gov.
    (c) Method of filing. You may file a charge with the Regional 
Director in person or by commercial delivery, first class mail, 
certified mail, facsimile, or electronically through use of the eFiling 
system on the FLRA's Web site at www.flra.gov. If filing by facsimile 
transmission or by electronic means, you are not required to file an 
original copy of the charge with the Region. You assume responsibility 
for the Regional Director's receipt of a charge. Supporting evidence 
and documents must be submitted to the Regional Director in person, by 
commercial delivery, first class mail, certified mail, facsimile 
transmission, or through the FLRA's eFiling system.
    (d) Service of the charge. You must serve a copy of the charge 
(without supporting evidence and documents) on the Charged Party. Where 
facsimile equipment is available, you may serve the charge by facsimile 
transmission, as paragraph (c) of this section discusses. 
Alternatively, you may serve the charge by electronic mail (``email''), 
but only if the Charged Party has agreed to be served by email. The 
Region routinely serves a copy of the charge on the Charged Party, but 
you remain responsible for serving the charge, consistent with the 
requirements in this paragraph.


Sec.  2423.7  [Reserved]


Sec.  2423.8  How are charges investigated?

    (a) Investigation. The Regional Director, on behalf of the General 
Counsel, conducts an investigation of the charge as deemed necessary. 
During the course of the investigation, all parties involved are given 
an opportunity to present their evidence and views to the Regional 
Director.
    (b) Cooperation. The purposes and policies of the Statute can best 
be achieved by the parties' full cooperation and their timely 
submission of all relevant information from all potential sources 
during the investigation. All persons must cooperate fully with the 
Regional Director in the investigation of charges. A failure to 
cooperate during the investigation of a charge may provide grounds to 
dismiss a charge for failure to produce evidence supporting the charge. 
Cooperation includes any of the following actions, when deemed 
appropriate by the Regional Director:
    (1) Making union officials, employees, and agency supervisors and 
managers available to give sworn/affirmed testimony regarding matters 
under investigation;
    (2) Producing documentary evidence pertinent to the matters under 
investigation;
    (3) Providing statements of position on the matters under 
investigation; and

[[Page 37761]]

    (4) Responding to an agent's communications during an investigation 
in a timely manner.
    (c) Investigatory subpoenas. If a person fails to cooperate with 
the Regional Director in the investigation of a charge, the General 
Counsel, upon recommendation of a Regional Director, may decide in 
appropriate circumstances to issue a subpoena under 5 U.S.C. 7132 for 
the attendance and testimony of witnesses and the production of 
documentary or other evidence. However, no subpoena, which requires the 
disclosure of intramanagement guidance, advice, counsel, or training 
within an agency or between an agency and the Office of Personnel 
Management, will issue under this section.
    (1) A subpoena can only be served by any individual who is at least 
18 years old and who is not a party to the proceeding. The individual 
who served the subpoena must certify that he or she did so:
    (i) By delivering it to the witness in person;
    (ii) By registered or certified mail; or
    (iii) By delivering the subpoena to a responsible individual (named 
in the document certifying the delivery) at the residence or place of 
business (as appropriate) of the person for whom the subpoena was 
intended. The subpoena must show on its face the name and address of 
the Regional Director and the General Counsel.
    (2) Any person served with a subpoena who does not intend to comply 
must, within 5 days after the date of service of the subpoena upon such 
person, petition in writing to revoke the subpoena. A copy of any 
petition to revoke must be served on the General Counsel.
    (3) The General Counsel must revoke the subpoena if the witness or 
evidence, the production of which is required, is not material and 
relevant to the matters under investigation or in question in the 
proceedings, or the subpoena does not describe with sufficient 
particularity the evidence the production of which is required, or if 
for any other reason sufficient in law the subpoena is invalid. The 
General Counsel must state the procedural or other grounds for the 
ruling on the petition to revoke. The petition to revoke becomes part 
of the official record if there is a hearing under subpart C of this 
part.
    (4) Upon the failure of any person to comply with a subpoena issued 
by the General Counsel, the General Counsel must determine whether to 
institute proceedings in the appropriate district court for the 
enforcement of the subpoena. Enforcement must not be sought if to do so 
would be inconsistent with law, including the Statute.
    (d) Confidentiality. It is the General Counsel's policy to protect 
the identity of individuals who submit statements and information 
during the investigation, and to protect against the disclosure of 
documents obtained during the investigation, to ensure the General 
Counsel's ability to obtain all relevant information. However, after a 
Regional Director issues a complaint and when necessary to prepare for 
a hearing, the Region may disclose the identification of witnesses, a 
synopsis of their expected testimony, and documents proposed to be 
offered into evidence at the hearing, as required by the prehearing 
disclosure requirements in Sec.  2423.23.


Sec.  2423.9  How are charges amended?

    Before the issuance of a complaint, the Charging Party may amend 
the charge under the requirements set forth in Sec.  2423.6.


Sec.  2423.10  What actions may the Regional Director take with regard 
to your charge?

    (a) Regional Director action. The Regional Director, on behalf of 
the General Counsel, may take any of the following actions, as 
appropriate:
    (1) Approve a request to withdraw a charge;
    (2) Dismiss a charge;
    (3) Approve a written settlement agreement under Sec.  2423.12;
    (4) Issue a complaint; or
    (5) Withdraw a complaint.
    (b) Request for appropriate temporary relief. Parties may request 
the General Counsel to seek appropriate temporary relief (including a 
restraining order) under 5 U.S.C. 7123(d). The General Counsel may 
initiate and prosecute injunctive proceedings under 5 U.S.C. 7123(d) 
only upon approval of the Authority. A determination by the General 
Counsel not to seek approval of the Authority to seek temporary relief 
is final and cannot be appealed to the Authority.
    (c) General Counsel requests to the Authority. When a complaint 
issues and the Authority approves the General Counsel's request to seek 
appropriate temporary relief (including a restraining order) under 5 
U.S.C. 7123(d), the General Counsel may make application for 
appropriate temporary relief (including a restraining order) in the 
district court of the United States within which the unfair labor 
practice is alleged to have occurred or in which the party sought to be 
enjoined resides or transacts business. The General Counsel may seek 
temporary relief if it is just and proper and the record establishes 
probable cause that an unfair labor practice is being committed. 
Temporary relief will not be sought if it would interfere with the 
ability of the agency to carry out its essential functions.
    (d) Actions subsequent to obtaining appropriate temporary relief. 
The General Counsel must inform the district court that granted 
temporary relief under 5 U.S.C. 7123(d) whenever an Administrative Law 
Judge recommends dismissal of the complaint, in whole or in part.


Sec.  2423.11  What happens if a Regional Director decides not to issue 
complaint?

    (a) Opportunity to withdraw a charge. If the Regional Director 
determines that the charge has not been timely filed, that the charge 
fails to state an unfair labor practice, or for other appropriate 
reasons, the Regional Director may request the Charging Party to 
withdraw the charge.
    (b) Dismissal letter. If the Charging Party does not withdraw the 
charge within a reasonable period of time, the Regional Director will 
dismiss the charge and provide the parties with a written statement of 
the reasons for not issuing a complaint.
    (c) Appeal of a dismissal letter. The Charging Party may obtain 
review of the Regional Director's decision to dismiss a charge by 
filing an appeal with the General Counsel, either in writing or by 
email to ogc.appeals@flra.gov, within 25 days after the Regional 
Director served the decision. A Charging Party must serve a copy of the 
appeal on the Regional Director. The General Counsel must serve notice 
on the Charged Party that the Charging Party has filed an appeal.
    (d) Extension of time. The Charging Party may file a request, 
either in writing or by email to ogc.appeals@flra.gov, for an extension 
of time to file an appeal, which must be received by the General 
Counsel not later than five (5) days before the date the appeal is due. 
A Charging Party must serve a copy of the request for an extension of 
time on the Regional Director.
    (e) Grounds for granting an appeal. The General Counsel may grant 
an appeal when the appeal establishes at least one of the following 
grounds:
    (1) The Regional Director's decision did not consider material 
facts that would have resulted in issuance of a complaint;
    (2) The Regional Director's decision is based on a finding of a 
material fact that is clearly erroneous;
    (3) The Regional Director's decision is based on an incorrect 
statement or application of the applicable rule of law;

[[Page 37762]]

    (4) There is no Authority precedent on the legal issue in the case; 
or
    (5) The manner in which the Region conducted the investigation has 
resulted in prejudicial error.
    (f) General Counsel action. The General Counsel may deny the appeal 
of the Regional Director's dismissal of the charge, or may grant the 
appeal and remand the case to the Regional Director to take further 
action. The General Counsel's decision on the appeal states the grounds 
listed in paragraph (e) of this section for denying or granting the 
appeal, and is served on all the parties. Absent a timely motion for 
reconsideration, the General Counsel's decision is final.
    (g) Reconsideration. After the General Counsel issues a final 
decision, the Charging Party may move for reconsideration of the final 
decision if it can establish extraordinary circumstances in its moving 
papers. The motion must be filed within 10 days after the date on which 
the General Counsel's final decision is postmarked. A motion for 
reconsideration must state with particularity the extraordinary 
circumstances claimed and must be supported by appropriate citations. 
The decision of the General Counsel on a motion for reconsideration is 
final.


Sec.  2423.12  What types of settlements of unfair labor practice 
charges are possible after a Regional Director decides to issue a 
complaint but before issuance of a complaint?

    (a) Bilateral informal settlement agreement. Before issuing a 
complaint, the Regional Director may give the Charging Party and the 
Charged Party a reasonable period of time to enter into an informal 
settlement agreement to be approved by the Regional Director. When a 
Charged Party complies with the terms of an informal settlement 
agreement approved by the Regional Director, no further action is taken 
in the case. If the Charged Party fails to perform its obligations 
under the approved informal settlement agreement, the Regional Director 
may institute further proceedings.
    (b) Unilateral informal settlement agreement. If the Charging Party 
elects not to become a party to a bilateral settlement agreement, which 
the Regional Director concludes fulfills the policies of the Statute, 
the Regional Director may choose to approve a unilateral settlement 
between the Regional Director and the Charged Party. The Regional 
Director, on behalf of the General Counsel, must issue a letter stating 
the grounds for approving the settlement agreement and declining to 
issue a complaint. The Charging Party may obtain review of the Regional 
Director's action by filing an appeal with the General Counsel under 
Sec.  2423.11(c) and (d). The General Counsel may grant an appeal when 
the Charging Party has shown that the Regional Director's approval of a 
unilateral settlement agreement does not fulfill the purposes and 
policies of the Statute. The General Counsel must take action on the 
appeal as set forth in Sec.  2423.11(b) through (g).


Sec. Sec.  2423.13-2423.19  [Reserved]

PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS

0
4. The authority citation for part 2429 continues to read as follows:

    Authority:  5 U.S.C. 7134; Sec.  2429.18 also issued under 28 
U.S.C. 2112(a).


0
5. Section 2429.24 is amended by adding paragraphs (f)(12) through 
(f)(14) and revising paragraph (g) to read as follows:


Sec.  2429.24  Place and method of filing; acknowledgement.

* * * * *
    (f) * * *
    (12) Petitions under 5 CFR part 2422.
    (13) Cross-petitions under 5 CFR part 2422.
    (14) Charges under 5 CFR part 2423.
    (g) As another alternative to the methods of filing described in 
paragraph (e) of this section, you may file the following documents by 
facsimile (``fax''), so long as fax equipment is available and your 
entire, individual filing does not exceed 10 pages in total length, 
with normal margins and font sizes. You may file only the following 
documents by fax under this paragraph (g):
    (1) Motions;
    (2) Information pertaining to prehearing disclosure, conferences, 
orders, or hearing dates, times, and locations;
    (3) Information pertaining to subpoenas;
    (4) Appeals of a dismissal of an unfair labor practice charge; and
    (5) Other matters that are similar to those in paragraphs (g)(1) 
through (3) of this section.

    Dated: June 20, 2012.
Julia Akins Clark,
General Counsel.
[FR Doc. 2012-15462 Filed 6-22-12; 8:45 am]
BILLING CODE 6727-01-P