DEFENDANT NATIONAL LABOR RELATIONS BOARD’S … · 2015-03-30 · Case No. 1:15-CV-00026 RP . ......

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS

ASSOCIATED BUILDERS AND CONTRACTORS OF TEXAS, INC., et al., Plaintiffs, v. NATIONAL LABOR RELATIONS BOARD, Defendant.

) ) ) ) ) ) ) ) ) ) )

Case No. 1:15-CV-00026 RP

DEFENDANT NATIONAL LABOR RELATIONS BOARD’S REPLY IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS AND CROSS-

MOTION FOR SUMMARY JUDGMENT NANCY E. KESSLER PLATT Deputy Assistant General Counsel DAWN L. GOLDSTEIN KEVIN P. FLANAGAN Supervisory Attorneys PAUL A. THOMAS DAVID H. MORI MICHAEL ELLEMENT IGOR VOLYNETS Attorneys

BARBARA A. O’NEILL Assistant General Counsel for Contempt, Compliance, and Special Litigation Phone: (202) 273-2958 Fax: (202) 273-4244 E-mail: [email protected] National Labor Relations Board 1099 14th Street, NW, Suite 10700 Washington, D.C. 20570

Case 1:15-cv-00026-RP Document 29 Filed 03/27/15 of 13

mailto:[email protected]

As the National Labor Relations Board (Board) has shown in its Memorandum in Support

of Its Partial Motion to Dismiss and Cross-Motion for Summary Judgment (Bd. MSJ) [Dkt. 24-1],

ABC’s facial statutory challenges to the Board’s representation case procedures rule (Rule) are not

ripe. (Bd. MSJ 3-6). Even if they were ripe, they are without merit (id. at 12-21), as are ABC’s further

contentions that aspects of the Board’s decisionmaking process were “arbitrary” or “capricious”

under the Administrative Procedure Act (id. at 7-11, 22-24). As shown below, ABC’s Opposition

and Reply (Opp.) [Dkt. 26] does not remedy these fundamental and ultimately dispositive flaws.1

I. ABC’s “appropriate hearing” and “time compression” claims are not ripe.

ABC fails to demonstrate the ripeness of its principal claims, namely, that the Rule does not

provide for an “appropriate” pre-election hearing (Amendments (Ams.) 7-10) and impermissibly

streamlines the election process (Ams. 5, 11, 15, and 17). As previously noted, the twin touchstones

of ripeness are fitness for judicial review and hardship if review is denied. (Bd. MSJ 3). The

amendments ABC principally challenges are not fit for review in their current posture, because they

merely authorize the Board’s regional directors (RDs) to exercise case-by-case discretion. Contrary

to ABC’s position (Opp. 2), highly discretionary standards like those at issue are ill-suited for facial

challenges precisely because factual application of those standards would “significantly advance [the

court’s] ability to deal with the legal issues presented.” Texas v. United States, 497 F.3d 491, 498 (5th

Cir. 2007) (alteration in original). ABC cannot, and does not, dispute that the choices of an RD in a

particular election could result in an election process that satisfies all of its criticisms—and under Reno

v. Flores, that fact is fatal to a facial challenge. 507 U.S. 292, 301 (1993). ABC’s rejoinder that it

desires to go beyond “merely challenging individual discretionary acts” (Opp. 2) is a virtual

concession that this suit is precisely the sort of “abstract disagreement over administrative policy”

1 The parties have agreed to amend their prior stipulation [Dkt. 11] so that the Board may file the Joint Appendix on or before March 31, 2015. Citations to the Administrative Record, portions of which will appear in the Joint Appendix with pagination preserved, are preceded by “A.R. NLRB.”

1


that the ripeness inquiry is meant to screen out. Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726,

736 (1998).

Nor is there merit to ABC’s claim (Opp. 3), that it will suffer undue hardship if it can only

obtain as-applied review after it incurs the “economic costs of participation in an election process

that is invalid.” The Supreme Court early established that litigation costs are not the type of hardship

that justifies circumventing the review procedures of the National Labor Relations Act (NLRA or

Act).2 Nor can ABC avoid that precedent by citing language in Texas, 497 F.3d at 499, suggesting

that required “participat[ion] in an allegedly invalid process” is cognizable harm in and of itself.

Texas dealt with a state government, and the ripeness decision in that case was informed by the

state’s sovereign immunity. Id. at 494-95.3 Private employers have no similar immunity, and are

required to present their objections to the Board’s processes through the statutory procedures that

Congress established for that purpose. To the extent that the procedures for obtaining review of

Board election cases are a hardship, it is one “Congress was aware of” and explicitly determined was

not a cognizable injury. Boire v. Miami Herald Pub. Co., 343 F.2d 17, 22 (5th Cir. 1965).

ABC also asserts that employers will suffer “reputational harm” from being found to have

committed an unfair labor practice. (Opp. 3). But ABC has presented no evidence that any such

2 Myers v. Bethlehem Shipbldg. Corp., 303 U.S. 41, 51 (1938) (“[T]he rules requiring exhaustion of the administrative remedy cannot be circumvented by asserting that the charge on which the complaint rests is groundless and that the mere holding of the prescribed administrative hearing would result in irreparable damage.”). ABC tries to muddle this issue (Opp. at 3) by conflating litigation costs with civil penalties, the issue in Abbott Laboratories v. Gardner, 387 U.S. 136, 152 (1967), but the two are plainly distinguishable. Ohio Forestry, 523 U.S. at 735 (litigation costs are not sufficient to constitute hardship for ripeness purposes). 3 Requiring a party clothed with sovereign immunity to submit to an invalid adjudicative process is as much a violation of that immunity as is holding it liable for damages. See, e.g., Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 766 (2002). At issue in Texas was whether a state that refused to waive its immunity from being sued by an Indian tribe in federal court could nonetheless be subjected to a federal administrative process initiated by the tribe, even though that process denied the state the procedural protections Congress intended it to have, namely, a threshold judicial determination that the state had dealt with the tribe in bad faith. Texas, in short, does not state a general rule that any claimed defect in agency procedures constitutes a “hardship.”

2


harm is likely to accrue to employers who test union certifications, nor is there any such evidence in

the administrative record. This is unsurprising—there is no stigma attached to such a technical

violation of the law because courts recognize that so refusing to bargain is precisely the means

Congress prescribed for employers to test in court a decision certifying a union as bargaining

representative. See, e.g., Boire v. Greyhound Corp., 376 U.S. 473, 477-79 (1964); NLRB v. Douglas County

Elec. Membership Corp., 358 F.2d 125, 127 (5th Cir. 1966) (describing the case as another “where the §

8(a)(5) failure to bargain is the vehicle for testing the validity of an RC Representation Proceeding”);

Hard Rock Holdings, LLC v. NLRB, 672 F.3d 1117, 1120 (D.C. Cir. 2012) (“To preserve its ability to

appeal the certification, the Company refused to bargain with the Union.”).4

BE&K Construction Co. v. NLRB, 536 U.S. 516, 529 (2002), cited by ABC (Opp. 3), is

distinguishable. There, the Board’s unfair labor practice finding—that the employer had filed a

baseless and retaliatory lawsuit—was a direct restraint on the employer’s First Amendment right to

petition the courts for relief. Far from being a comparable burden, a Board refusal-to-bargain

finding is, in fact, the congressionally-sanctioned and judicially-recognized predicate to petitioning the

courts to review the Board’s application of its rules in certifying a bargaining representative.

II. The Rule does not reflect “arbitrary” or “capricious” decisionmaking.

ABC complains of the supposed onerousness of providing employee information to

petitioning unions (the “voter list,” in the Rule’s parlance) two business days after the RD directs an

election. (Opp. 8). But ABC fails to confront the Rule’s detailed rebuttal of this contention. (Bd.

MSJ 10-11). In reality, employers will have much more than two business days to start and complete

4 Executive Order No. 13,673, 79 Fed. Reg. 45309 (July 31, 2014), cited by ABC as giving teeth to this abstract notion of “reputational harm” (Opp. 3), does nothing of the sort. It merely requires that employers who contract with the federal government report labor law violations to appropriate authorities, and directs the Federal Acquisition Regulatory Council to develop rules (aided by guidance to be developed by the Labor Department) to identify “serious, repeated, willful, or pervasive violations of the requirements of the labor laws” which might “demonstrate a lack of integrity or business ethics.” 79 Fed. Reg. 45311-12. No such rule has yet issued.

3


the process. This is because employers will be placed on notice of the voter list requirement as soon

as they receive the petition, which is served along with a description of election procedures. In

addition, employers will have already compiled much of the information needed to comply with the

voter list requirement when submitting their statement of position form, which is due one day prior

to the opening of the pre-election hearing. (Bd. MSJ 11). And as the Rule explained, over the past

decade, “half of all units contain[ed] 28 or fewer employees . . . meaning that even for those small

employers which lack computerized records of any kind, assembling the information should not be a

particularly time-consuming task.” 79 Fed. Reg. 74354.5

In a footnote, ABC argues that FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009),

requires the Board to articulate a “more detailed justification” for the Rule because the Rule

purportedly “rests upon factual findings that contradict those which underlay its prior policy.” Id. at

515; (see Opp. 12 n.9). Yet ABC fails to identify even one specific factual finding underlying prior

policy that the Rule contradicts. As previously discussed, the Board has provided reasonable

justifications for each amendment (Bd. MSJ 2, 7-11) and has done all that Fox requires. See Fox, 556

U.S. at 515.

5 The Board fully explained why it rejected ABC’s allegation that two days is insufficient for construction employers, who may need to use a voting eligibility formula requiring analysis of two years of payroll records. Not only may parties stipulate not to use that formula, but also, some petitions are for units already covered by collective-bargaining agreements, resulting in employers’ ready access to the necessary information. The Board further explained that not all construction industry employers have significant numbers of employees covered by the formula, and finally, that although construction employers may have many job sites, modern technology renders transmission of the necessary information practicable. Id. at 74354. Nor is ABC correct in arguing that construction employers cannot prepare in advance to submit a sufficient voter list. For even though construction employers need not include two years worth of employee information in their pre-hearing statements of position, those employers may still begin to assemble the information upon receipt of the notice of hearing. Id. at 74378. In addition, employers who do not agree to use a different eligibility formula by the close of a pre-election hearing can begin to prepare while the RD drafts a decision—“a task that has [taken] a median of 20 days . . . over the past decade.” Id. at 74387. Finally, parties may agree to extend the voter list production deadline, or in extraordinary circumstances, the RD may so order. Id. at 74480, 74486.

4


III. Even if ripe, ABC’s “appropriate hearing” arguments are meritless.

ABC urges the Court to hold that the Board erred in basing its construction of Section 9’s

hearing requirements on Inland Empire Dist., Lumber Workers v. Millis, 325 U.S. 697, 706 (1945), which

issued prior to the Taft-Hartley Amendments of 1947. (Opp. 5). As the Rule explains, however, the

operative language of Section 9—that in its investigation of representation controversies, the Board

“shall provide for an appropriate hearing upon due notice”—is the same in both the original and the

amended statute. 79 Fed. Reg. 74386. In that circumstance, the Supreme Court’s construction of

that statutory language granting broad discretion to the Board remains controlling.6

Lacking textual support for its claim that Section 9 compels the Board to allow litigation of

all individual eligibility or inclusion issues at the pre-election hearing, ABC urges this Court to find

such a requirement in legislative history. Specifically, ABC claims that despite Congress not changing

the “appropriate hearing” terminology, an individual legislator’s statement in 1947 should illuminate

Congress’s intention in drafting that statutory language in 1935. The Supreme Court has squarely

rejected this anachronistic mode of reasoning.7 The Board was amply justified, therefore, in

concluding that Senator Taft’s statement is not binding law. Id. at 74386 n.363.

In any event, ABC’s arguments based on Senator Taft’s 1947 statement present an

inaccurate account of the Rule’s treatment of voter eligibility issues at pre-election hearings. For

while the Board need not and does not decide every eligibility or inclusion issue that might arise

before an election, such issues will continue to be litigated and decided as deemed necessary and

6 See NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 578 (1994) (finding that Congress did not change the meaning of statutory language previously construed by the Court when it included that same language in an amended statute, notwithstanding Congress disapproved of the result reached by the Court in the prior decision). 7 See Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758 (1979) (legislative observations made years after a statute’s passage “are in no sense part of the legislative history. It is the intent of the Congress that enacted [the section] . . . that controls.”) (internal citations omitted). Even less defensible is ABC’s repeated suggestion that actions taken by the current Congress under the Congressional Review Act of 1996 are a relevant consideration in this Court’s statutory analysis. (Opp. 1, 6 n.3, 10 n.8).

5


desirable by the Agency’s RDs. As the Rule recognizes, in exercising their discretion as to whether to

permit pre-election litigation of voter eligibility issue, RDs will be guided, in part, by the Board’s

experience with the relative margins of victory in its elections. This experience suggests that

deferring such litigation would result in a likely administrative savings to the parties and the Agency

if the voter eligibility issues are limited to 10-20% of the unit; the eligibility of such a relatively small

percentage of the electorate is unlikely to be determinative of the election results in the “vast

majority of cases.” Id. at 74387 n.370, 74388 & n.373. In contrast, if the voting eligibility of more

than 40% of the unit were unresolved, it is much less likely that the election would be decided by a

sufficiently wide margin as to moot the need to resolve all of the challenges before the election.

In short, ABC errs in alleging that an “extraordinary circumstances” standard governs

whether voting eligibility issues may be litigated prior to the election. (Opp. 4, 6). Rather, “regional

directors will not be mandated to follow any particular course of decision-making as to the taking of

evidence on individual eligibility issues, but will instead retain discretion to use their judgment as to

what evidentiary structure will result in the most efficient use of party and agency resources.” 79

Fed. Reg. 74391-92. Granting that kind of discretion, as the Rule does, is well within the Board’s

Section 9 authority.

IV. Even if ripe, ABC’s “time compression” arguments are meritless.

As the Board has shown, employers will continue to have ample meaningful opportunities to

express their views on unions even if the Rule generally results in more expeditious elections. The

Rule gave several reasons why this is so. (Bd. MSJ 18-19 & n.26). ABC challenges only one of them.

Specifically, ABC disputes the basis for the Board’s finding that employers typically know

about union organizing campaigns prior to the filing of a petition. (Opp. 11). But the Rule explains

that pre-petition employer knowledge of union organizing activity has long been the norm. As the

Supreme Court observed in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), a union “[n]ormally . . .

6


will inform the employer of its organization drive early in order to subject the employer to the unfair

labor practice provisions of the Act.” Id. at 603. Indeed, as the facts of Gissel itself confirm,

employers are typically aware of organization drives occurring at their facilities “whether informed

by the union or not.” Id. “[B]ased on its own experience,” 79 Fed. Reg. 74321 n.56, which was

supported by precedent, id. at 74321, an empirical study conducted by academic scholars, id. at

74321 n.56, and relevant practitioner feedback, id. at 74321 n.57, the Board appropriately concluded

that “[w]hat was true at the time of Gissel is still true today,” id. at 74320.

Even if, as ABC claims, some comments challenged the empirical study’s methodology or

the statistical value of the practitioner feedback, id. at 74321 nn. 56 & 57, it remains the case that

these data points “are consistent with the Board’s experience, and no contrary study was presented

to the Board,” id. at 74321. Nothing more is necessary to support the Board’s finding. See Nat’l Ass’n

of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095, 1140 (D.C. Cir. 1984) (per curiam) (agency may

“rely upon its historical experience and expertise” in considering “a set of evidentiary facts less

desirable or complete than one which would exist in some regulatory utopia”).

Moreover, ABC’s argument overlooks the Rule’s discussion of why employers will still have

a meaningful opportunity to campaign even if, contrary to the Board’s informed judgment,

“employer ignorance of an organizing campaign is the norm.” 79 Fed. Reg. 74322. In support of this

conclusion, the Board relied upon a variety of factors, including employers’ “control [over] the

quantum of work time which is used in conveying their message,” id. at 74323, the “small size” of

most bargaining units, id. at 74322, and the speech-facilitating features of “modern communications

technology,” id. at 74323. ABC does not challenge any of these considerations or the conclusion

which they support.8

8 Even if ABC had done so, such arguments would be better suited for an as-applied challenge, in which a specific period of time for speech is crystallized in the record so that a reviewing court could judge whether such time period did, in fact, infringe a party’s speech rights.

7


In addition, as the Board has explained, nothing in the Act establishes an across-the-board

minimum permissible campaign period. (Bd. MSJ 20). While ABC maintains that the Rule

“shortens” that period “to a degree that is inconsistent with Congressional intent” (Opp. 9-10), it

lacks any textual support for its claim. Instead, ABC contends that Congress implicitly endorsed a

minimum campaign period of at least 30 days when it passed the Labor-Management Reporting and

Disclosure Act of 1959 (“LMRDA”), which amended the NLRA in several respects. Terming these

targeted amendments a “re-enactment” of the NLRA, ABC argues that Congress thereby ratified

extant Board rules that, according to ABC, had “interpreted the Act as requiring substantially more

than 30 days between a petition and an election, absent waiver by the parties.” (Opp. 10).

Among the deficiencies of this “re-enactment” theory is that ABC cites no authority for the

proposition that the Board’s 1959 election rules required campaign periods in contested cases to last

“substantially more than 30 days.” (Id.) Board counsel have not been able to identify any such

provision in the pertinent subparts of the Board’s then-extant rules or statements of procedure. See

23 Fed. Reg. 3254, 3256-58, 3266-69 (May 14, 1958) (attached hereto as NLRB Exhibit A). Thus,

ABC’s “[c]ongressional re-enactment” argument suffers from a faulty premise. (Opp. 10). And even

if ABC meant to argue instead that application of the Board’s pre-LMRDA election procedures

generally resulted in campaign periods greater than 30 days in contested cases, there is no evidence

that this figure was expressive of any Board judgment that the Act sets a minimum length for

election campaigns in such cases. Nor is there any evidence that in the 1959 amendments, Congress

intended to legislatively enshrine the collateral timing consequences of the Board’s pre-LMRDA

election procedures. To the contrary, because of its concern over delays in the processing of election

cases, Congress amended Section 3(b) of the NLRA, 29 U.S.C. § 153(b), “to expedite final disposition of

cases by the Board, by turning over part of its caseload to its regional directors for final

8


determination.” Magnesium Casting Co. v. NLRB, 401 U.S. 137, 141 (1971) (emphasis added) (quoting

105 Cong. Rec. 19770 (1959); A.R. NLRB 168396).9

V. The Rule reasonably modernizes the procedures surrounding employer disclosure of employee information. ABC objects to the Rule’s updating the existing requirement that the names and home

addresses of bargaining unit employees be disclosed prior to the election to include, where available,

email addresses and phone numbers as well. If employers have such additional contact information

on file, it is because they recognize, as the Rule does, that this is how people communicate today,

notwithstanding the known risks. Contrary to ABC’s claim (Opp. 7-9), the Board reasonably

determined that these risks are worth taking in election cases to better ensure that employees have

the information they need to make a free choice in the election. In particular, the Board reasonably

relied on the nearly 50-year absence of evidence of misuse of the rule requiring disclosure of names

and addresses. 79 Fed. Reg. 74342. While ABC claims that the Board ignored contrary evidence, the

one case it cites concerns a union campaign misrepresentation, not a misuse of an employee’s

personal information. Goffstown Truck Ctr., Inc., 356 NLRB No. 33 (2010). And in relying on an

example of abuse unrelated to the Board election process, Pulte Homes, Inc. v. Laborer’s Int’l Union, 648

F.3d 295 (6th Cir. 2011), ABC ignores the Board’s reasoned judgment that unions seeking to win

support in a secret ballot election have a practical incentive to avoid conduct that would alienate

potential voters. 79 Fed. Reg. at 74336, 74342. In any event, if misuse should occur in the future, the

9 As the Board has previously discussed, the version of the LMRDA ultimately enacted into law omitted a provision—championed by then-Senator John F. Kennedy—that would have authorized the Board to return to its pre-Taft-Hartley Act practice of dispensing with pre-election hearings in certain cases. (See Bd. MSJ 20). When House Education and Labor Committee Chairman Graham Barden declared that the LMRDA did not “reinstate authority or procedure for a quicky election,” he was referring to this previously-proscribed procedure and was not implying that representation campaigns should have a minimum length. 105 Cong. Rec. 18128 (1959) (statement of Rep. Barden); A.R. NLRB 168390. ABC errs in suggesting otherwise. (Opp. 10 & n.7).

9


Board stands ready to fashion appropriate remedies, using its authority to rule on election objections

or unfair labor practice charges and to discipline the parties before it. Id. at 74359.

ABC also objects to the Rule’s requirement that employers include with the statement of

position form (filed the day before the pre-election hearing), a list of names, shifts, work locations,

and job classifications of the employees in the petitioned-for unit, as well as any other employees the

employer seeks to add to the unit. Id. at 74309. ABC’s claim that the Board failed to justify this new

requirement overlooks the Board’s explanation that disclosure of this information will facilitate the

resolution of disputes over the contours of an appropriate unit and the eligibility of voters. Id. at

74366-67. ABC’s claim (Opp. 9) that unions will “game the system” by filing a “deficient petition”

merely to obtain the initial list takes no account of the fact that the disclosure requirement is only

triggered after the RD has determined that there is reasonable cause to believe that a question of

representation affecting commerce exists, 79 Fed. Reg. 74480, and that the petition is supported by

at least 30% of employees in the unit, id. at 74371, 74421. Further, as the Board noted in addressing

this concern, if a union should withdraw its petition after receiving this information, the RD may

limit a petitioner’s ability to refile a petition as a condition of approving the withdrawal, and the RD

and the Board may reject a petitioner’s request to withdraw the petition, “if the request would run

counter to the purposes of the Act.” Id. at 74368.

VI. Conclusion

For these reasons, and for those previously given, ABC’s NLRA-based challenges to the

Rule should be dismissed as unripe, ABC’s remaining challenges should be denied, and summary

judgment on those claims should be entered in favor of the Board.10

10 ABC’s fleeting reference (Opp. 4) to Amendment 6 (pre-election hearing will continue from day-to-day until completed) and Amendment 16 (RD will specify the election details in the direction of election) cannot be understood as proper challenges to the Rule, as ABC has never raised these provisions previously in either its complaint or its motion for summary judgment.

10


NANCY E. KESSLER PLATT Deputy Assistant General Counsel DAWN L. GOLDSTEIN KEVIN P. FLANAGAN Supervisory Attorneys PAUL A. THOMAS DAVID H. MORI MICHAEL ELLEMENT IGOR VOLYNETS Attorneys

Respectfully submitted, s/Barbara A. O’Neill BARBARA A. O’NEILL Assistant General Counsel for Contempt, Compliance, and Special Litigation Phone: (202) 273-2958 Fax: (202) 273-4244 E-mail: [email protected] National Labor Relations Board 1099 14th Street, NW, Suite 10700 Washington, D.C. 20570

Dated: March 27, 2015 Washington, D.C.

11


mailto:[email protected]

CERTIFICATE OF SERVICE I hereby certify that on March 27, 2015, the foregoing was served on the following via electronic ECF filing: Maurice Baskin Littler Mendelson, P.C. 1150 17th St. N.W. Washington, DC 20036 Mark Jodon Travis Odom Littler Mendelson, P.C. 1301 McKinney Street Suite 1900 Houston, Texas 77010-3031 Jason E. Winford David E. Watkins JENKINS & WATKINS 2626 Cole Avenue, Suite 200 Dallas, Texas 75204-0817 Raymond J. LaJeunesse John N. Raudabaugh Glenn M. Taubman c/o National Right to Work Legal Defense & Education Foundation, Inc. 8001 Braddock Rd., Suite 600 Springfield, Virginia 22160 s/ Barbara A. O’Neill

12


TITLE 29-LABORChapter I-National Labor Relations

BoardREVIsION OF CHAPTER

Chapter I of Title 29, Code of FederalRegulations, is revised to read as setforth below.

Part101102

PART

FRANX M. KLEILER,Executive Secretary.

Statements of procedure, Series 7.Rules and regulations, Series 7.

101-,STATEDIENTS OF PROCEDURE,

SERIES 7

Subpart A-General StatementSec.101.1 General statement.

Subpart B--Unfair Labor Practice Cases UnderSection 10 (a) to (it of the Act and TelegraphMerger Act Cases

101.2 Initiation of unfair labor practicecases.

101.3 Compliance with section 9 (f), (g),and (hi) of the act.

101.4 Investigation of charges.101.5 Withdrawal of charges.101.6 Dismissal of charges and appeals to

general counsel.101.7 Settlements.101.8 Complaints.101.9 Settlement after issuance of com-

plaint.101.10 Hearings.101.11 Intermediate report (recommended

decision).101.12 Board decision and order.101.13 Compliance with Boarid decision and

order.101:4 -Judicial review of Board decision

and order.101.15 Compliance with court decree.101.16 Back-pay proceedings.

Subpart C-Representation Cases Under Section9 (c) of the Act

101.17 Initiation of representation case.101.18 Investigation of petition.101.19 Consent adjustments before formal

hearing.101.20 Formal hearing.101.21 Hearing; procedure after hearing.

Subpart D- --Referendum Cases Under Section9 (e) (1) and (2) of the Act

101.22 Initiation of rescission of authoritycases.

101.23 Investigation of petition; with-drawals and dismissals.

101.24 Consent agreements providing forelection.

101.25 Procedure respecting election con-ducted without hearing.

101.26 Formal hearing and procedure re-specting election conducted afterhearing.

Subpart E-Jurisddoned Dispute Cases UnderSection 10 (k) of the Act

101.27 Initiation of proceedings to hearand determine jurisdictional dis-putes under section 10 (k),

101.28 Investigation of charges; with-drawal of charges; dismissal ofcharges and appeals to Board.

101.29 Initiation of formal action; settle-ment.

101.30 Hearing.101.31 Procedure before the Board.101.32 Compliance with certification;

further proceedings.Subpart F-Procedure Under Section 10 (1) and (I)

of the Act101.33 Application for temporary relief or

restraining orders.101.34 Change of circumstances.

RULES AND REGULATIONS .

AUToRrry: §§ 101.1 to 101.34 issued undersee. 6, 49 Stat. 452, as amended; 29 U. S. C.156.

SUBPART A-GENERAL STATEMENT§ 101.1 General statement, /By virtue

of the authority vested in itby the Na-tional Labor Relations Act, 49 Stat. 449,as amended by the Labor ManagementRelations Act, 1947, Public Law 101,Eightieth Copgress, first session, the Na-tional Labor Relations Board hereby is-sues and causes to be published in theFEDERAL REGISTER Series 7 of its State-ments of Procedure, which are promul-gated to carry out the provisions of theact. Said series shall become effectiveupon the signing of the original by themembers of the Board and the publica-tion thereof in the FEDERAL REGISTER.The Statements of- Procedure, Series7, shall be in force and effect untilamended or rescinded by the Board.

SUBPART B--UNFAIR LABOR PRACTICE CASESUNDER SECTION 10 (a) TO (I) OF THE ACT

'AND TELEGRAPH MERGER ACT CASES

§ 101.2 Initiation of unfair labor prac-tice cases. The investigation of an al-leged violation of the National LaborRelations Act is initiated by the filing ofa charge, which must be in writing andsigned, and must either be notarized ormust contain a declaration by the personsigning it, under the penaltiei of theCriminal Code, that its contents are trueand correct to the best of his knowledgeand belief. The charge is filed with theregional director 'or the region in whichthe alleged violations have occurred orare occurring. A blank form for filingsuch charge is supplied by the regionaloffice upon request. The charge containsthe name and address of the personagainst whom the charge is made and astatement of the facts constituting thealleged unfair labor practices. Any per-son may file a charge, but no complaint

o will be issued upon a charge filed by'alabor organization unless that labor or-

,.ganization is in compliance with section9 (f), (g), and (h) of the act. (See§ 101.3.)

§ 101.3 Compliance with section 9 (f),(g), and (h) of the act. (a) If a charge(or petition) is filed by a labor organiza-tion, that labor organization and everynational or international labor organiza-,tion of which it is an affiliate or constit-uent unit must have complied withsection 9 (f) (B) (2) of the act. At thetime of filing the charge (or petition) orpridr thereto, or within a reasonable pe-riod of time thereafter not to exceed 10-days, the labor organization must present

-the duplicate copy of a letter from theUnited States Department of Laborshowing that it has filed the material re-quired under section 9 f) and (g) ofthe act and a declaration executed by anauthorized agent stating the labor or-ganization has complied with section 9f) (B) (2) and setting forth the method

by which compliance was made.(b) In addition, the labor organization

and every national or international labororganization of which it is an affiliateor constituent unit must have compliedwith section 9 (h) of the act as follows:At the time of filing the charge (or peti-tion) or prior thereto, or within a rea-

sonable period not to exceed 10 daysthereafter, the national or internationallabor organization shall have on file withthe general counsel in Washington, D. C.,and the local labor organization shallhave on file 'with the regional directorin the region in which the proceedingis pending, or in which it customarilymes cases, a declaration by an authorizedagent executed contemporaneously orwithin the -preceding 12-month periodlisting the titles of all offices of the filingorganization and stating the names ofthe incumbents, if any, in each such officeand the date of expiration of eaclincum-bent's term, and an affidavit from eachsuch officer, executed contemporane-ously or within-the preceding 12-monthperiod, stating that he is not a memberof the Communist Party or affiliated withsuch party and that he does not believen, and is not a member of, nor supports

any organization that believes in orteaches the overthrow of the UnitedStates Government by force or by anyillegal or unconstitutional methods.

(c) In determining who is occupyingan office and must, therefore, file an affi-davit as an "officer," the Board will nor-mally rely upon the designation of officesappearing in the constitution of the labororganization. Where, however, theBoard has reasonable cause to believethat a labor organization has omittedfrom its cdn~titution the designatiofh ofany position as an office for the-purposeof evading or- circumventing the filingrequirements of section 9 -(h) of the act,the Board may require affidavits fromadditional persons.

(d) Whenever all the requirementshave been met, U4e Board inWashington,D. C., or the regional director, whicheveris appropriate, issues to the labor organ-ization appropriate notice of such com-pliance.

§ 101.4 Investigation,of c l a r g e s.When the charge is received in the re-gional office it is med, docketed, andassigned a case number. The regionaldirector will, on request of the chargingparty, and may in any case cause a copyof the charge to be served upon the per-son against whom the charge is made,but timely service of a copy of the chargewithin the meaning -of the proviso tosection 10 (b) of the act is the exclusiveresponsibility of the charging party andnot of the general counsel or his agents.The regional director requests the personfiling the charge to submit evidence inits support. The person against whomthe charge is filed, hereinafter called therespondent, is asked to submit a writtenstatement of his position in respect tothe allegations. The case is then as-signed to a member of the field staff forinvestigation, who interviews represent-atives of all parties and those persoilswho have knowledge as to the charges.In the investigation and-in all otherstages of the proceedings, charges alleg-ing violation of section 8 (b) (4) (A),(B), and (C) are given priority over allother cases in the office in which theyare pending except cases of like charac-ter, and charges alleging violation of sec-tion 8 (b) (4) (D) are given- priorityover all cases except section 8 (b) (4)(A), (B), and (C) cases and other casesalleging violation of section 8 (b) (4)

NLRB Exhibit A

Case 1:15-cv-00026-RP Document 29-1 Filed 03/27/15 Page 1 of 19

Wednesday, May 14, 1958

(D). After full investigation, the casemay be disposed of through informalmethods such as withdrawal, dismissal,and settlement; or, the case may neces-sitate formal methods of disposition.Some of the informal methods of han-dling unfair labor practice cases will bestated first.

S 101.5 Withdrawal df charges. Ifinvestigation reveals that there has beenno violation of the National Labor Rela-tions Act or the evidence is insufficientto substantiate the charge, the regionaldirector recommends withdrawal of thecharge by the person who filed. Thecomplainant may also, on its own initia-tive, request withdrawal. If the com-plainant accepts the recommendation ofthe director or requests withdrawal onits own initiative, the respondent is im-mediately notified of the withdrawal ofthe charge.

§ 101.6 Dismissal of charges and ap-peals to general counsel. If the com-plainant refuses to withdraw the chargeas recommended, the regional directordismisses the charge. The regional di-rector thereupon informs the parties ofhis action, together with a simple state-ment of the grounds therefor, and thecomplainant of his right of appeal to thegeneral counsel in Washington, D. C.,within 10 days. If the complainant ap-peals to the general counsel, the entirefile in the case is sent to Washington,D. C., where the case is fully reviewed bythe general counsel with the assistanceof his staff. Following such review, thegeneral counsel may sustain the regionaldirector's dismissal, stating the groundsof his affirmance, or may direct the re-gional director to take further action.

§ 101.7 Settlements. B e fore anycomplaint is issued or other formal ac-tion taken, the regional director affordsan opportunity to all parties for the sub-mission and consideration of facts, argu-ment, offers of settlement, or proposalsof adjustment, except where time, thenature of the proceeding, and the publicinterest do not permit. Normally pre-hearing conferences are held, the prin-cipal purpose of which is to discuss andexplore such submissions and proposalsof adjustment. The regional office pro-vides Board-prepared forms for suchsettlement agreements, as well as printednotices for posting by the respondent.These agreements, which are subject tothe approval of the regional director,provide for an appeal to the generalcounsel, as described in § 101.6, by a com-plainant who will not join in a settlementor adjustment deemed adequate by theregional director. Proof of complianceis obtained by the regional director be-fore the case is closed. If the respond-ent fails to perform his obligations underthe informal agreement, the regional di-rector may determine to institute formalproceedings.

§ 101.8 Complaints. If the chargeappears to have merit and efforts to dis-pose of it by informal adjustment areunsuccessful, the regional director insti-tutes formal action by issuance of a com-plaint and notice of hearing. In certaintypes of cases, involving novel and com-

No. 95--5

FEDERAL REGISTER

plex issues,-the regional director, at thediscretion of the general counsel, mustsubmit the case for advice from the gen-eral counc before issuing complaint.The complaint, which is served on allparties, sets forth the facts upon whichthe Board bases its jurisdiction and thefacts relating to the alleged violations oflaw by the respondent. The respondentmust file an answer to the complaintwithin 10 days of its receipt, setting fortha statement of its defense.

§ 101.9 Settlement after issuance ofcomplaint. (a) Even though formalproceedings have begun, the partiesagain have full opportunity at everystage to dispose of the case by amicableadjustment and in compliance with thelaw. Thus, after the complaint hasbeen issued and a hearing scheduled oreven begun, the attorney in charge of thecase and the regional director afford allparties every opportunity for the sub-mission and consideration of facts, argu-ment, offers of settlement, or proposalsof adjustment, except where time, thenature of the proceeding, and the publicinterest do not permit.

(b) All settlement stipulations whichprovide for the entry of an order by theBoard are subject to the approval of theBoard in Washington, D. C. If the set-tlement provides for the entry of anorder by the Board, the parties agree towaive their right to hearing and agreefurther that the Board may issue anorder requiring the respondent to takeaction appropriate to the terms of theadjustment. Usually the settlementstipulation also contains the respondent'sconsent to the Board's application for theentry of a decree by the appropriatecircuit court of appeals enforcing theBoard's order.

(c) In the event the respondent failsto comply with the terms of a settlementstipulation, upon which a Board orderand court decree are based, the Boardmay petition that court to adjudge therespondent in contempt. If the re-spondent refuses to comply with theterms of a stipulation settlement provid-ing solely for the entry of a Board order,the Board may petition the court for en-forcement of its order, pursuant to sec-tion 10 of the National Labor RelationsAct.

§ 101.10 Hearings. (a) Except in ex-traordinary situations the hearing isopen to the public and usually conductedin the region where the charge origi-nated. A duly designated trial examinerpresides over the hearing. The Govern-ment's case is conducted by an attorneyattached to the Board's regional office,who has-the responsibility of presentingthe evidence in support of the complaint.The rules of evidence applicable in thedistrict courts of the United States underthe Rules of Civil Procedure adopted bythe Supreme Court are, so far as practi-cable, controlling. Counsel for the gen-eral counsel, all parties to the proceeding,and the trial examiner have the powerto call, examine, and cross-examine wit-nesses and to introduce evidence into therecord. They may also submit briefs,engage in oral argument, and submitproposed findings and conclusions to the

trial examiner. The attendance andtestimony of witnesses and the produc-tion of evidence material to any matterunder investigation may be compelled bysubpena.

(b) The functions- of all trial exam-iners and other Board agents or em-ployees participating in decisions inconformity with section 8 of the Admin-istrative Procedure Act are conducted inan impartial manner and any such trialexaminer, agent, or employee may at anytime withdraw if he deems himself dis-qualified because of bias or prejudiceThe Board's attorney has the burden ofproof of violations of section 8 of theNational Labor Relations Act and section222 (f) of the Telegraph Merger Act.In connection with hearings subject tothe provisions of section 7 of the Admin-istrative Procedure Act:

(1) No sanction is imposed or rule ororder- issued except upon considerationof the whole record or such portionsthereof as may be cited by any party andas supported by and in accordance withthe preponderance of the reliable, pro-bative, and substantial evidence:

(2) Every party has the right to pre-sent his case or defense by oral or docu-mentary evidence, to submit rebuttalevidence, and to conduct such cross-examination as may be required for afull and true disclosure of the facts: and

(3) Where any decision rests on offli-cial notice of a material fact not appear-ing in the evidence in the record, anyparty is on timely request afforded areasonable opportunity to show thecontrary.

§ 101.11 Intermediate report (recom-mended decision). (a) At the conclu-sion of the hearing the trial examinerprepares an intermediate report (recom-mended decision) stating findings offact and conclusions, as well as the rea-sons for his determinations on all mate-rial issues, and making recommendationsas to action which should be taken in thecase. The trial examiner may recom-mend dismissal or sustain the complaint,in whole or in part, and recommend thatthe respondent cease and desist from theunlawful acts found and take action toremedy their effects.

(b) The intermediate report is filedwith the Board in Washington, D. C,,and copies are simultaneously served oneach of the parties. At the same timethe Board, through its executive secre-tary, issues and serves on each of theparties an order transferring the case tothe Board. The parties may accept andcomply with the recommendations of thetrial examiner, and thus normally con-clude the entire proceedings at this point,Or, the parties or counsel for the Boardmay file exceptions to the intermediatereport with the Board and may also re-quest permission to appear and argueorally before the Board in Washington,D. C. They may also submit pro-posed findings and conclusions to theBoard. Oral argument is very frequentlygranted.

§ 101.12 Board decision and order.(a) If any party files exceptions to theintermediate report, the Board, with theassistance of the legal assistants to eacli

*3255

NLRB Exhibit A


RULES -AND REGULATIONS

Board member who function in much ofthe same mann'er as law clerks do forjudges, reviews the entire record, includ-ing the trial examiner's report and rec-ommendations, the exceptions thereto,the complete transcript of evidence, andthe exhibits, briefs, and arguments. The'Board does not consult with members ofthe trial examining staff orwith anyagent of the general counsel in its delib-erations. It then issues its decision andorder in which it may adopt, modify, orreject the findings and recommenda-tions of the trial examiner. The decisionand order contains detailed findings offact, conclusions of law,i ant! basic rea-sons for decision on all material issuesraised, and an order either dismissingthe complaint in whole or in part or re-quiring the respondent to cease and de-sist from its unlawful practices and totake appropriate affirmative action.

(b) If no exceptions are filed to theintermediate report, and the respondentdoes Aiot comply with its iecommenda-tions, the Board adopts the report andrecommendations of the trial examiner.All objections and exceptions, 'whetheror not previously made during or afterthe hearing, are deemed waived for allpurposes.

(c) If no exceptions are filed to theintermediate report and its recommenda-tions and the respondent complies there-with, the case is normally closed but theBoard may, if it deems necessary in orderto effectuate the policies of the act, adoptthe report and recommendations of thetrial examiner.

§ 101.13 Compliance with Board deci-si n and order. (a) Shortly after theBoard's decision and order is issued thedirector of the regional office in whichthe charge was filed communicates withthe respondent for the purpose of ob-taining compliance. Conferences may beheld to arrange the details necessary forcompliance with the terms of the order.

(b) If the respondent effects full com-pliance with the terms of the order, theregional director submits a report to thateffect to Washington, D. C., after whichthe case may be closed. Despite compli-ance, however, the Board's order is acontinuing one; therefore, the closing ofa case on compliance is necessarily con-ditioned upon the continued observanceof that order; and in some cases it isdeemed desirable, notwithstanding,com-pliance, to implement the-order withan enforcing decree. Subsequent vio-lations of the order may become the basisof further proceedings.

§ 101.14 Judicial review of Board deci-sion and order. If the respondent doesnot comply with the Board's order, orthe Board deems it desirable to imple-ment the order with a court decree, theBoard may petition the appropriate Fed-eral court for enforcement. Or, the re-spondent may petition the circuit courtof appeals to review and set aside theBoard's order. Upon such review or en-forcement proceedings, the court reviewsthe record and the Board's findings andorder and sustains them if they are inaccordance with the requirements of law.The court may enforce, modify, or setaside in whole or in part the Board's

findings and order, or it may remand thecase to the Board for further proceedingsas directed by the court. Following thecourt's decree, either the Government orthe private party may petition the Su-preme Court for review upon writ of cer-tiorari. Such applications for review tothe Supreme Court are handled by theBoard through the Solicitor General ofthe United States.

§'101.15 Compliance with court de-cree. After a Board order has been en-forced by a court:decree, the Board hasthe responsibility of obtaining compli-ance with that decree. Investigation ismade by the regional office'of the re-spondent's efforts to comply. If it findsthat the respondent has failed to live upto the terms of te court's decree, thegeneral counsel/nay, on behalf of theBoard, petition the court to hold him incontempt of court. The court may orderimmediate remedial action and imposesanctions and penalties.

101.16 Back-pay proceedings. Aftera Board order directing the payment ofback pay has been enforced by a courtorder, the regional office computes theamount of back pay due each employee.If informal efforts to dispose of the mat-ter prove unsuccessful, the regional di-rector is then authorized to issue -a"back-pay specification" in the name ofthe Board and a notice of hearing beforea trial examiner, both of which areserved on the parties involved. Thespecification sets forth the computationsshowing how the regional director ar-rived at the net back pay due each em-ployee. The respondent must file ananswer within 15 days of the receipt ofthe specification, setting forth a partic-ularized statement of its defense. Theprocedure before the trial examiner orthe Board is substantially the same asthat described in §§ 101.10 to 101.14,inclusive.

SUBPART C-REPRESENTATION CASES UNDERSECTION 9 (c) OF THE ACT

§ 101.17 Initiation of representationcase. The investigation of the questionas to whether a union represents a ma-jority of an appropriate grouping of em-ployees is initiated by the filing of a pe-tion by any person or labor organizationacting on behalf of a substantial num-ber of employees or by an employer whenone or more individuals or labor organi-zations present to him a claim to be rec-ognized as the exclusive bargaining rep-resentative. If there is a certified orcurrently recognized representative, anyemployee, or group of employees, or anyindividual or; labor organization actingin, their behalf may also file decertifica-tion proceedings to test the question ofwhether the certified or recognized agentis still the representative of the em-ployees. The petition must be in writ-ing and signed, and either must be nota-rized or must contain a declaration bythe person signing it, under the penaltiesof the Criminal Code, that its contents'are true and correct to the best of hisknowledge and belief. It is filed with the'regional director for the region in whichthe proposed or actual bargaining unitexists. Petition forms, which are sup-

plied by the regional office upon request,provide, among other thifigs, for a de-scription of the contemplated or existingappropriate bargaining unit, the approx-imate number of employees involved, andthe names of all labor organizationswhich claim to represent the employees.If the petition is filed by a labor organ-ization, no investigation will be made ofany question of representation raised bysuch labor organization unless such labororganization is in compliance with sec-tion 9 (M), (g), and (h) of the act. (See§ 101.3.) If a petition is filed by a labororganization or in the case of a petitionto decertify a certified or recognizedbargaining agent, the petitioner mustsupply, within 48 hours after filing butin no event later than the last day onwhich the petition might timely be filed,evidence of representation. Such evi-dence is usually in the form of cardsauthorizing the labor organization torepresent the employees or authorizingthe petitioner to file a decertificationproceeding.

§101.18 Investigation of petition.(a) Upon receipt of the petition in theregional office, it is docketed and as-signed to a member of the staff, usuallya field examiner, for investigation. Heconducts an investigation to ascertain(1) whether the employer's operationsaffect commerce within the meaning ofthe act, (2) the appropriateness of theunit of employees for the purposesof collective bargaining and the existenceof a boia fide question concerning rep-resentation within the meaning of theact, (3) whether the election wouldeffectuate the policies of the act and re-flect the free choice of employees in theappropriate unit, and (4) whether, if thepetitioner is a labor organization seekingrecognition, there is a sufficient prob-ability, based on the evidence of repre-sentation of the petitioner, that theemployees have selected it to representthem. The evidence of representationsubmitted by the petitioning labor or-ganization or by the person seeking de-certification is ordinarily checked todetermine the number or proportion ofemployees who have designated thepetitioner, it being the Board's admin-istrative experience that in the-absenceof sp-ial factors the conduct of an elec-tion serves no purpose under the statuteunless the petitioner has been designatedby at least 30 percent of the employees.However, in the case of a petition by anemployer, no proof of representation onthe part of the labor organization claim-ing a majority is required ana the re-gional director proceeds with the case ifother factors require it unless the labororganization withdraws its claim to ma-jority representation. The field exam-iner, or ether member of the staff,attempts to ascertain from all interestedparties whether or not the grouping orunit of employees described in the peti-tion constitutes an appropriate bargain-.ingi-nit.

(b) The petitioner may on its own ini-tiative request the withdrawal of thepetition if the investigation discloses thatno question of representation existswithin, the meaning of the statute, be-cause, among other possible reasons, the

NLRB Exhibit A



unit is not appropriate, or a written con-tract precludes further investigation atthat time, or where the petitioner is alabor organization or a person seekingdecertification and the showing of repre-sentation among the employees is in-sufficient to warrant an election underthe 30-percent principle stated in para-graph (a) of this section.

(c) For the same or similar reasonsthe regional director may request thepetitioner to withdraw its petition. If,despite the regional director's recom-mendations, the petitioner refuses towithdraw the petition, the regional di-rector then dismisses the petition statingthe grounds for his dismissal and in-forming the petitioner of his right ofappeal to the Board in Washington,D. C. The petitioner may within 10days appeal from the regional director'sdismissal by filing such request with theBoard in Washington, D. C. After a fullreview of the file with the assistance ofits staff, the Board may sustain the dis-missal, stating the grounds of its affirm-ance, or may direct the regional directorto take further action.

§ 101.19 Consent adjustments before-ormal hearing. The Board has devisedand makes available to the parties twotypes of informal consent proceduresthrough which representation issues canbe resolved without recourse to formalprocedures. These informal arrange-ments are commonly referred to as (a)consent-election agreement, followed byregional director's determination, and(b) consent-election agreement, fol-lowed by Board certification. Formsfor use in these informal procedures areavailable in the regional offices.

(a) (1) The consent-election agree-ment followed by the regional director's,determination ofrepresentatives is themost frequently used method of informaladjustment of representation cases.The terms of the agreement providingfor this form of adjustment are set forthin printed forms, which are availableupon request at the Board's regionaloffices. Under these terms the partiesagree with respect to the appropriateunit, the payroll to be used as the basisof eligibility to vote in an election, andthe place, date, and hours of balloting.A Board agent arranges the details inci-dent to the mechanics and conduct ofthe election. For example, he usuallyarranges preelection conferences inwhich the parties check the list of votersand attempt to resolve any questions ofeligibility. Also, prior to the date ofelection, official notices of election are,whenever possible, posted conspicuouslyin the plant. These notices reproduce asample ballot and outline such electiondetails as location of polls, time of voting,and eligibility rules.

(2) The actual polling is always con-ducted and supervised by Board agents.Appropriate representatives of eachparty may assist them and observe theelection. As to the mechanics of theelection, a ballot is given to each eligiblevoter by the Board's agents. The ballotsare marked in the secrecy of a votingbooth. The Board agents and author-ized observers have the privilege of chal-

lenging for reasonable cause employeeswho apply for ballots.

(3) Customarily the Board agents, inthe presence and with the assistance ofthe authorized observers, count and tab-ulate the ballots immediately after theclosing of the polls. A complete tally ofthe ballots is served upon the partiesupon the conclusion of the count.

(4) If challenged ballots are sufficientin number to affect the results of thecount, the regional director conducts aninvestigation and rules on the chal-lenges. Similarly, if objections to theconduct of the election are filed within5 days of the issuance of the tally ofballots, the regional director likewiseconducts an investigation and rules uponthe objections. If, after investigation,the objections are found to have merit,the regional director may void the elec-tion results and conduct a new election.

(5) This form of agreement providesthat the rulings of the regional directoron all questions relating to the election(for example, eligibility to vote and thevalidity of challenges and objections) arefinal and binding. Also, the agreementprovides for the conduct of a runoff elec-tion, in accordance with the provisionsof Part 102 of this chapter (the Board'srules and regulations), if two or morelabor organizations appear on the ballotand no one choice receives the majorityof the valid votes cast.

(6) The regional director issues to theparties a certification of the results ofthe election, including certification ofrepresentatives where appropriate, withthe same force and effect as if issued bythe Board.

(b) The consent-election agreementfollowed by a Board determination pro-vides that disputed matters following theagreed-upon election, if determinative ofthe results, shall be the basis of a formaldecision by the Board instead of an in-formal determination by the regionaldirector. Thus, it is provided that theBoard, rather than the regional director,makes the final determination of ques-tions raised concerning eligibility, chal-lenged votes, and objections to theconduct of the election. Thus, if chal-lenged ballots are sufficient in number toaffect the results of the count, the re-gional director conducts an investigationand issues a report on the challengesinstead of ruling thereon. Similarly, ifobjections to the conduct of the electionare filed within 5 days after issuance ofthe tally of ballots, the regional directorlikewise conducts an investigation andissues a report instead of ruling uponthe validity of the objections. In eitherevent, the regional director's report isserved upon the parties, who may fileexceptions thereto within 10 days withthe Board in Washington, D. C. TheBoard then reviews the entire recordmade and may, if a substantial issue israised, direct a hearing on the challengedballots or the objections to the conductof the election. Or, the Board may, if nosubstantial issues are raised, affirm theregional director's report and take appro-priate action in termination of the pro-ceedings. If a hearing is held upon thechallenged ballots or objections, all par-ties are heard and, if directed by the

Board, a report containing findings offact and recommendations as to the dis-position of the challenges or objections,or both, and resolving issues of credibilityis issued by the hearing officer and servedupon the parties, who may file exceptionsthereto within 10 days with the Board inWashington, D. C. The record made onthe hearing is reviewed by the Boardwith the assistance of its legal assistantsand a final determination made thereon,If the objections are found to have merit,the election results may be voided and anew election conducted under the super-vision of the regional director. If theunion has been selected as the repre-sentative, the Board or the regional di-rector, as the case may be, issues itscertification, and the proceeding is ter-minated. If upon a decertification oremployer petition the union loses theelection, the Board or the regional direc-tor, as the case may be, certifies that theunion is not the chosen representative.

§ 101.20 Formal hearing. If no in-formal adjustment of the question con-cerning representation has been effectedand it appears to the regional directorthat formal action is necessary, the re-gional director will institute formal pro-ceedings by issuance of a notice of hear-ing on the issues, which is followed byBoard decision and direction of electionor dismissal of the case. In certain typesof cases, involving novel or complex-issues, the regional director may submitthe case for advice to the general counselbefore issuing notice of hearing.

§ 101.21 Hearing; procedure a f t e rhearing. (a) The notice of hearing, to-gether with a copy of the petition, isserved upon the unions and employerfiling or named in the petition and uponother known persons or labor organiza-tions claiming to have been designatedby employees involved in the proceeding.

(b) The hearing, usually open to thepublic, is held before a hearing officerwho normally is an attorney or field ex-aminer attached to the regional officebut may be another qualified official.The hearing, which is nonadversary incharacter, is part of the investigation inwhich the primary interest of theBoard's agents is to insure that the rec-ord contains as full a statement of thepertinent facts as may be necessary fordetermination of the case by the Board.The parties are afforded full ojportunityto present their respective positions andto produce the significant facts in sup-port of their contentions. In most casesa substantial number of the relevantfacts are undisputed and stipulated.The parties are permitted to argue orallyon the record before the hearing officer.

(c) Upon the close of the hearing, theentire record in the case is forwarded tothe Board in Washington, D. C. Thehearing officer also transmits an analysisof the issues and the evidence, but makesno recommendations in regard to reso-lut4on of the dispute. All parties mayfile briefs with the Board within 7 daysafter the close of the hearing and mayalso request to be heard orally by theBoard. Because of the nature of theproceedings, however, permission toargue orally is rarely granted. After re-

FEDERAL REGISTER 3257

NLRB Exhibit A


RULES AND REGULATIOMS

view of the entire case, the Board issuesits decision either dismissing the petitionor directing that an election be held. 'Inthe latter event, the election is conductedunder the supervision of the regional di-rector in the manner already describedin § 101.19.

(d) The parties have the same right§,and the same procedure is followed, withrespect to objections to the conduct ofthe election and challenged ballots, ashas already been described in connectionwith the postelection procedures in casesinvolving consent elections to be fol-lowed by Board certifications.

(e) If the election involves two ormore labor organizations and if the elec-tion results are inconclusive because nochoice on the ballot received the ma-jority of valid votes cast, a runoff elec-tion is held as provided in Part 102 ofthis chapter (the Board's rules andregulations).SUBPART D-REFERENDUM CASES UNDER SEC-

TION 9 (e) (1) AND (2) OF THE ACT

§ 101.22 Initiation of recission of au-thority cases. The investigation of thequestion as to whether the authority ofa labor organization to make an agree-ment requiring membership in a labororganization as a condition of employ-ment is to be rescinded is initiated bythe filing of a petition by an employeeor group of employees on behalf of 30percent or more of the employees in abargaining unit covered by an agreementbetween their employer and a labor or-ganization requiring membership in suchlabor organization. The petition mustbe in writing and signed, and either mustbe notarized or must contain a declara-tion by the person signing it, under thepenalties of the Criminal Code, that itscontents are true and correct to the bestof his knowledge and belief. It is filedwith the regional director fok the regionin which the alleged appropriate bar-gaining unit exists or; if the bargainingunit exists in two or more regions, withthe regional director for any such re-gions. The blank form, which is sup-plied by the regional office upon request,provides, among other things, for a de-scription of the bargaining unit coveredby the agreement, the approximate num-ber of employees involved, and the namesof any other labor organizations whichclaim to represent the employees. Peti-tioner must supply with the petition, orwithin 43 hours after filing, its evidenceof authorization from the emlloyees.

§ 101.3 Investigation of petition;withdrawals and dismissals. (a) Uponreceipt of the petition in the regionaloffice, it is filed, docketed, and assigned toa member of the staff, usually a fieldexaminer, for investigation. He con-ducts an investigation to ascertain (1)whether the employer's operations affectcommerce within the meaning of the act,(2) whether there is in effect an agree-ment requiring as a condition of employ-ment membership in a labor organiza-tion, (3) whether petitioner has beenauthorized by at least 30 percent of theemployees to file such a petition, and (4)whether an election would effectuate thepolicies of the act by providing for a freeexpression of choice by the employees.

The evidence of designation submittedby petitioner, usually in the form of cardssigned by individual employees author-izing the filing of such a petition, ischecked to determine the proportion ofemployees who desire rescission.

(b) Petitioner may on its own initia-tive request the withdrawal of the peti-tion if the investigation discloses that anelection is inappropriate, because, amongother possible reasons, petitioner's card-showing is insufficient to meet the 30-percent .statutory requirement referredto in paragraph (a) of this section.

(0) For the same or similar reasonsthe regional director may request thepetitioner to withdraw its petition. Ifpetitioner, despite the regional director'srecommendation, refuses to withdrawthe petition, the regional director thendismisses the petition, stating thegrounds for his dismissal and informingpetitioner of his right of appeal to theBoard in Washingto D. C. The peti-tioner may within 10 days appeal fromthe regional director's dismissal by filingsuch request with the Board in Wash-ington, D. C. The request shall containa complete statement setting forth thefacts and reasons upon which the requestis made. After a full review of the file,the Board, with the assistance of its staff,may sustain the dismissal, stating thegrounds for its affirmance, or may directthe regional director to take furtheraction.

§ 101.24 Consent agreements provid-ing for election. The Board makes avail-able to the parties two types of informal-consent procedures through which au-thorization issues can be resolved with-out resort to formal procedures. Theseinformal agreements are commonlyreferred to as (a) consent-election agree-ment, followed by regional director's de-termination, and (b) consent-electionagreement, followed by Board certifica-tion. Forms for use in these informalprocedures are dvailable in regionaloffices. The procedures to be used inconnection with a consent-electionagreement providing for regional direc-tor's determination and a consent-election agreement providing for Boardcertification are the same as those al-ready described in Subpart C of this partin connection with representation casesunder section 9 (p) of the act, exceptthat no provision is made for runoffelections.

§ 101.25 -Procedure respecting electfonconducted without hearing. If the re-gional director determines that the caseis an appropriate one for election with-out formal hearing, an election is con-ducted as quickly as possible among theemployees and upon the conclusion ofthe election the regional director fur-nishes to the parties a tally of the ballots.The parties, however, have an oppor-tunity to make appropriate challengesand objections to the condpct of theelection and they have the same rights,and the same procedure is followed, withrespect to objections to the conduct ofthe election and challenged ballots, ashas already been described in SubpartC of this part in connection with thepostelection procedures in representa-

tion cases under section 9 (c) of the act,except that no provision is made for arunoff electicn. If nosuch objections arefiled within 5 days and if the challengedballots are insufficient in number toaffect the results of the election, the re-gional director issues to the parties acertification of the results of the election,with the same force and effect as if issuedby the Board.

§ 101.26 Formal hearing and proce-dure respecting election conducted afterhearing. (a) If the preliminary inves-tigation indicates that there are substan-tial issues which require Board deter-mination before an appropriate electionmay be held, the regional director willinstitute formal proceedings by issuanceof a notice of hearing on the issues which,after hearing, is followed by Board de-cision and direction of election or dis-missal. The notice of hearing togetherwith a copy of the petition is servedupon petitioner, the employer, and uponany other known persons or labor or-ganizations claiming to have been desig-nated by employees involved in the pro-ceeding.

(b) The hearing, usually open to thepublic, is held before a hearing officerwho normally is an attorney or field ex-aminer attached to the regional officebut may, be another qualified official.The hearing, which is nonadversary incharacter, is part of the investigation inwhich the primary interest of the Board'sagents is to insure that the record con-tains as full a statement of the pertinentfacts as may be necessary for determina-tion of the case by the Board. The par-ties are afforded full opportunity to pre-sent their respective positions and toproduce the significant facts in supportof their contentions. In most cases asubstantial number of the relevant factsare undisputed and stipulated. Theparties are permitted to argue orally onthe record before the hearing officer.

(c) Upon the close of the hearing, theentire record in the case is then for-warded to the Board in Washington,D. C., together with an informal anal-ysis by the hearing officer of the issuesand the evidence but without recommen-dations. All parties may file biiefs withthe Board within 7 days after the closeof the hearing and may also request tobe heard orally by the Board. Becauseof the nature of the proceedings, how-ever, permission to argue orally is rarelygranted. After review of the entirecase, the Board issues its decision eitherdismissing the petition or directing that'n election be held. In the latter event,the election is conducted under the su-pervision of the regional director in themanner already described in § 101.19.

(d) The parties have the same rights,and the same procedure is followed, withrespect to objections to the conduct ofthd' election and challenged ballots ashas already been described in connectionwith the postelection procedures in casesinvolving consent elections to be followedby Board certifications.SUBPART E-JURISDICTIONAL DISPUTE CASES

UNDER SECTION 10 k) OF THE ACT

§ 101.27 Initiation of proceedings to-hear and determine urisdictional dis-

3259

NLRB Exhibit A



putes under section 10 (k). The inves-tigation of a jurisdictional dispute undersection 10 (k) is initiated by the filingof a charge, as described in § 101.2, byany person alleging a violation of para-graph (4) (D) of section 8 (b).

§ 101.28 Investigation of c h a r g e s;withdrawal of charges; dismissal ofcharges and appeals to Board. Thesematters are handled as described in§§ 101.3 to 101.7, inclusive. Cases in-volving violation of paragraph (4) (D)of section 8 (b) are given priority overall other cases in the office except casesunder paragraphs (4) (A), (4) (B), and(4-) (C) of section 8 (b).

§ 101.29 Initiation of formal action;settlement. If, after investigation, itappears to the regional director that theBoard should determine the dispute un-der section 10 (k) of the act, he issues anotice of filing of the charge togetherwith a notice of hearing which includesa simple statement of issues involved inthe jurisdictional dispute and which isserved on all parties to the dispute outof which the unfair labor practice isalleged to have arisen. The hearing isscheduled for not less than 10 days afterservice of the notice of hearing. If theparties present to the regional directorsatisfactory evidence that they have ad-justed the dispute, the regional directorwithdraws the notice of hearing andeither permits the withdrawal of thecharge or dismisses the charge. If theparties submit to the regional directorsatisfactory evidence that they haveagreed upon methods for the voluntaryadjustment of the dispute, the regionaldirector shall defer action upon thecharge and shall withdraw the notice ofhearing if issued. The parties may agreeon an arbitrator, a proceeding under sec-tion 9 (c) of the act, or any other satis-factory method to resolve the dispute.

§ 101.30 Hearing. If the parties havenot adjusted the dispute or agreed uponmethods of voluntary adjustment, ahearing, usually open to the public, isheld before a hearing officer. The hear-ing is nonadversary in character, and theprimary interest of the hearing officer isto insure that the record contains as fulla statement of the pertinent facts asmay be necessary for a determination ofthe issues by the Board. All parties areafforded full opportunity to present theirrespective positions and to produce evi-dence in support of their contentions.The parties are permitted to argue orallyon the record before the hearing officer.At the close of the hearing, the case istransmitted to the Board for decision.The hearing officer prepares an analysisof the issues and the evidence, but makesno recommendations in regard to resolu-tion of the dispute.

§ 101.31 Procedure before the Board.The parties have 7 days after the close ofthe hearing, subject to any extensionthat may have been granted, to file briefswith the Board and to request oral argu-ment which the Board may or may notgrant. The Board then considers theevidence taken at the hearing and thehearing officer's analysis together withany briefs that may be filed and the oralargument, if any, and issues its deter-

FEDERAL REGISTER

mination of the labor organization orthe particular trade, craft, or class ofemployees which shall perform the par-ticular work tasks in issue or make otherdisposition of the matter.

§ 101.32 Compliance with determina-tion; further proceedings. After the is-suance of determination by the Board,the regional director in the region inwhich the proceeding arose communi-cates with the parties for the purpose ofascertaining their intentions in regardto compliance. Conferences may be heldfor the purpose of working out details.If the regional director is satisfied thatthe parties are complying with the deter-mination, he dismisses the charge. Ifthe regional director is not satisfied thatthe parties are complying, he issues acompliant and notice of hearing, charg-ing violation of section 8 (b) (4) (D) ofthe act, and the proceeding follows theprocedure outlined in §§ 101.8 to 101.15,inclusive.SUBPART F-PROCEDURE UNDER SECTION 10

(i) AND (I) OF THE ACT

§ 101.33 Application for temporary re-lief or restraining orders. 'Whenever theregional director deems it advisable toseek temporary injunctive relief undersection 10 (j), or whenever he deter-mines that complaint should issue alleg-

"ing violation of section 8 (b) (4) (A),(B), or (C), or whenever he deems itappropriate to seek temporary injunc-tive relief for a violation of section 8 (b)(4) (D), the officer or regional attorneyto whom the matter has been referredwill make application for appropriatetemporary relief or restraining order inthe district court of the United Stateswithin which the unfair labor practiceis alleged to have occurred or withinwhich the party sought to be enjoinedresides or tjansacts business.

§ 101.34 Change of circumstances.Whenever a temporary injunction hasbeen obtained pursuant to section 10 (j)and thereafter the trial examiner hear-ing the complaint, upon which the deter-mination to seek such injunction waspredicated, recommends dismissal ofsuch complaint, in whole or in part, theofficer or-regional attorney handling thecase for the Board suggests to the districtcourt which issued the temporary in-junction the possible change in circum-stances arising out of the findings andrecommendations of the trial examiner.-

PART 102-RULES AND REGULATIONS,SERIES 7

Sec.102.1102.2102.3102.4102.5102.6102.7102,8

Subpart A-Definitions

Terms defined in section 2 of the act.Act; Bgard; Board agent.General counsel.Region.Regional director; regional attorney.Trial examiner; hearing officer.State.Party.

Subpart B-Procedure Under Section 10 (a) to (i)of the Act for the Prevention of Unfair LaborPractices

CHARGE

102.9 Who may file; withdrawal and dis-missal.

102.10 Where to file.

3259

Sec.102.11102.12102.13

102.14

102.15

102.16102.17102.18102.19

Forms; jurat or declaration.Contents.Compliance with section 9 (f), (g),

and (h) of the act.Service of charge.

COMPLAINT

When and by whom issued; contents;service.

Hearing; extension.Amendment.WlthdTawal.Review by the general counsel of re-

fusal to issue.

ANSWER

102.20 Answer to complaint; time for filing:contents; allegations not denieddeemed admitted.

102.21 Where to file; service upon theparties; form.

102.22 Extension of time for filing.102.23 Amendment.

MOTIONS102.24 Motions; where to file prior to hear-

ing and during hearing; contents;service on other parties.

102.25 Ruling on motions; where to file mo-tions after hearing and beforetransfer of case to Board.

102.26 Motions; rulings and orders part ofthe record; rulings not to be ap-pealed directly to Board withoutspecial permission; requests forspecial permission to appeal.

102.27 Review of granting of motion to dis-miss entire complaint; reopeningof record.

102.28 Filing of answer or other participa-tion in proceedings not a waiverof rights.

INTERVENTION

102.29 Intervention; requisites: rulings onmotions to intervene.

WITNEssEs, DEPosiTioNs, AND SUBPENAS

102.30 Examination of witnesses; deposi-tions.

102.31 Issuance of subpenas; petitions torevoke subpenas; right to inspector copy data.

102.32 Payment of witness fees and mileage;fees of persons taking depositions.

TRANSFER, CONSOLIDATXON, AND SEVERANCE

102.33 Transfer of charge and proceedingfrom region to region; consoIlda-tion of proceedings in same region;severance.

HEARINGS

102.34 Who shall conduct; to be public un-less otherwise ordered.

102.35 Duties and powers of trial examiners.102.36 Unavailability of trial examiners.102.37 Disqualification of trial examiners.102.38 Rights of parties.102.39 Rules of evidence controlling so far

as practicable.102.40 Stipulations of fact admissible.102.41 Objection to conduct of hearing:

how made; objections not waivedby further participation.

102.42 Filing of briefs and proposed findingswith the trial examiner and oralargument at the hearing.

102.43 Continuance and adjournment.102.44 Misconduct at hearing before a trial

examiner or the Board; refusal ofwitness to answer questions.

INTERMEDIATE REPORT AND TRANSFLR orCASE TO TEE BOARD

102.45 Intermediate report and recom-mended order; contents; service;transfer of the case to the Board;contents of record In case.

NLRB Exhibit A


RULES AND REGULATIONS

ExCEPTIONS TO THE RECORD AND PROCEEDINGS

Sec.

102.46 Except!ons or supporting briefs; timefor filing; where to file; service onparties; extension of time; effect offailure to include matter in excep-tions; oral arguments.

102.47 Filing of motion after transfer ofcase to Board.

PROCEDUR BEFORE THE BOARD

102.48 Action of Board upon expiration oftime to file exceptions to inter-mediate report.

102.49 Modification or setting aside of orderof Board before record filed incourt; action thereafter.

102.50 Hearings before Board or memberthereof.

102.51 Settlement or adjustment of ssuesm

BACK-PAY PROCEEDINGS

102.52102.53102.54102.55102.56102.57102.58102.59

Initiation of proceedings.Contents of back-pay specification.Answer to back-pay specification.Mxtenzion of time for filing.Extenslon of date of hearing.Amendment.Withdrawal.Hearing; posthearing procedure.

Subpart C-Procedure Under Section 9 (c) of theAct for the Determination-of Questions Con-cerning Representation of Employees

102.60 Petition for certification or decerti-fication; who may file; where tofile; withdrawal.

102.61 Contents of petition for certification;contents of petition for decertifica- -tion.

102.62 Consent-election agreements.102.63 Investigation of petition by regional

director; notice of hearing; servicaof notice; withdrawal of notice.

102.64 Conduct of hearing.102.65 Notions; interventions.102.66 Introduction of evidence; rights of

parties at hearing; subpenas.102.67 Record; what constitutes; transmis-

sion to Board.102.68 Proceedings before the Board; further

hearing; briefs; Board direction ofelection; certification of results.

102.69 Election procedure; tally of ballots;-objections; certification by regionaldirector; report on challenged bal-lots; report on objections; excep-tions; action of the Board;hearing.

102.70 Runoff election.102.71 Refusal to issue notice of hearing;

appeals to Board from action of theregional director.

102.72 Filing petition with general counsel;investigation upon motion of gen-eral counsel; transfer of petitionand proceeding from region togeneral counsel or to another re-gion; consolidation of proceedingsin same region; severance; pro-cedure before general counsel incases over which he has assumedjurisdiction.

Subpart D-Procedure for Referendum UnderSection 9 (e) of the Act

102.73 Petition for referendum under sec-tion 9 (e) (1) of the act; who mayfile; where to file; withdrawal.

102.74 Contents of petition to rescindauthority.

102.75 Investigation of petition by regionaldirector; consent referendum; di-rected referendum.

102.76 Hearing; posthearing procedure.102.77 Method of conducting balloting:

postballoting procedure.102.78 Refusal to conduct referendum; ap-

peal to Board.

Subpart E-Procedure To Hear and Determine T of the Labor Management RelationsDisputes Under Section 10 ik) of the Act Act, 1947.

Sec.102.79 Initiation of proceedings.102.80 Notice *of hearing; hearing; proceed-

ings before the Board; briefs; de-termination of dispute.

102.81 Compliance with determination; fur-ther proceedings.

102.82 Review of determination.102.83 Alternative procedure.

Subpart F-Procedure in Cases Under Section 10(I) and I1) of the Act

102.84 Expeditious processing of section 10(j) cases.

102.85 Priority of cases pursuant to section10 (1) of the act.

102.86 Issuance of complaint promptly.102.87 Expeditious processing of section 10

(1) cases in successive stages.

Subpart G-Servce and Filing of Papers

102.88 Service of process and papers; proofof service.

102.89 Same; by parties; proof of service.102.90 Date of service; filing of proof of

service.102.91 Time; additional time after service by

mail.

Subpart H-Certifcation and Signature ofDocuments

102.92 Certification of papers and docu-ments.

102.93 Signature of orders.

Subpart I-Records and Information102.94 Files, records, etc., in exclusive cus-

tody of Board and not subject toinspection; formal documents and,final opinions and orders subjectto inspection.

102.95 Same; Board employees prohibitedfrom producing files,.records, etc.,pursuant to subpena ad testifi-candum or subpena duces tecum,prohibited from testifying in re-gard thereto.

Subpart J-Practice Before the Board of FormerEmployees

102.96 Prohibition of practice before Boardof its former regional employees incases pending in region during em-ployment.

102.97 Same; application to former employ-ees of Washington staff.

Subpart K-Construction of Rules

102.98 Rules to be liberally construed.

Subpart L-Enforcement of Rights, Privileges,and Immunities Granted or Guaranteed UnderSection 222 If), Communications Act of 1934,as Amended, to Employees of Merged Tele-graph Carriers

102.99 Enforcement.

Subpart M-Amendments

102.100 Amendment or rescission of rules.102.101 Petitions for issuance, amendment,

or repeal of rules.102.102 Action on petition.

AUTorry: §§ 102.1 to 102.102 issued undersec. 6, 49 Stat. 452, as amended; 29 U. S-C.156.

SUBPART A-DEFINITIONS

§ 102.1 Terms defined in section 2 ofthe act. The terms "person," "employ-er," "employee," "representative," "labororganization," "commerce," "affectingcommerce," and "unfair labor practice,"as used in this part, shall have the mean-ings set forth in section 2 of the NationalLabor Relations Act, as amended by title

§ 102.2 Act; Board; Board agent. Theterm "act" as used in this part shallmean the National Labor Relations Act,as amended. The term "Board" shallmean the National Labor RelationsBoard and shall include any group ofthree or more members designated pur-suant to section 3 (b) oL the act. Theterm "Board agent" shall mean anymember, agent, or agency of the Board,including its general counsel.

§ 102.3 General counsel. The term"general counsel" as used in this partshall mean the general counsel undersection 3 (d) of the act.

§ 102.4 Region. The term "region" asused in this part shall mean that partof the United States or any Territorythereof fixed by the Board as a particularregion.

§ 102.5 Regional director; regional at-torney. The term "regional director" asused in this part shall mean the agentdesignated by the Board as regional di-rector'for a particular region. The term"regional attorney" as used in this partshall mean the attorney designated bythe Board as regional attorney for aparticular region.

,§ 102.6 Tripal examiner; hearing offi-cer. The term "trial examiner" as usedin this part shall mean the agent of theBoard conducting the hearing in an un-fair labor practice or Telegraph Merger.Act proceeding. The term "hearing of-ficer" as used in this part shall mean theagent of the Board conducting the hear-ing in a proceeding under section 9 or ina dispute proceeding' under section 10(k) of the act.

§ 102.7 State. The term "State" asused in this part shall include the Dis-trict of Columbia and all States, Terri-tories, and possessions of the UnitedStates.

§ 102.8 Party. - The term "party" asused in this part shall mean the regionaldirector in whose region the proceedingis pending and any person named oradmitted as a party, or properly seekingand entitled as of right to be admitted asa party, in any Board proceeding, in-cluding, without limitation, any personfiling a charge or petition under the act,any person named as respondent, as em-ployer, or as party to a contract in anyproceeding under the act, and any labororganization alleged to be dominated,assisted, or supported in violatibn of sec-tion 8 (a) (1) or 8 (a) (2) of the act;but nothing in this part shall be con-strued to prevent the Beard or its desig-nated agent from limiting any party toparticipate in the proceedings to the ex-tent of his interest only.

SUBPART B--PROCEDURE UNDER SECTION 10(a) TO (i) OF THE ACT FOR THE PREVENTIONOF UNFAIR LABOR PRACTICES'

- CHAkGE§ 102.9 Who may file; withdrawal

and dismissal. A charge that any person1 Procedure under see. 10 (j) to (I) of the

act is governed by Subparts E and F of thispart.

NLRB Exhibit A



has engaged in or is engaging in any un-fair labor practice affecting commercemay be made by any person: Provided,That if such charge is filed by a labororganization, no complaint will be issuedpursuant thereto, unless such labororganization is in compliance with therequirements of section 9 (f), (g), and-(h) of the act, within the meaning of§ 102.13. Any such charge may be with-drawn, prior to the hearing, only withthe consent of the regional director withwhom such charge was filed; at the hear-ing and until the case has been trans-ferred to the Board pursuant to § 102.45,upon motion, with the consent of thetrial examiner designated to conduct thehearing; and after the case has beentransferred to the Board pursuant to§ 102.45, upon motion, with the consentof the Board. Upon withdrawal of anycharge, any complaint based thereonshall be dismissed by the regional di-rector issuing the complaint, the trialexaminer designated to conduct thehearing, or the Board.

§ 102.10 Where to file. Except asprovided in § 102.33 such charge shall befiled with the regional director for theregion in which the alleged unfair laborpractice has occurred or is occurring. Acharge alleging that an unfair laborpractice has occurred or is occurring intwo or more regions may be filed withthe regional director for any of suchregions.

§ 102.11 Forms; lurat; or declaration.Such charge shall be in writing andsigned, and either shall be sworn to be-fore a notary public, Board agent, orother person duly authorized by law toadminister oaths and take acknowledg-ments or shall contain a declaration bythe person signing it, under the penaltiesof the Criminal Code, that its contentsare true and correct to the best of hisknowledge and belief. Three additionalcopies of such charge shall be filed to-gether with one additional copy for eachnamed party respondent.,

§ 102.12 Contents. Such charge shallcontain the following:

(a) The full name and address of theperson making the charge.

(b) If the charge is filed by a labororganization, the fullname and addressof any national or international labororganization of which it is an affiliate orconstituent unit.

(c) The full name and address of theperson against whom the charge is made(hereinafter referred to as the "respond-ent").

(d)- A clear and concise statement ofthe facts constituting the alleged unfairlabor practices affecting commerce.

§ 102.13 Compliance with section 9(f), (g), and (h) of the act. (a) Forthe purpose of the rules and regulationsin this part, compliance with section 9(f) and (g) of the act means (1) thatthe Secretary of Labor has issued to thelabor organization, pursuant to the rulesof the Department of Labor, a lettershowing that the labor organization has

2 A blank form for making a charge will besupplied by the regional director uponrequest.

FEDERAL REGISTER

.led the .material required under section9 (f) and (g) of the act; (2) that thelabor organization has filed with thegeneral counsel in Washington, D. C., orwith the regional director, either as partof the charge (or petition) or otherwise,the duplicate copy of such complianceletter; and (3) that the labor organiza-tion has filed with the general counselor with the regional director for theregion in which the proceeding is pend-ing or in which it customarily files cases,either as part of the charge (or petition)or otherwise, a declaration executed byan authorized agent stating that thelabor organization has complied withsection 9 (f) (B) (2) of the act requiringthat it furnish to all of its members copiesof the financial report filed with theDepartment of Labor, and setting forththe method by which such compliancewas made.

(b) For the purpose of the rules andregulations in this part, compliance withsection 9 (h) of the act means that, in thecase of a national or international labororganization, it has filed with the gen-eral counsel in Washington, D. C., and, inthe case of a local labor organization,that any national or international labororganization of which it is an affiliate orconstituent body has filed with the gen-eral counsel in Washington, D. C., andthat the labor organization has filed withthe regional director in the region inwhich the proceeding is pending:

(1) A declaration by an authorizedrepresentative of the labor organization,executed contemporaneously with thecharge (or petition) or within the pre-ceding 12-month period, listing the titlesof all offices of the filing organization andstating the name of the incumbent, ifany, in each such office and the date ofexpiration of each incumbent's term.

(2) An affidavit by each officer re-ferred to in subparagraph (1) of thisparagraph, executed contemporaneouslywith the charge (or petition) or withinthe preceding 12-month period, statingthat he is not a member of the Commu-nist Party or affiliated with such party,and that he does not believe in, and isnot a member of or supports any organ-ization that believes in or teaches, theoverthrow of the United States Govern-ment by force or by any illegal or uncon-stitutional methods.

(3) The term "officer" as used in sub-paragraph (2) of this paragraph shallmean any person occupying a positionidentified as an office in the constitutionot the labor organization; except, how-ever, that where the Board has reason-able cause to believe that a labor organ-

'ization has omitted from its constitutionthe designation of any position as anoffice for the purpose of evading or cir-cumventing the filing requirements ofsection 9 (h) of the act, the Board may,upon appropriate notice, conduct an in-vestigation to determine the facts in thatregard, and where the facts appear towarrant such action the Board may re-quire affidavits from persons other thanincumbents of positions identified by theconstitution as offices before the labororganization will be recognized as havingcomplied with section 9 (h) of the act.

3261

§ 102.14 Service of charge. Upon thefiling of a charge, the charging partyshall be responsible for the timely andproper service of a copy thereof uponthe person against whom such charge ismade. The regional director will, as amatter of course, cause a copy of suchcharge to be served upon the personagainst whom the charge is made, buthe shall not be deemed to assume respon-sibility for such service.

COAMPLAMT

§ 102.15 When and by whom issucd:contents; service, After a charge hasbeen filed, if it appears to the regionaldirector that formal proceedings in re-spect thereto should be instituted, heshall i£sue and cause to be served upon allthe other parties a formal complaint inthe name of the Board stating the unfairlabor practices and containing a notice ofhearing before a trial examiner at aplace therein fixed and at a time not lessthan 10 days 'after the service of thecomplaint.

§ 102.16 Hearing; extension. Uponhis own motion or upon proper causeshown by any other party, the regionaldirector issuing the complaint may ex-tend the date of such hearing.

§ 102.17 Amendment. Any such com-plaint may be amended upon such termsas may be deemed just, prior to the hear-ing, by the regional director issuing thecomplaint; at the hearing and until thecase has been transferred to the Boardpursuant to § 102.45, upon motion, by thetrial examiner designated to conduct thehearing; and after the case has beentransferred to the Board pursuant to§ 102.45, at any time prior to the issuanceof an order based thereon, upon motion,by the Board. 1-

§ 102.18 Withdrawal. Any such com-plaint may be withdrawn before thehearing by the regional director on hisown motion.

§ 102.19 Review by the general couzn-sel of refusal to issue. If, after thecharge has been filed, the regional di-rector declines to issue a complaint, heshall so advise the parties in writing, ac-companied by a simple statement of theprocedural or other grounds. The personmaking the charge may obtain a reviewof such action by filing a request thereforwith the general counsel in Washington.D. C., and filing a copy of the requestwith the regional director, within 10 daysfrom the service of the notice of such.refusal by the regional director. Therequest shall contoin a complete state-ment setting forth the facts and reasonsupon which the request is based.

ANswP

§ 102.20 Answer to complaint: t',,iefor filing: contents; allegationg not dc-nied deemed admitted. The respondentshall, within 10 days from the service ofthe complaint, file an answer thereto.The respondent shall specifically admit,deny, or explain each of the facts al-leged in the complaint, unless the re-spondent is without knowledge, in xwhchcase the respondent shall so state, suchstatement operating as a denial. Allallegations in the complaint, if no ansu er

NLRB Exhibit A


3262

is filed, or any allegation in the com-plaint not specifically denied or ex-plained in an answer filed, unless therespondent shall state in the answer thathe is without knowledge, shall be deemedto be admitted to be true and shall be sofound by the Board, unless good causeto the contrary is shown.

§ 102.21 Where to file; service uponthe parties; form. An original and fourcopies of the answer shall be filed withthe regional director issuing the com-plaint. Immediately upon the filing ofhis answer, respondent shall serve a copythereof on each of the other parties.An answer of a party represented bycounsel shall be signed by at least oneattorney of record in his individual name,whose address shall be stated. A partywho is not represented by an att6rneyshall sign his answer and state his ad-dress. Except when otherwise specifi-cally provided by rule or statute, ananswer need not be verified or accom-panied by affidavit. The signature ofan attorney constitutes a certificate byhim that he has read the answer; thatto the best of his knowledge, informa-tion, and belief there is good ground tosupport it; and that it is not interposedfor delay. If an answer is not signed orIs signed with intent to defeat the pur-pose of this rule, it may be stricken assham and false and the action may pro-ceed as though the answer had not beenserved. For a willful violation of thisrule an attorney may be subjected toappropriate disciplinary action. Similaraction may be taken if scandalous or in-decent matter is inserted.

§ 102.22 Extension of time for filing.Upon his own motion or upon propercause shown by any other party the re-gional director issuing the complaint mayby written order extend the time withinwhich the answer shall be filed.

§ 102.23 Amendment. The respond-ent may amend his answer at any timeprior to the hearing. During the hearingor subsequent thereto, he may amendhis answer in any case where the com-plaint has been amended, within suchperiod as may be fixed by the trial exam-iner or the Board. Whether or not thecomplaint has been amended, the answermay, in the discretion of the trial exam-iner or the Board, upon motion, beamended upon such terms and withinsuch periods as may be fixed by the trialexaminer or the Board.

MOTIONS

Z 102.24 Motions; where to fle priorto hearing and during hearing; contents;service on other parties. All motionsmade prior to the hearing shall be filedin writing with the regional-director is-suing the complaint, and shall brieflystate the order or relief applied for andthe grounds for such motion. The mov-ing party shall file an original and four'copies of all such motions and imme-diately serve a copy thereof upon each ofthe other parties. All motions made atthe hearing shall be made in writing tothe trial examiner or stated orally on therecord.

§ 102.25 Ruling on motions; where tofile motions after hearing and before


-transfer of case to Board. The trial ex-aminer designated to conduct the hear-ing shall rule upon all motions (exceptas provided in §§ 102.16, 102.22, 102.29,and 102.47). The trial examiner may,before the hearing, rule on motions filedprior to the hearing, and shall causecopies of his. ruling to be served upon allthe parties. All motions filed subsequentto the hearing, but before the transferof the case to the Board pursuant to§ 102.45, shall be filed with the trial ex-aminer, care of the chief trial examinerin Washington, D. C., or associate chieftrial examiner, San Francisco, California,as the case may be, and a copy thereofshall be served on each of the parties.Rulings by the trial examiner on mo-tions, o and any orders in connectiontherewith, if announced at the hearing,shall be stated orally on the record; inall other cases such rulings and ordersshall be issued in writing. The trial ex-aminer shall cause a copy of the same tobe served upon each of the other parties;or shall make his ruling in the inter-mediate report. Whenever the trial ex-aminer has reserved his ruling on anymotion, and the proceeding is thereaftertransferred to and continued before theBoard pursuant to § 102.50, the Boardshall'rule on such motion.

§ 102.26 Motions; rulings and orderspart of the record; rulings not to be ap-pealed directly to Board without specialpermission, requests for special permis-sion to appeal. All motions, rulings, andorders shall become part of the record,except that rulings on motions to revokesubpenas shall become a part of the rec-ord only upon the request of the Partyaggrieved thereby, as provided in§ 102.31. Unless expressly authorized bythe rules and regulations in this part,rulings by the regional director and bythe trial examiner on motions, by thetrial examiner on objections, and ordel'sin connection therewith, shall not be ap-pealed directly to the Board except byspecial permission of the Board, but shallbe considered by the Board in reviewingthe record, if exception to the ruling ororder is included in the statement ofexceptions filed with the Board, pursuantto § 102.46. Requests to the Board forspecial permission to appeal from suchrulings of the regional director or thetrial examiner shall be filed promptly,in writing, and shall briefly state thegrounds relied on. The moving partyshall immediately serve a copy thereofoni each other party.

§ 102.27 Review of granting of motionto dismiss entire complaint; reopening ofrecord. If-any motion in the nature of amotion to dismiss the complaint in itsentirety is granted by the trial examinerbefore filing his intermediate report, anyparty may obtain a review of such actionby filing a request therefor with theBoard in Washington, D. C., stating thegrounds for review and immediately onsuch filing shall serve a copy thereof onthe ,regional director and the otherparties. Unless such request for reviewis filed within 10 days from the date ofthe order of dismissal, the case shall beclosed.

§ 102.28 Filing of answer or otherparticipation in proceedings not a waiverof rights. The right to make motions orto make objections to rulings upon mo-tions shall not be deemed waived by thefiling of an answer or by other participa-tion in the proceedings before the trialexaminer or the Board.,

INTERVENTION

§ 102.29 Intervention; requisites; rul-ings on motions to intervene. Any per-son desiring to intervene in any proceed-ing shall file a motion in writing or, ifmade at the hearing, may move orallyon the record, stating the grounds uponwhich sfich person claims an interest.Prior to the hearing, such a motion shallbe filed with the regional director issu-ing the complaint; during the hearingsuch motion shall be made to the trialexaminer. An original and four copiesof written motions shall be filed. Im-mediately upon filing such motion, themoving party shall serve a copy thereofupon each of the other parties. Theregional director shall rule upon all suchmotions filed prior to the hearing, andshall cause a copy of-said rulings to beserved upon each of the other parties,or may refer the motion to the trial ex-aminer for ruling. The trial examinershall rule upon-all such motions madeat the hearing or referred to him by the.regional director, in the manner set forthin § 102.25. The regional director or thetrial examiner, as the case may be, mayby order permit intervention in person orby counsel or other representative to suchextent and upon such terms as he maydeem proper.

WITNESSES, DEPOSITIONS, AND SUBPENAS

§ 102.30 Examination of witnesses;depositions. Witnesses shall be exam-ined orally under oath, except that forgood cause shown after the issuance ofa complaint, testimony may be taken bydeposition.

(a) Applications to take depositionsshall be in writing setting forth thereasons why such depositions should betaken, the name and- post office addressof the witness, the matters concerningwhich it is expected the witness willtestify, and the time and place proposedfor the taking of the deposition, togetherwith the name and address of the personbefore whom it is desired that thedeposition be taken (for the purposes ofthis section hereinafter referred to asthe "officer"). ,Such application shallbe made to the regional director prior tothe hearing, and to the trial examinerduring and subsequent to the hearing butbefore transfer of the case to the Boardpursuant to § 102.45 or § 102.50. Suchapplication shall be served upon theregional director or the trial examiner, asthe casemay be, and upon all otherparties, not less than 7 days (when thedeposition is to be taken within the con-tinental United States) and 15 days (ifthe deposition is to be taken elsewhere)-prior to the time when it Is desiied thatthe deposition be taken. The regionaldirector or trial examiner, as the casemay be, shall upon receipt of the applica-tion, if in his discretion good cause hasbeen shown, make and serve upon theparties an order which will specify the

NLRB Exhibit A



name of the witness whose deposition isto be taken and the time, the place, andthe designation, of the officer beforewhom the witness is to testify, who mayor may not be the same officer as thatspecified in the application. Such ordershall be served upon all the other partiesby the regional director or upon allparties by the trial examiner.

(b) Such deposition may be taken be-fore any officer authorized to administeroaths by the laws of the United Statesor of the place where the examination isheld, including any agent of the Boardauthorized to administer oaths. If theexamination is held in a foreign country,it may be taken before any secretary ofembassy or legation, consul gemeral,consul, vice consul, or consular agent ofthe United States.

(e) At the time and place specified insaid ordef the officer designated to takesuch deposition shall permit the witnessto be examined and cross-examinedunder oath by all the parties appearing,and his testimony shall be reduced totypewriting by the officer or under hisdirection. All objections to questions orevidence shall be deemed waived unlessmade at the examination. The officershall not have power to rule upon anyobjections but he shall note them uponthe deposition. The testimony shall besubscribed by the witness in thepresence of the officer who shall attachhis certificate stating that the witnesswas duly sworn by him, that the deposi-tion is a truelrecord of the testimony andexhibits given by the witness, and thatsaid officer is not of counsel or attorneyto any of the parties nor interested in theevent of the proceeding or investigation.If the deposition is not signed by thewitness because he is ill, dead, cannot befound, or refuses to sign it, such factshall be included in the certifidate of theofficer and the deposition may then beused as fully as though signed. Theofficer shall immediately deliver an orig-inal and two copies of said transcript,together with his certificate, in person orby registered mail to the regional di-rector or the trial examiner, care of thechief trial examiner in Washington,D. C., or associate chief trial examiner,San F ancisco, California, as the casemay be.

(d) The trial examiner shall rule uponthe admissibility of the deposition orany part thereof.

(e) All errors or irregularities in com-pliance with the provisions of this sectionshall be deemed waived unless a motionto suppress the deposition or some partthereof is made with reasonable prompt-ness after such defect is or, with duediligence, might have been ascertained.

(f) If the parties so stipulate inwriting, depositions may be taken beforeany person at any time or place, uponany notice and in any manner, and whenso taken may be used like other deposi-tions.

§ 102.31 .Issuance of subpenas; peti-tions to revoke subpenas; right to inspector copy data. (a) Any member of theBoard shall, on the written application ofany party, forthwith issue subpenas re-quiring the attendance and testimony of

No. 95-6

FEDERAL REGISTER

witnesses and the production of any evi-dence, including books, records, corre-spondence, or documents in their pos-session or under their control. Applica-tions for subpenas, if filed prior to thehearing, shall be filed with the regionaldirector. Applications for subpenas filedduring the hearing shall be filed with thetrial examiner. Either the regional di-rector or the trial examiner, as the casemay be, shall grant the application, onbehalf of any member of the Board.Applications for subpenas may be madeex parte. The subpena shall show onits face the name and address of theparty at whose request the subpena was.issued.

(b) Any person served with a subpena,whether ad testificandum or duces tecum,if he does not intend to comply with thesubpena, shall, within 5 days after thedate of service of the subpena upon him,petition in writing to revoke the subpena.All petitions to revoke subpenas shall beserved upon the party at whose requestthe subpena was issued. Such petitionto revoke, if made prior to the hearing,shall be filed with the regional directorand the regional director shall refer thepetition to the trial examiner or theBoard for ruling. Petitions to revokesubpenas filed during the hearing shallbe filed with the trial examiner. Noticeof the filing of petitions to revoke shallbe promptly given by the regional direc-tor or the trial examiner; as the case maybe, to the party at whose request thesubpena was issued. The trial examineror the Board, as the case may be, shallrevoke the subpena if in its opinion theevidence whose production is requireddoes not relate to any matter under in-vestigation or in question in the proceed-ings or the subpena does not describewith sufficient particularity the evidencewhose production is required, or if forany other reason sufficient in law thesubpena is otherwise invalid. The trialexaminer or the Board, as the case maybe, shall make a simple statement of pro-cedural or other grounds for the rulingon the petition to revoke. The petitionto revoke, any answer filed thereto, andany -ruling thereon shall not becomepart of the official record except upon therequest of the party aggrieved by theruling.

(c) Persons compelled to submit dataor evidence at a public proceeding are en-titled to retain or, on payment of lawkllyprescribecl costs, to procure copies ortranscripts of the data or evidence sub-mitted by them. Persons compelled tosubmit data or evidence in the nonpublicinvestigative stages of proceedings may,for good cause, be limited by the regionaldirector to inspection of the official tran-script of their testimony, but shall beentitled to make copies of documentaryevidence or exhibits which they have pro-duced.

(d) Upon the failure of any person tocomply with a subpena issued upon therequest of a private party, the generalcounsel shaU, in the name of the Boardbut on relation of such private party,institute proceedings in the appropriatedistrict court for the enforcementthereof, unless in the jtdgment of theBoard the enforcement of such subpena

3263

would be inconsistent with law and withthe policies of the act. Neither the gen-eral counsel nor the Board shall bedeemed thereby to have assumed re-sponsibility for the effective prosecutionof the same before the court.

§ 102.32 Payment of witness fees andmileage; lees of persons taking deposi-tions. Witnesses summoned before thetrial examiner shall be paid the samefees and mileage that are paid witne5sesin the courts of the United States, andwitnesses whose depositions are takenand the persons taking the same 'shallseverally be entitled to the same fees asare paid for like services in the courtsof the United States. Witness fees andmileage shall be paid by the party atwhose instance the witnesses appear andthe person taking the deposition shall bepaid by the party at whose instance thedeposition is taken.

TRANSFER, CONSOLIDATION, ANDSEVERANCE

§ 102.33 Transfer of charge and pro-ceeding from region to region; consolida-tion of proceedings in same region: sev-erance. Whenever the general counseldeems it necessary in order to effectuatethe purposes of the act or to avoid un-necessary costs or delay, he may permita charge to be filed with him in Wash-ington, D. C., or may, at any time aftera charge has been filed with a regionaldirector pursuant to § 102.10, order thatsuch charge and any proceeding whichmay have been initiated with respectthereto:

(a) Be transferred to and continuedbefore him for the purpose of investiga-tion or consolidation with any otherproceeding which may have been insti-tuted in a regional office or with him; or

(b) Be consolidated with any otherproceeding which may have been insti-tuted in the same region; or

(c) Be transferred to and continued inany other region for the purpose of in-vestigation or consolidation with anyproceeding which may have been insti-tuted in or transferred to such otherregion.

The provisions of §§ 102.9 to 102.32, in-clusive, shall, insofar as applicable, gov-ern proceedings before the general coun-sel pursuant to this section, and thepowers granted to regional directors insuch provisions shall, for the purpose ofthis section, be reserved to and exercisedby the general counsel. After the trans-fer of any-charge and any proceedingwhich may have been instituted with re-spect thereto from one region to anotherpursuant to this section, the provisionsof this subpart shall, insofar as appli-cable, govern such charge and such pro-ceeding as if the charge had originallybeen filed in the region to which thetransfer is made. Motions to sever pro-ceedings may be filed before hearing.with the regional director, and duringthe hearing, with the trial examiner.The regional director shall refer all suchmotions filed with him to the trial exam-iner for ruling. Rulings by the trialexaminer on motions to sever may beappealed to the Board in accordancewith § 102.26.

NLRB Exhibit A



H[EARInGS -

§ 102.34 Who shall conduct; to beTiublic unless otherwise ordered. Thehearing for the purpose of taking evi-dence upon a complaint shall be con-ducted by a trial examiner designatedby the chief trial examiner in Washing-ton, D. C., or the associate chief trialexaminer, Sah Francisco, California, asthe case may be, unless the Board or anymember thereof presides. At any timea trial examiner may be designated totake the place of the trial examinerpreviously designated to conduct thehearing. Such hearings-shaU be publicunless otherwise ordered by the Board orthe trial examiner.

§ 102.35 Duties and powers of trialexaminers. It shall be the duty of thetrial examiner to inquire fully into thefacts as to whether the respondent hasengaged in or is engaging in an unfairlabor practice affecting commerce as setforth in the complaint or amended com-plaint. The trial examiner shall haveauthority, with respect to cases assignedto him, between the time he is desig-nated and transfer of the case to theBoard, subject to the rules and regula-tions of the Board and within its powers:

(a) To administer oaths and affirma-.tions;

(b) To grant applications for sub-penas;

(c) To rule upon petitions to revokesubpenas;

(d) To rule upon offers of proof andreceive relevant evidence;

(e) To take or cause depQsitions to-betaken whenever the ends of justice wouldbe served thereby;

(f) To regulate the course ofthe hear-ing and, if appropriate or necessary, toexclude persons or counsel from thehearing for contemptuous conduct andto strike all related testimony of wit-nesses refusing to answer any properquestion;

(g) To hold conferences for the settle-ment or simplification of the issues byconsent of the parties, but not to adjustcases;

(h) To dispose of procedural requestsor similar matters, including motionsreferred to the trial examiner by theregional director and motions to amendpleadings; also to dismiss complaints orportions thereof, and to order hearingsreopened prior to issuance -of inter-mediate reports (recommended deci-sions) ;

(i) To make and file intermediate re-ports in conformity with section 8 of theAdministrative Procedure Act;

(j) To call, examine, and cross-examine witnesses and to introduceinto the record documentary or otherevidence; -

(k) To take any other action neces-sary under the foregoing and authorizedby the published rules and regulations ofthe Board.

§ 102.36 Unavailability of trial ex-,aminers. In theevent the trial examinerdesignated to conduct the hearing be-comes unavailable to the Board after thehearing has been concluded and beforethe filing of his intermediate report, theBoard may transfer the case to itself for

purposes of further hearing or issuanceof an intermediate report or both on therecord as made, or may request the chieftrial examiner in Washington, D. C., orassociate chief trial examiner, San Fran-cisco, California, as the case may be,to designate another trial examiner forsuch purposes.

§ 102.37 Disqualification of trial ex-aminers. A trial examiner may with-draw from . proceeding whenever hedeems himself disqualified. Any partymay request the trial examiner, at anytime following his designation by thechief trial examiner or associate chieftrial examiner and before filing of hisintermediate report, to withdraw on-ground of personal bias-or gtisqualifica-tion, by filing with him promptly uponthe discovery of the alleged facts a timelyaffidavit setting forth in detail the mat-ters alleged to constitute grounds fordisqualification. If, in the opinion of thetrial examiner, such affidavit is filed withdue diligence and is sufficient on its face,he shall forthwith disqualify himself andwithdraw from the proceeding. If thetrial examiner does not disqualify him-self and withdraw from the proceeling,he shall so rule upon the record, stdtingthe grounds for his ruling and proceedwith the hearing, or if the hearing hasclosed, he shall proceed with issuance ofhis intermediate report, and the pro-visions of § 102.26, with respect to reviewof rulings of trial examiners, shall there-upon apply.

§ 102.38 Rights of Pdrties. Any partyshall have the right- to appear at suchhearing in person, by counsel, or by otherrepresentative, to call, examine, andcross-examine witnesses, and to intro-duce into the record documentary orother evidence, except that the participa-tion of any party shall be limited to- theextent permitted by the trial examiner:And provided further, That documentaryevidence shall be submitted in duplicate.

§ 102.39 Rules of evidence controllingso far as practicable. Any such pro-ceeding shall, so far as practicable, beconducted in accordance with the rulesof evidence applicable in the districtcourts of the United States under therules of civil procedure for the districtcourts -of the United States, adopted bythe Supreme Court of the -United Statespursuant to the act of June 19, 1934(U. S. 9., title 28, sees. 723-B, 723-C).

§ 102.40 Stipulations of fact admis-,sible. In any such proceeding stipula-tions of fact may be introduced inevidence with respect to any issue.

§ 102.41 Objection to conduct of hear-ing; how made; objections not waivedby further participation. - Any objectionwith respect to the conduct of the hear-ing, including any objection to the intro-duction of evidence, may be stated orallyor in writing, accompanied by a shortstatement of the grounds of such objec-tion, and included in the record. Nosuch objection shall be deemed waived byfurther participation in'the hearing.

§ 102.42 Filing of briefs and proposedfindings with the trial examiner and oralargument at the hearing. Any partyshall be entitled, upon request, to a rea-

sonable period at the close of the hear-ing for oral argument, which shall beincluded in the stenographic report ofthe hearing. Any party shall be en-titled, upon request made before the closeof the hearing, to file a brief or .pro-posed findings and conclusions, or both,'with the trial examiner who may fix areasonable time for-such filing, but notin excess of 35 days from the close of the--hearing. Requests for further exten-sions of time shall be made to the chieftrial examiner in Washington, D. C., orassociat&-chief trial examiner, San Fran-cisco, California, as the case may be. Norequest will be considered unless re-ceived at least,3 days prior to the expi-ration of the time fixed for the filing ofbriefs or proposed findings and conclu-sions. Notice of the request for anyextension shall be immediately servedupon all other parties, and proof of serv-ice shall be furnished. -Three copies ofthe brief or proposed findings and con-clusions shall be filed with the trialexaminer, and copies shall be served uponeach of the other parties, and proof ofsuch service shall be furnished.

§ 102.43 Continuance and adjourn-ment. In the discretion of the trialexaminer, the hearing may be continuedfrom day to day, or adjourned to a laterdate or todifferent place, by announce-ment thereof at the hearing by the trialexaminer, or by other appropriate notice.

§ 102.44 Misconduct at hearing beforetrial examiner or the Board; refusal ofwitness to answer questions. (a) Mis-conduct at any hearing before a trialexaminer or before the Board shall beground for summary exclusion from thehearing.

(b) Such misconduct of an aggravatedcharacter, when engaged in by an at-torney or other representative of a party,shall be ground for suspension or disbar-ment by the Board from further practicebefore it after due notice and hearing.

(c) The refusal of a witness at anysuch hearing to answer any questionwhich has been ruled to be proper shall,in the discretion of the trial examiner,be ground for striking all testimony pre-viously given by such witness on relatedmatters.

INTERwEDIATE REPORT AND TRANSFER OFCASE TO THE BOARD -

§ 102.45 intermediate report and4 ec-ommended order; contents; service;transfer of the case to the Board; con-tents of record in case. (a) After hear-ing for the purpose of taking eridenceupon a complaint, the trial examinershall prepare an intermediate report and-recommended order, but the initial deci-sion shall be made by the Board. Suchreport shall contain findings of fact, con-clusions, and the reasons or basis there-for, upon all material issues of fact, law,or discretion presented on therecord, andthe recommended order shall containrecommendations as to what disposition

'of the case should be made, which mayinclude, if it be found that the respond-ent has engaged in or is engaging in thealleged unfair labor practices, a recom-mendation for such affirmative actionby the respondent as will effectuate the

NLRB Exhibit A



policies of the act. The trial examinershall fie the original of the intermediatereport and recommended order with theBoard and cause a copy thereof to beserved upon each of the parties. Uponthe filing of the report and recommendedorder, the Board shall enter an ordertransferring the case to the Board andshall serve copies of the order, settingforth the date of such transfer, upon allthe parties. Service of the intermediatereport and of the order transferring thecase to the Board shall be complete uponmailing.

(b) The charge upon which the com-plaint was issued and any amendmentsthereto, the complaint and any amend-ments thereto, notice of hearing, answerand any amendments thereto, motions,rulings, orders, the stenographic reportof the hearing, stipulations, exhibits,documentary evidence, and depositions,together with the intermediate reportand recommended order and exceptions,shall constitute the record in the case.

ExCEPTIoNs TO THE RECORD ANDPROCEEDINGS

§ 102.46 Exceptions or supportingbriefs; time for filing; where to file;service on parties; extension of, time;effect of failure to include matter in ex-ceptions; oral arguments. (a) Within20 days, or within such.further period asthe Board may allow, from/the date ofthe service of the order transferring thecasa to the Board, pursuant to § 102.45,any party may (in accordance with sec-tion 10 (c) of the act and §§ 102.90 and102.91) file with the Board in Washing-ton, D. C.,'7 copies of a statement inwriting setting forth exceptions to theintermediate report and recommendedorder or to any other part of the recordor proceedings (including rulings uponall motions or objections), together with7 copies of a brief in support of said ex-ceptions and immediately upon suchfiling copies shall be served on each ofthe other parties; and any party may,within the same period, file 7 copies of abrief in support of the intermediate re-port and recommended order. Copies ofsuch exceptions and briefs shall immedi-ately be served on each of the otherparties. Statements of exceptions andbriefs shall designate by precise citationof page and line the- portions of therecord relied upon. Upon special leaveof the Board, any party may file a replybrief upon such terms as the Board mayimpose. Requests for such leave or forextension of the time in which tofile exceptions or briefs under author-ity of this section shall be in writing andcopies thereof shall be immediatelyserved on each of the other parties.Requests for an extension must be re-ceived by the Board 3 days prior to thedue date.

(b) No matter not included in a state-ment of exceptions may thereafter beurged before the Board, or in any furtherproceeding.

(c) Should any party desire permis-sion to argue orally before the Board,request therefor must be made in writ-ing to the Board simultaneously with thestatement of any exceptions filed pur-suant to the provisions of paragraph (a)

FEDERAL REGISTER

of this section with proof of service on allother parties furnished with such request.The Board shall notify the parties ofthe time and place of oral argument, ifsuch permission is granted.

(d) Oral arguments are limited to 30minutes for each party entitled to par-ticipate. No request for additional timewill be granted unless timely applicationis made in advance of oral argument.

(e) Exceptions to intermediate reportsand recommended orders, or to the rec-ord, briefs in support of exceptions, andbriefs in support of intermediate reportsand recommended orders shall be legiblyprinted or otherwise legibly duplicated:Provided, however, That carbon copies oftypewritten matter shall not be filedand if submitted will not be accepted.

§ 102.47 Filing of motion after trans-fer of case to Board. All motions filedafter the case has been transferred tothe Board pursuant to § 102.45 shallbe filed with the Board in Washington,D. C., by transmitting seven copiesthereof, together with an affidavit ofservice, upon each of the parties. Suchmotions shall be legibly printed or other-wise duplicated: Provided, however, Thatcarbon copies of typewritten mattershall not be filed and if submitted will notbe accepted.

PROCEDURE B3EFORE THE BOARD

§ 102.48 Action of Board upon ex-piration of time to file exceptions to in-termediate report. (a) In the event nostatement of exceptions is filed as pro-vided in this part, the findings, con-clusions, and recommendations of thetrial examiner as contained in his in-termediate report and recommendedorder shall be adopted by the Board andbecome its findings, conclusions, andorder; and all objections and exceptionsthereto shall be deemed waived for allpurposes. However, the Board may, inits discretion, order such case closedupon compliance.

(b) Upon the filing of a statement ofexceptions and briefs, as provided in§ 102.46, the Board may decide the mat-ter forthwith upon the record, or afteroral argument, or may reopen the recordand receive further evidence before amember of the Board or other Boardagent or agency, or may close the caseupon compliance with recommendationsof the intermediate report, or may makeother disposition of the case.

§ 102.49 Modification or setting asideof order of Board before record filed incourt; action thereafter. Withini the

-limitations of the provisions of section 10(c) of the act, and § 102.48, until a tran-script of the record in a case shall havebeen filed in a court, within the mean-ing of section 10 of the act, the Boardmay at any time upon reasonable noticemodify or set aside, in whole or in part,any findings of fact, conclusions of law,or order made or issued by it. There-after, the Board may proceed pursuantto § 102.50, insofar as applicable.

§ 102.50 Hearings before Board ormember thereof. Whenever the Boarddeems it necessary in order to effectuatethe purpose of the act or to avoid un-necessary costs or delay, it may, at any

3265

time after a complaint has issued pur-suant to § 102.15 or § 102.33, order thatsuch complaint and any proceedingwhich may have been instituted withrespect thereto be transferred to andcontinued before it or any meraber of theBoard. -The provisions of this subpartshall, insofar as applicable, govern pro-ceedings before the Board or any mem-ber pursuant to this section, and thepowers granted to trial examiners in suchprovisions shall, for the purpose of thissection, be reserved to and exercised bythe Board or the member thereof whoshall preside.

§ 102.51 Settlement or adjustment ofissues. At any stage of a proceedingprior to hearing, where time, the natureof the proceeding, and the public interestpermit, all interested parties shall haveopportunity to submit to the regionaldirector, with whom the charge wasfiled, for consideration facts, arguments,offers of settlement, or proposals of ad-justment.

BACK-PAY PROCEEDINGS

§ 102.52 Initiation of proceedings.After the entry of a court decree enforc-ing an order of the Board directing thepayment of back pay, if it appears to theregional director that there has arisen acontroversy between the Board and arespondent concerning the amount ofback pay due which cannot be resolvedwithout a formal proceeding, the regionaldirector shall issue and cause to be servedupon the respondent a back-pay specifi-cation in the name of the Board. Thespecification shall contain- or be accom-panied by a notice of hearing before atrial examiner at a place therein fixedand at a time not less than 15 days afterthe service of the specification.

§ 102.53 Contents of back-pay specifi-cation. The specification shall specifi-cally and in detail show, for each em-ployee, the back-pay periods brokendown by calendar quarters, the specificfigures and basis of computation as togross back pay and interim earnings, theexpenses for each 4uarter, the net backpay due, and any other pertinent infor-mation.

§ 102.54 Answer to back-pay specifi-cation-(a) Filing and service of answer.The respondent shall, within 15 daysfrom the service of the specification, filean answer thereto; an original and 4copies shall be filed with the regional di-rector issuing the specification, and acopy thereof shall immediately be servedon any other respondent jointly liable.

(b) Contents of the answer. The an-swer shall be in writing, the originalbeing signed and sworn to by the re-spondent or by a duly authorized agentwith appropriate power of attorneyaffixed, and shall contain the post officeaddress of the respondent. The respond-ent shall specifically admit, deny. orexplain each and every allegation of thespecification, unless the respondent iswithout knowledge, in which case therespondent shall so state, such statementoperating as a denial. Denials shallfairly meet the substance of the allega-tions denied. When a respondent in-tends to deny only a part of an allega-

NLRB Exhibit A



tion, the respondent shall specify somuch of it as is true and shall denyonly the remainder. As to all matterswithin the knowledge of the respondent,including but not limited to the variousfactors entering into the computation ofgross back pay, a general denial shall notsuffice. As to such matters, if the re-spondent disputes either the accuracy ofthe figures in the specification or thepremises on which they are based, heshall specifically state the basis for hisdisagreement, setting forth in detail hisposition as to the applicable premises andfurnishing the appropriate supportingfigures.

(c) Effect of failure to answer or toplead speciflcally and in detail. " If therespondent fails to file any answer with-in the time prescribed by this section,the Board may, either with or withouttaking evidence in support of the allega-tions of the specification and withoutnotice to the respondent, find the speci-fication to be true and enter such orderas may be appropriate. If the respond-ent files an answer but fails to deny anyallegation of the specification in themanner required by paragraph (b) ofthis section, and the failure so to deny isnot adequately explained, such allega-tion shall be deemed to be admitted tobe true, and may be so found by theBoard without the taking of evidencesupporting such allegation, and the re-spondent shall be precluded from Intro-ducing any evidence controverting saidallegation.

§ 102.55 Extension o1 time for filing.Upon his own motion or upon propercause shown by any respondent, the re-gional director issuing the specificationmay by written order extend the timewithin which the answer shall be filed.

§ 102.56 Extension of date of hearing.Upon his own motion or upon propercause shown, the regional director issuingthe specification may extend the date ofhearing.

§ 102.57 Amendment. After the is-suance of the notice of hearing, the spec-ification and the answer may be amendedupon leave of the trial examiner or theBoard, as the case may be, good causetherefor appearing.

§ 102.58 Withdrawal. Any such spec-ification may be withdrawn before thehearing by the regional director on hisown motion.

§ 102.59' Hearing; posthearing pro-cedure. After the issuance of a notice ofhearing, the procedures provided in§§ 102.24 to 102.51, inclusive, shall befollowed insofar as applicable.

SUBPART C-PROCEDURE UNDER SECTION 9 (diOF THE ACT FOR THE DETERMINATION OFQUESTIONS CONCERNING REPRESENTATIONOF EMPLOYEES

§ 102.60 Petition for certification ordecertification; who may file; where tofile; withdrawal. A petition for investi-,gation of a question concerning repre-sentation of employees under paragraphs(1) (A) (i) and (1) (B) of section 9 (c)of the act (hereinafter called a petitionfor certification) may be filed by anemployee or group, of employees or any

individual or labor organization actingin their behalf or by an employer. Apetition under paragraph (1) (A) (ii) ofsection 9 (c) of the act, alleging that theindividual or labor organization whichhas been certified or is being currentlyrecognized as the bargaining representa-tive is no longer such representative(hereinafter called a petition for decer-tification), may be filed by any employeeor group of employees or any individualor labor organization acting in theirbehalf. When any such petition is filedby a labor organization, no investigationshall be made of any question of repre-sentation raised by such labor organ-ization unless such labor organization isin compliance with the requirements ofsection 9 (f), (g), and (h) of the act,within the meaning of § 102.13. Peti;tions under this section shall be inwriting and signed', and either shall besworn to before a notary public, Boardagent, or. other person duly authorizedby law to administer oaths and takeacknowledgments or shall contain adeclaration by the person signing it,under the penalties of the Criminal Code,that its contents are true and correct tothe best of his knowledge and belief.Four copies of the petition shall be filed.Except as provided in § 102.72, such peti-tions shall be filed with the regional di-rector for the region wherein the bar-gaining unit exists, or, if the bargainingunit exists in two or more regions, withthe regional director for any of suchregions. Prior to the close of the hear-ing, pursuant to § 102.63, the petitionmay be withdrawn only with the consentof the regional director with whom suchpetition was filed. After the close ofthe hearing, the petition may be with-drawn only with the consent of theBoard. Whenever the regional directoror the Board, as the case may be, ap-proves the withdrawal of any petition,the case shall be closed.

§ 1 02.61 Contents of petition for cer-tification; contents of petition for decer-tification. (a) A petition for certifica-tion, when filed by an employee or groupof employees or an individual or labororganization acting in their behalf, shallcontain the following:

(1) The name of the employer.(2) The address of the establishments

involved.3) The general nature of the em-

ployer's business,W(4 A description of the bargaining

unit which the petitioner claims to beappropriate.

(5) The names and addresses of anyother persons or labor organizations whoclaim to represent any employees in thealleged appropriate unit, and brief de-scriptions of the contracts, if any, cover-ing the employees in such unit.

(6) The number of employees in thealleged appropriate unit.

(7) A statement that the employerdeclines to recognize the petitioner as therepresentative within the meaning ofsection 9 (a) of the act or that the labor

2 Blank forms for filing such petitions willbe supplied by the regional office uponrequest.

organization is currently recognized butdesires certification under the act.

(8) The name, affiliation, if any, andaddress of the petitioner.

(9) Any other relevant facts.'(b) A petition for certification, when

filed by an employer, shall contain thefollqwing:

(1) The name and address of the peti-tioner.

q) The general nature of the peti-tioner's business.

(3) A brief statement setting forththat one or more individuals or labor or-ganizations have presented to the peti-tioner a claim to be recognized as theexclusive representative of all employeesin the unit claimedto be appropriate; adescription of such unit; and the numberof employees in the unit.

(4) The name or names, affiliation, ifany, and addresses of the individuals orlabor organizations making such claimfor recognition.

(5) A statement whether the peti-tioner has contracts with any labor or-ganization or other representatives ofemployees and, if so, their expirationdate.

(6) Any other relevant facts.(c) Petitions for decertification shall

contain the following:(1) The name of the employer.(2) The address of the establishments

and a description of the bargaining unitinvolved.

(3) The general nature of the employ-er's business.

(4) Name and address of the- peti-tioner and affiliation, if any.

(5) Name or names of the individualsor labor organizations, "who have beencertified or are being currently recog-nized by the employer and who claim torepresent any employees in the unit in-volved, and the expiration date of anycontracts covering such employees.

(6) An allegation that the individuals'or labor organizations who have beencertified or are currently recognized bythe employer are no longer the repre-sentative in the appropriate unit as de-fined in section 9 (a) of the act.1 (7) The number of employees In theunit.

(8) Any 6ther relevant facts.

§ 102.62 Consent-election agreements.(a) Where a petition has been duly filed,the employer and any individuals or labororganizations representing a substantialnumber of employees involved may, withthe approval of the regional director,enter into a consent-election agreementleading to a determination by the re-gional director of the facts ascertainedafter such consent election. Such agree-ment shall include a description of theappropriate unit, the time and place ofholding the election, and the payroll tobe used in determining what employeeswithin the appropriate unit shall be eligi-ble to vote. Such consent election shallbe conducted under the direction and su-pervision of the regional director. Themethod of conducting such consent elec-tion shall be consistent with the methodfollowed by the regional' director in con-ducting elections pursuant to §§ 102.69and 102.70 except that the rulings anddeterminations by the regional director

NLRB Exhibit A



of the results thereof shall be final, andthe reg 'onal director shall issue to theparties a certification of the re~ults of theelection, including certification of repre-sentatives where appropriate, with thesame force and effect as if issued by theBoard, provided further that rulings ordeterminations by the regional directorin respect to any amendment of suchcertification shall also be final.(b) Where a petitioft has been dulyfiled, the employer and any individualsor labor organizations representing asubstantial number of the employees in-volved may, with the approval of theregional director, enter into an agree-ment providing for a waiver of hearingand a consent election leading to a deter-mination by the Board of the facts ascer-tained after such consent election, ifsuch a determination is necessary. Suchagreement shall also include a descrip-tion of the appropriate bargaining unit,the time and place of holding the elec-tion, and the payroll to be used in de-termining which employees within theappropriate unit shall be eligible to vote.Such consent election shall be conductedunder the direction and supervision ofthe regional director. The method ofconducting such election and the post-election procedure shall be consistentwith that followed by the regional direc-tor in conducting elections pursuant to§ 102.69 and 102.70.

§ 102.63 Investigation of petition byregional director; notice of hearing;service of notice; withdrawal of notice.After a petition has been filed, if noagreement such as that provided in§ 102.62 is entered into and if it appearsto the regional director that there is rea-sonable cause to believe that a questionof representation affecting commerceexists, that the policies of the act will beeffectuated, and that an election will re-flect the free choice of employees in theappropriate unit, he shall prepare andcause to be served upon the parties andupon any known individuals or labor or-ganizations purporting to act as repre-sentatives of any employees directly af-fected by such investigation, a notice ofhearing before a hearing officer at a timeand place fixed therein. A copy of thepetition shall be served with such noticeof hearing. Any such notice of hearingmay be amended or withdrawn beforethe close of the hearing by the regionaldirector on his own motion.

§ 102.64 Conduct of hearing. (a)Hearings shall be conducted by a hearingofficer and shall be open to the publicunless otherwise ordered by the hearingofficer. At any time, a hearing officermay be substituted for the hearing officerpreviously presiding. It shall be the duty,of the hearing officer to inquire fully intoall matters in issue and necessary to ob-tain a full and complete record uponwhich the Board may discharge its dutiesunder section 9 (c) of the act.

(b) The hearing officer may, in hisdiscretion, continue the hearing from dayto day, or adjburn it to a later date or toa different place, by announcementthereof at the hearing or by other ap-propriate notice.

§ 102.65 Motions; interventions. (a)All motions, including motions for inter-vention pursuant to paragraph (b) ofthis section, shall be in writing or, ifmade at the hearing, may be stated orallyon the record and shall briefly state theorder or relief sought and the groundsfor such motion. An original and fourcopies of written motions shall be fiedand a copy thereof immediately shall beserved upon each of the other parties tothe proceeding. Motions made prior tothe hearing shall be filed with the re-gional director, and motions made duringthe hearing shall be filed with the hear-ing officer. After the close of the hear-ing all motions shall be filed with theBoard. Such motions to the Board shallbe legibly printed or otherwise legiblyduplicated: Provided, however, That car-bon copies of typewritten matter shallnot be filed and if submitted will not beaccepted. Seven copies of such motionsshall be filed with the Board. The re-gional director may rule upon all motionsfiled withn him, causing a copy of saidruling to be served upon each of theparties, or he may refer the motion to thehearing officer: Provided, That if theregional director grants a motion to dis-miss the petition the petitioner may ob-tain a review of such ruling in the man-ner prescribed in § 102.71. The hearingofficer shall rule, either orally on therecord or in writing, upon all motionsfiled at the hearing or referred to him as

-hereinabove provided, except that heshall refer to the Board for appropriateaction all motions to dismiss petitions, atsuch time as the Board considers theentire record.

(b) Any person desiring to intervenein any proceeding shall make a motionfor intervention, stating the groundsupon which such person claims to havean interest in the proceeding. The re-gional director or he hearing officer, asthe case may be, may by order permitintervention in person or by counsel orother representative to such extent andupon such terms as he may deem proper,and such intervenor shall thereupon be-come a party to the proceeding.

(c) All motions, rulings, and ordersshall become a part of the record, exceptthat rulings on motions to revoke sub-penas shall become a part of the recordonly upon the request of the party ag-grieved, as provided in § 102.66 (c).Unless expressly authorized by the rulesand regulations in this part, rulings bythe regional director and by the hearingofficer shall not be appealed directly tothe Board except by special permissionof the Board, but shall be considered bythe Board when it reviews the entire rec-ord. Requests to the Board for specialpermission to appeal from such rulingsof the regional director or the hearingofficer shall be filed promptly, in writing,and shall briefly state the grounds reliedon. The moving party shall immediatelyserve a copy thereof on each other party.

(d) The right to make motions or tomake objections to rulings on motionsshall not be deemed waived by participa-tion in the proceeding.

-§ 102.66 Introduction of evidence;rights of parties at hearing; subpenas.

(a) Any party shall have the right to ap-pear at any hearing in person, by counsel,or by other representative, and any partyand the hearing officer shall have powerto call, examine, and cross-examinewitnesses and to introduce into the rec-ord documentary and other evidence.Witnesses shall be examined orally underoath. The rules of evidence prevailingin courts of law or equity shall not becontrolling. Stipulations of fact may beintroduced in evidence with respect toany issue.

(b) Any objection with respect to theconduct of the hearing, including anyobjection to the introduction of evi-dence, may be stated orally or in writing,accompaniedby a short statement ofthe grounds of such objection, and in-cluded in the record. No such objectionshall be deemed waived by further par-ticipation in the hearing.

(c) Any party may file applicationsfor subpenas in writing with the regionaldirector if made prior to hearing, or withthe hearing officer if made at the hear-ing. Applications for subpenas may bemade ex parte. The regional director orthe hearing officer, as the case may be,shall forthwith grant the subpenas re-quested. Any person served with a sub-pena, whether ad testificandum or ducestecum, if he does not intend to complywith the subpena, shall, within 5 daysafter the date of service of the subpena,petition in writing to revoke the subpena.Such petition shall be filed with the re-gional director who may either rule uponit or refer it for ruling to the hearingofficer: Provided, however, That if theevidence called for is to be produced at ahearing and the hearing has opened, thepetition to revoke shall be filed with thehearing officer. Notice of the filing ofpetitions to revoke shall be promptlygiven by the regional director or hear-ing officer, as the case may be, to theparty at whose request the subpena wasissued. The regional director or thehearing officer, as the case may be, shallrevoke the subpena if, in his opinion, theevidence whose production is requireddoes not relate to any matter under in-vestigation or in question in the pro-ceedings or the subpena does not describewith sufficient particularity the evidencewhose production is required, or if forany other reason sufficient in law thesubpena is otherwise invalid. The re-gional director or the hearing officer, asthe case may be, shall make a simplestatement of procedural or other groundsfor his ruling. The petition to revoke,any answer filed thereto, and any rulingthereon shall not become part of therecord except upon the request of theparty aggrieved, by the ruling. Personscompelled to submit data or evidenceare entitled to retain or, on payment oflawfully prescribed costs, to procurecopies or transcripts of the data or evi-dence submitted by them.

(d) (1) Misconduct at any hearingbefore a hearing officer or before theBoard shall be ground for summary ex-clusion from the hearing.

(2) Such misconduct of an aggravatedcharacter, when engaged in by an attor-ney or other representative of a party,

FEDERAL REGISTER 3267

NLRB Exhibit A



shall be ground for suspension or dis-barment by the Board from furtherpractice before it after due notice andhearing.

(3) The refusal of a witness at anysuch hearing to answer any questionwhich has been ruled to be proper shall,in the discretion-of the hearing officer,be ground for striking all testimony pre-viously given by such witness on relatedmatters.

(e) Any party shall be entitled, uponrequest, to a reasonable period at theclose of the hearing for oral argument,which shall be included in the steno-graphic report of the hearing.

(f) The hearing officer may submit ananalysis of the record to the Board buthe shall make no recommendations.

(g) Witness fees and mileage shall bepaid by the party at whose instance thewitness appears.

§ 102.67 Record; what constitutes;transinission to Board. Upon the closeof the hearing the regional director shallforward to the Board in Washington,D. C., the petition, notice of hearing, mo-tions, rulings, orders, the stenographicreport of the hearing, stipulations, ex-hibits, documentary evidence, and depo-sitions all of which shall constitute therecord in the proceeding.

§ 102.68 Proceedings b e fo r e theBoard; further hearing; briefs; Boarddirection of election; certification of re-sults. The Board shall thereupon pro-ceed, either forthwith upon the record, orafter oral argument or the submission ofbriefs, or further hearing, as it may de-termine, to direct a secret ballot of theemployees or to make other dispositionof the matter. Should any party desireto file a brief with the Board, 7 copiesthereof shall be filed with the Board inWashington, D. C., within 7 days afterthe close of the- aearing: Provided, how-ever, That prior to the close of the hear-ing and for good cause, the hearing offi-cer may grant an extension of that timenot to exceed an additional 14 days.Such brief shall be legibly printed orotherwise legibly duplicated: Provided,however, That carbon copies of type-written matter shall not be filed and ifsubmitted will not be accepted. Copiesshall be served on all other parties to theproceeding, and proof of such serviceshall be filed with the Board at the timethe briefs are filed. Requests for exten-sion of time in which to file a brief underauthority of this section not addressed tothe hearing officer during the hearingshall be in writing and copies thereofshall immediately be served on each ofthe other parties. Requests'for exten-sion of time shall be made not later than3 days before the date such briefs aredue in Washington, D. C. No reply briefmay be filed except upon special leave ofthe Board.

§ 102.69 Election procedure; tally ofballots; objections; certification by re-gional director; report on challengedballots; report on objections; exceptions;action of the Board; hearing. (a) Un-less otherwise directed by the Board, allelections shall be conducted under thesupervision of the regional director inwhose region the proceeding is pending,

All elections shall be by secret ballot.Whenever two or more labor organiza-tions are included as choices in an elec-tion, either participant may, upon itsprompt request to and approval thereofby the regional director, whose decisionshall be final, have its name removedfrom the ballot: Provided, however, Thatin a proceeding involving an employerfiled petition or a petition for decertifi-cation the labor organization certified,currently recognized, or found to beseeking recognition may not have itsname removed frpom the ballot withoutgiving timely notice in writing to allparties, including the regional director,disclaiming any representation interestamong the employees in the unit. Anyparty may be represented by observersof his own selection, subject to suchlimitations as the regional director mayprescribe. Any party and Board agentsmay challenge, for good cause, the eli-gibility of any person to participate inthe election. The ballots of such chal-lenged persons shall be impounded.Upon the conclusion of the election,'theregional director shall cause to be fur-nished to the parties a tally of the bal-lots. Within 5 days after the tally ofballots has been furnished, any partymay file with the rfegional director 4copiesof objections to the conduct of theelection or conduct affecting the resultsof the election, which shall contain ashort statement of the reasons-therefor.Such filing must be timely whether ornot the challenged ballots are sufficientin number to affect the results of theelection. Copies of such objections shallimmediately be served upon each of theother parties by the party filing them,and proof of service shall be made.

(b) If no objections a~e fied withinthe time set forth above, if the chal-lenged ballots are insufficient in numberto affect the result of the election, and ifno runoff election is to be held pursuantto § 102.70, the regional director shallforthwith issue to the parties a certifi-cation of the results of the election, in-'cluding certification of representativeswhere appropriate, with the same forceand effect as if issued by the Board, andthe proceeding will thereupon be closed.

(c) If objections are filed to the con-duct of the election or conduct affectingthe result of the election, orif0-the chal-lenged ballots are sufficient in number toaffect the result of the election, the re-gional director shall investigate such ob-jections or challenges, or both, and shallprepare and cause to be served upon theparties a report on challenged ballots orobjections, or both, including his rec-ommendations, which report, togetherVith the tally of ballots, he shall forwardto the Board in Washington, -D. C.Within 10 days from the date of issuanceof the report on challenged ballots or ob-jections, or both, or within such furtherperiod as the Board may allow uponwritten request to the Board for an ex-tension-made not later than 3 days be-fore such exceptions are due in Wash-ington, D. C., with copies of such requestserved on each of the other parties, anyparty may file with the Board in Wash--ington, D. C., 7 copies of exceptions tosuch report which shall be legibly

printed or otherwise legibly duplicated.Immediately upon the filing of such ex-ceptions, the party filing the same shallserve a copy thereof upon each of theother parties and shall file a copy withthe regional director. Proof of serviceshall be made to the Board. If no ex-ceptions are filed to such report, theBoard, upon the expiration ot the periodfor filing such exceptions, may decidethe matter forthwith upon the record ormay make other disposition of the case.The report on challenged ballots may'beconsolidated with the report on objec-tions in appropriate cases.

(d) If exceptions are filed, either tothe report on challenged ballots or objec-tions, or both if it be a consolidated re-port, and it appears to the Board thatsuch exceptions do not raise substantialand material issues with respect to theconduct or results of the election, theBoard may decide the matter forthwithupon the record, or may make other dis-position of the case. If it appears tothe Board that such exceptions raisesubstantial and material factual issues,the Board may direct the regional direc-tor or other agent of the Board to issueand cause to be served upon the parties.a notice of hearing on said exceptionsbefore a hearing officer. The hearingshall be conducted in accordance withthe provisions of §§ 102.64, 102.65, and102.66, insofar as applicable. Upon theclose of the hearing the agent conduct-ing the hearing, if directed by the Board,shall prepare and cause to be servedupon the parties a report resolving ques-tions of credibility and containing find-ings of fact and recommendations to theBoard as to the, disposition of the ehSl-lenges or objections, or both if it be aconsolidated report. The agent conduct-ing the hearing shall forward to theBoard in Washington, D. C., the noticeof hearing, motions, rulings, orders,stenographic report of the hearing, stip-ulations, exceptions, documentary evi-dence, all of which, together with theobjection to the conduct of the electionor conduct affecting the results of theelection, the report on such objections,the report on challenged ballots, andexceptions to the report on objections orto the report on challenged ballots, andthe record previously made, togetherwith his report, if any, shall constitutethe record in the case. In any case inwhich the Board has directed that a re-port be prepared and served, any partymay within 10 days from the date ofissuance of the report on challenged bal-lots or objections, or both, file with theBoard in Washington, D. C., 7 copies ofexceptions to such report: Provided,however, That in any proceeding whereina representation case has been consoli-dated with an unfair labor practice casefor purposes of hearing the provisionsof § 102.46 shall govern with respect tothe filing of excepions to the interme-diate report and recommended order.Immediately upon the filing of such ex-ceptions, the party filing the same shallserve a copy thereof upon each of theother parties and shall file a copy withthe regional director. Proof of serviceshall be made to the Board. If no ex-ceptions are filed to such report, the

3268

NLRB Exhibit A


Board, upon the expiration of the periodfor filing such exceptions, may decidethe matter forthwith upon the record ormay make other disposition of the case.The Board shall thereupon proceed pur-suant to § 102.68.

(e) In any such case in which theBoard, upon a ruling onchallenged bal-lots, has directed the regional directorto open and count such ballots and toissue a revised tally of ballots, and noobjection to such revised -tally is filed byany party within 3 days after the revilsedtally of ballots has been furnished, theregional director shall forthwith issue tothe parties certification of the results ofthe election, including certification ofrepresentatives where appropriate, withthe same force and effect as if issued bythe Board. The proceeding shall there-upon be closed.

§ 102.70 Runoff election. (a) Theregional director shall conduct a runoffelection, without further order of theBoard, when an election in which theballot provided for not less than 3 choicesi. e., at least 2 representatives and

"neither") results in no choice receivinga majority of the valid ballots cast andno 'objections are filed as provided in§ 102.69. Only one runoff shall be heldpursuant to this section.

(b) Employees who were eligible tovote in the election and who are em-ployed in an eligible category on the dateof the runoff election shall be eligible tovote in the runoff election.

(c) The ballot in the runoff electionshall provide for a selection between thetwo choices receiving the largest andsecond largest number of votes.

(d) In the event the number of votescast in an inconclusive election in whichthe ballot provided for a choice amongtwo or m o r e representatives and"neither" or "none" is equally dividedamong the several choices; or in theevent the number of ballots cast for onechoice in such election is equal to thenumber cast for another of the choicesbut less than the number cast for thethird choice, the regional director shalldeclare the first election a nullity andshall conduct another election, providingfor a selection from among the threechoices afforded in the original ballot;and he shall thereafter proceed in ac-cordance with paragraphs (a), (b), and(c) of this section. In the event two ormore choices receive the same numberof ballots and another choice receives noballots and there are no challenged bal-lots that would affect the results of theelection, and if all eligible voters havecast valid ballots, there shall be no run-off election and the petition shall be dis-missed. Only one such further electionpursuant to this paragraph may be held.

(e) Upon the conclusion of the runoffelection, the provisions of § 102.69 shallgovern, insofar as applicable.

§ 102.71 -Refusal to issue notice ofhearing; appeals to Board from action ofthe regional director. If, after a petitionhas been filed, it shall appear to theregional director that no notice of hear-ing should issue as provided in § 102.63,the regional director may dismiss thepetition and shall so advise the peti-

Wednesday, May 14, 1958 FEDERAL REGISTER

tioner in writing, accompanied by asimple statement of the procedural orother grounds. The petitioner may ob-tain a review of such action by filing arequest therefor with the Board inWashington, D. C., and filing a copy ofsuch request with the regional directorand each of the other parties within 10days of service of such notice of dismis-sal. The request shall be submitted inseven copies and shall contain a completestatement setting forth the facts andreasons upon which the request is based.Requests for an extension of time withinwhich to file the request for review shallbe filed with the Board in Washington,D. C., and proof of service shall accom-pany such request.,

§ 102.72 Filing petition with generalcounsel; investigation upon motion ofgeneral counsel; transfer of petition andproceeding from region to general coun-sel or to another region; consolidationof proceedings in same region; sever-ance; Procedure before general counselin cases over which he has assumed juris-diction. Whenever the general counseldeems it necessary in order to effectuatethe purposes of the act, or to avoid un-necessary costs or delay, he may permita petition to be filed with him in Wash-ington, D. C., or may, at any time aftera petition has been filed with a regionaldirector pursuant to § 102.60, order thatsuch petition and any proceeding thatmay have been instituted with respectthereto:

(a) Be transferred to and continuedbefore him, for the purpose of investiga-tion or consolidation with any otherproceeding which may have been insti-tuted in a regional office or with him; or

(b) Be consolidated with any otherproceeding which may have been insti-tuted in the same region; or

(c) Be transferred to and continuedin any other region, for the purpose ofinvestigation or consolidation with anyproceeding which may have been insti-tuted in or transferred to such region;or

(d) Be severed from any other pro-ceeding with which it may have beenconsolidated pursuant to this section.The provisions of §§ 102.60 to 102.71,inclusive, shall, insofar as applicable,apply to proceedings before the generalcounsel pursuant to this section, and thepowers granted to regional directors insuch provisions shall, for the purpose ofthis section, be-reserved to and exercisedby the general counsel. After the trans-fer of any petition and any proceedingwhich may have been instituted in re-spect thereto from one region to anotherpursuant to this section, the provisionsof this subpart shall, insofar as appli-cable, govern such petition and suchproceeding as if the petition had origi-nally been fied in the regioUL to whichthe transfer is made.

SUBPART D-PROCEDURE FOR REFERENDUMUNDER SECTION 9 (e) OF THE ACT

§ 102.73 Petition for referendum un-der section 9 (e) (1) of the act; who mayfile; where to file; withdrawal. A peti-tion to rescind the authority of a labororganization to make an agreement re-

quiring as a condition of employmentmembership in such labor organizationmay be filed by an employee or group ofemployees on behalf of 30 percent ormore of the employees in a bargainingunit covered by such an agreement. Thepetition shall be in writing and signed,and either shall be sworn to before anotary public, Board agent, or other per-son duly authorized by law to administeroaths and take acknowledgments orshall contain a declaration by the personsigning it, under the penalties of theCriminal Code, that its contents are trueand correct to the best of his knowledgeand belief.' Four copies of the petitionshall be filed with the regional directorwherein the bargaining unit exits or, ifthe unit exists in two or more regions.with the regional director for any of suchregions. The petition may be withdrawnonly with the approval of the regionaldirector with whom such petition wasfiled, except that if the proceeding hasbeen transferred to the Board, pursuantto § 102.67, the petition may be with-'drawn only with the consent of theBoard. Upon approval of the withdrawalof any petition the case shall be closed.

§ 102.74 Contents of petition to re-scind a2thority. (a) The name of theemployer.

(b) The address of the establishmentsinvolved.

(c) The general nature of the employ-er's business.

(d) A description of the bargainingunit involved.

(e) The name and address of the labororganization whose authorLy it is desiredto rescind.

(f) The number of employees in theunit.

(g) The date of execution and of ex-piration of any contract in effect coveringthe unit involved.

(h) The name and address of the per-son designated to accept service of docu-ments for petitioners.

(i) Any other relevant facts.

§ 102.75 Investigation of petition byregional director; consent referendum;directed referendum. Where a petitionhas been filed pursuant to § 102.73 and itappears to the regional director that thepetitioner has made an appropriateshowing, in such form as the regionaldirector may determine, that 30 percentor more of the employees within a unitcovered by an agreement between theiremployer and a labor organization re-quiring membership in such labor or-ganization desire to rescind the authorityof such labor organization to make suchan agreement, he shall proceed to con-duct a secret ballot of the employees in-volved on the question whether theydesire to rescind the authority of thelabor organization to make such anagreement with their employer: Pro-vided, however, That in any case inwhich it appears to the regiopal directorthat the proceeding raises questionswhich should be decided by the Boardbefore election, he may issue and causeto be served on the parties a notice ofhearing before a hearing officer at a

'Forms for filing rich petitions will besupplied by the regional office upon request,

3269

NLRB Exhibit A



time and place fixed therein. The re-gional director shall fix the time andplace of the election, eligibility require-ments for voting, and other arrange-ments of the balloting, but the partiesmay enter into an agreement, subject tothe approval of the regional director,fixing such arrangements. In any suchconsent agreements, provision may bemade for final determination of allquestions arising with respect to the bal-loting by the regional director or by theBoard.

§ 102.76 Hearintg; posthearing pro-cedure. The method of conducting thehearing and the procedure following thehearing, including transfer of the caseto the Board, shall be governed, insofaras applicable, by §§ 102.63 to 102.68, in-clusive..

§ 102.77 Method op conducting bal-Zoting; postballoting procedure. Themethod of conducting the ballotifig andthe postballoting procedure shall be gov-erned by the provisions of § 102.69, inso-far as applicable.

§ 102.78 Refusal to conduct refer-endum; appeal to Board. If, 'after apetition has been filed, it shall appear tothe regional director that no referendumshould be conducted, he shall dismiss thepetition. Such dismissal shall be 'inwriting and accompanied by a simplestatement of the procedural or othergrounds. The petitioner may obtain areview of such action by filing a requesttherefor with the Board in Washington,D. C., and filing a copy of such requestwith the regional director and each of theother parties within 10 days from theservice of notice of such dismissal.The request shall contain a completestatement setting forth the facts andreasons upon which the request is based.

SUBPART E-PROCEDURE TO HEAR AND DETER-MINE DISPUTES UNDER SECTION 10 (k) OFTHE ACT§ 102.79 Initiation of proceedings.

Whenever it is charged that any personhas engaged in an unfair labor practicewithin the meaning of paragraph (4)(D) of section 8 (b), the regional di-rector shall investigate such charge,giving it priority over all other cases inthe office except cases under paragraph(4) (A), (4) (B), and (4) (C) of section8 (b) and other cases under paragraph(4) (D) of section 8 (b).

§ 102.80 Notice of hearing; hearing;proceedings before the Board; briefs;determination of dispute. If it appearsto the regional director that the chargehas merit and the parties to the disputehave not submitted satisfactory evidenceto the regional director that they haveadjusted, or'have agreed upon methodsfor the voluntary adjustment of, the dis-pute out of which such unfair laborpractice shall have arisen, fii shall causeto be served on all parties to such dis-pute a notice of the filing of said chargetogether with a notice of hearing undersection 10 (k) of the act before a hearingofficer at a, time and place fixed thereinwhich shall be not less than 10 days afterservice of the notice of hearing. Thenotice of hearing shall contain a simplestatement of the issues involved in such

dispute. Hearings shall be conducted bya hearing officer, and the procedure shallconform, insofar as applicable, to theprocedure set forth in §§ 102.64 to 102.67,inclusive. Upon the close of the hearing,the Board shall proceed either forthwithupon-the record, or after oral argument,or the submission of briefs, or furtherhearing, to determine thedispute ormake- other disposition of the matter.Should any party desire to file a briefwith the Board, 7 copies thereof shall befiled with- the Board -at Washington,D. C., within 7 days after the close ofthe hearing. Immediately upon suchfiling, a copy shall be served on the otherparties. Such brief shall be legiblyprinted or otherwise legibly 'duplicated:Provided, however, That carbon copies oftypewritten matter shall not be filedand if submitted will not be accepted.Requests for extension of time in whichto file a brief under authority of this sec-tion shall be in writing and received by-the Board in Washington, D. C., 3 daysprior to the due date with copies thereofserved on each of the other parties, Noreply brief may be filed except uponspecial leave of the Board.

§ 102.81 Compliance with determina-tion; further proceedings. If, after issu-ance of the determination by the Board ,the parties submit to the regional di-rectok satisfactory evidence that theyhave' complied with the determination,the regional director shall dismiss thecharge. If no satisfactory evidence ofcompliahce is submitted, the regionaldirector- shall proceed with the chargeunder paragraph (4) (D) of -section 8(b) and section 10 of the act and theprocedure prescribed in §§ 102.9 to102.51, inclusive, shall, insofar as appli-cable, govern.

§ 102.82 Review of determination.The record of the proceeding under sec-tion 10 (k) and the determination of theBoard thereon shall become a part of therecord in such unfair labor practice pro-ceeding and shall be subject to Judicialreview, insofar as it is in issue, in pro-ceedings to eriforce or review the finalorder of the Board under section 10 (e)and (f) of the act.'

§ 102.83 Alternative procedure. If,either before or after service of the noticeof hearing, the parties submit to theregional director satisfactory- evidencethat they have adjusted the dispute, theregional director shall dismiss the chargeand shall withdraw the notice of hearingif notice has issued. If, either before orafter issuance of notice of hearing, theparties, submit to the regional directorsatisfactory evidence that they haveagreed upon methods for the voluntaryadjustment of the dispute, the regionaldirector shall defer action upon thecharge and shall withdraw the notice ofhearing if notice has issued. If it ap-pears to the regional director that thedispute has not been adjusted in accord-ance with such agreed-up6n methodsancl that an unfair labor practice withinthe meaning of section 8 (b) (4) (D) ofthe act is occurring or has occurred, hemay issue a complaint under § 102.15,and the procedure prescribed in §§ 102.9to 102.51, inclusive, shall, insofar as ap-

plicable, govern; and §§ 102.80 to 102.82,inclusive, are inapplicable.SUBPART F-PROCEDURE IN CASES UNDER SEC-

TION 10 j) AND (I) OF THE ACT

§ 102.84 Expeditious processing ofsection 10 (j) cases. (a) Whenever tem-porary relief or a restraining order pur-suant to section 10 (j) of the act hasbeen procured by the Board, the com-plaint which has been the basis for suchtemporary relief or restraining orde reshall be heard expeditiously and the caseshall be given priority by the Board in itssuccessive steps following the issuanceof the complaint (until ultimate enforce-ment or dismissal by the appropriatecircuit court of appeals) over all othercases except cases of like character andcases under section 10 (1) of the act.

(b) In the event the trial examinerhearing a complaint, concerning whichthe Board has procured temporary re-lief or a restraining order pursuant tosection 10 (j), recommends a dismissalin whole or in part of such complaint, thechief law officer shall forthwith suggestto the district court which iksued suchtemporary relief or restraining orderthe possible change in circumstancesarising out of the findings and recom-mendations of the trial examiner.

§ 102.85 Priority of cases pursuant tosection 10 (1) of the act. Whenever acharge is filed alleging the commissionof an unfair labor practice within themeaning of paragraph 4 (A), (B), or (C)of section 8 (b) of the act, the regionaloffice in which such charge is filed or towhich it is referred shall give it priorityover all other cases in the office exceptcases of like character.

§102.86 Issuance of complaintpromptly. Whenever the regional at-torney or other Board officer to whomthe matter may be referred seeksinjunc-tive relief of a district court pursuant tosection 10 (1) of the act, a complaint

* against the labor organization sought tobe enjoined, covering the same subjectmatter as such application for injunctiverelief, shall be issued promptly, normallywithin 5 days of the date upon whichsuch injunctive relief Is first sought.

§ 102.87 Expeditious Processing ofsection 10 (1) cases in successive stages.Any complaint issued pursuant to9'102.85 shall be heard expeditiously andthe case shall be given priority in itssuccessive steps following its issuance(untilultimate enforcement or ,disinissalby the appropriate circuit court of ap-peals) over all cases except cases of likecharacter.SUBPART G-SERVICE AND FILING OP PAPERS

§ 102.88 - Service of process and pa-pers; Proof of service. (a) Charges,complaints and accompanying notices ofhearing, final orders, intermediate re-ports, and subpenas of the Board, itsmember, agent, or agency, may be servedpersonally or by registered mail or bytelegraph or by leaving a copy thereof atthe principal office or place of business ofthe person required .to be served, Theverified returnby the individual so serv-ing the same, setting forth the mannerof such service, shall be proof of the

3270

NLRB Exhibit A



same, and the return post office receiptor telegraph receipt therefor when regis-tered and mailed or telegraphed as afore-said shall be proof of service of the same.

(b) Process and papers of the Board,other than those specifically named inparagraph (a) of this section, may beforwarded by certified mail. The re-turn post office receipt-therefor shall beproof of service of the same.

§ 102.89 Same; by parties; proof ofservice. Service of papers by a party onother parties shall be made by registeredmail, or by certified mail, or in any man-ner provided for the service of papers ina civil action by the law of the State inwhich the hearing is pending. Whenservice is made by registered mail, orby certified mail, the return post officereceipt shall be proof of service. Whenservice is made in any manner providedby such law, proof of service shall bemade in accordance with such law.

§ 102.90 Date of service; filing ofproof of service. (a) The date of serv-ice shall be the day when the matterserved is deposited in the United Statesmail or is delivered in person, as the casemay be. In computing the time fromsuch date, the provisions of § 102.91apply. --

(b) The person or party serving the__papers or process on other parties in con-

formance with §§ 102.88 and 102.89 shallsubmit a written statement of servicethereof to the Board stating the namesof the parties served and the date andmanner of service. Proof of service asdefined in § 102.89 shall be required bythe Board only if subsequent to the re-ceipt of the statement of service a ques-tion is raised with respect to proper serv-ice. Failure to make proof of servicedoes not affect the validity of theservice.

§ 102.91 Time; additional time afterservice by mail. (a) In computing anyperiod of time prescribed or allowed bythe rules in this part, the day of the act,event, or default after which the desig-nated period of time begins to run, is notto be included. The last day of the periodso computed is to be included, unless itis a Sunday or a legal holiday, in whichevent the period runs until the end ofthe next day, which is neither a Sundaynor a legal holiday. When the period oftime prescribed or allowed is less than 7days, intermediate Sundays and holidaysshall be excluded in the computation.For the purpose of this section a Satur-day on which the-Board's offices are notopen-for business shall be considered asa holiday, but a half holiday shall be con-sidered as other days and not as a holi-day. Whenever a party has the right oris required to do some act or take someproceedings within a prescribed periodafter service of a notice-or other paperupon him, and the notice or paper isserved upon him by mail, 3 days shall beadded to the prescribed period: Provided,however, That 3 days shall not be addedif any extension of such time may havebeen granted.

(b) When the act or any of the rulesin this part require the filing of amotion, brief, exception, or other paperin any proceeding, such document must

No. 95- 7

FEDERAL REGISTER

be received by the Board or the officer oragent designated to receive such matterbefore the close of business of the lastday of the time limit, if any, for suchfiling or extension of time that mayhave been granted.SUBPART H-CERTIFICATION AND SIGNATURE

OF DOCUMENTS

§ 102.92 Certification of papers anddocuments. The executive secretary ofthe Board or, in the event of his absenceor disability, whosoever may be desig-nated by the Board in his place and steadshall certify copies of all papers and doc-uments which are a part of any of thefiles or records of the Board as may benecessary or desirable from time to time.

§ 102.93 Signature of orders. The ex-ecutive secretary or the associate execu-tive secretary or, in the event of theirabsence or disability, whosoever may bedesignated by the Board in their placeand stead is hereby authorized to signall orders of the Board.

SUBPART I-RECORDS AND INFORMATION

§ 102.94 Files, records, etc., in exclu-sive custody of Board and not subject toinspection; formal documents and finalopinions and orders subject to inspection.(a) The formal documents described asthe record in the case or proceeding anddefined in §§ 102.45, 102.67, and 102.69are matters of official record and areavailable for inspection and examinationby persons properly and directly con-cerned, during usual business hours, atthe appropriate regional office of theBoard or in Washington, D. C., as thecase may be. True and correct copiesthereof will be certified upon submissionof such copies a reasonable time in ad-vance of need and payment of lawfullyprescribed costs: Provided, however,That if the Board, the general counsel,or the regional director with whom thedocuments are filed shall find in a par-ticular instance good cause why a matterof official recor' should be kept confi-dential, such matter shall not be avail-able for public inspection or examination.Application for such inspection, if de-sired to be made at the Board's office inWashington, D. C., shall be made to theexecutive secretary or the general coun-sel, as the case may be, and, if desiredto be made at any regional office, shallbe made to the regional director. Theexecutive secretary, the general counsel,or the regional director may, in his dis-cretion, require that the application bemade in writing and under oath and setforth the facts upon which the applicantrelies- to show that he is properly anddirectly concerned with such inspectionand examination. Should the executivesecretary, the general counsel, or the re-gional director, as the case may be, denyany such application, he shall giveprompt notice thereof, accompanied bya simple statement of procedural or othergrounds.

(b) All final opinions or orders of theBoard in the adjudication of cases (ex-cept those required for good cause to beheld confidential and not cited as prec-edents) and its rules and regulationsare available to public inspection duringregular business hours at the Board'soffices in Washington, D. C. Copies may

be obtained upon request made to anyregional office of the Board at its addressas published in the FEDERAL REGISTER,or to the director of information inWashington, D. C. Subject to the pro-visions of §§ 102.31 and 102.66, all files,documents, reports, memoranda, andrecords pertaining to the internal man-agement of the Board or to the inves-tigation or disposition of charges orpetitions during the nonpublic investiga-tive stages of proceedings and before theinstitution of formal proceedings, andall matters of evidence obtained by theBoard or any of its agents in the courseof investigation, which have not beenoffered in evidence at a hearing beforea trial examiner or hearing officer orhave not been made part of an official,record by stipulation, whether in the re-gional offices of the Board or in its prin-cipal office in the District of Columbia,are for good cause found by the Boardheld confidential and are not matters ofofficial record or available to public in-spection, unless permitted by the Board.its chairman, the general counsel, or anyregional director.

§ 102.95 Same; Board employees pro-hibited from producing files, records, etc,pursuant to subpeva ad testificandunor subpena duces tecum, prohibited frointestifying in regard thereto. No regionaldirector, field examner, trial examiner,attorney, specially designated agent, gen-eral counsel, member of the Board, orother officer or employee of the Boardshall produce or present any files, docu-ments, reports, memoranda, or recordsof the Board or testify in behalf of anyparty to any cause pending in any courtor before the Board, or any other board,commission, or other administrativeagency of the United States, or of anyState, Territory, or the District of Co-lumbia with respect to any information,facts, or other matter coming to hisknowledge in his official capacity or withrespect to the contents of any files, docu-ments, reports, memoranda, or recordsof the Board, whether in answer to a sub-pena, subpena duces tecum, or otherwise,without the written consent of the Boardor the chairman of the Board if the of-ficial or document is subject to the super-vision or control of the Board; or thegeneral counsel if the official or docu-ment is subject to the supervision orcontrol of the general counsel. When-ever any subpena ad testificandum orsubpena duces tecum, the purpose ofwhich is to adduce testimony or requirethe production of records as describedhereinabove, shall have been served uponany such persons or other officer or em-ployee of the Board, he will, unless other-wise expressly directed by the Board orthe chairman of the Board or the generalcounsel, as the case may be, move pur-suant to the applicable procedure,whether by petition to revoke, motion toquash, or otherwise, to have such sub-pena invalidated on the ground that theevidence sought is privileged against dis-closure by this rule.

SUBPART J-PRACTICE BEFORE THE BOARD OFFORMER EMPLOYEES

§ 102.96 Prohibition of practice beforeBoard of its former regional employees incases pending in region during employ-

31271

NLRB Exhibit A


ment. No person who has been an em- TITLE 21-FOOD AND DRUGSployee of the Board and attached to anyof its regional offices shall engage in Chapter I-Food and Drug Adminis-practice before the Board or its agents tration, Department of Health, Edu-in any respect or in any capacity in con- cation, and Welfarenection with any case or pyoceedingwhich was pending in any regional office Sobchapter B-Food and Food Produdsto which he was attached during the timeof his employment with the Board. PART 120-TOLEANCES AND EXEMPTIONS

FROM TOLERANCES FOR PESTICIDE CHEM-§ 102.97 Same; application to former ICALS IN Ol ON RAW AGRICULTURAL COM-

employees of Washington staff. No per- =ODITIESson who has been an employee of theBoard and attached to the Washington TOLERANCES FOR RESIDUES OF S- (P-CHLORO-

staff shall engage in practice before the PHENYLTHIO) METHYL oO-D)ETRYL PHOS-

Board or its agents in any respect or in PHORODITHIOATEany capacity in connection with any case A petition was filed with the Food andor proceeding pending before the Board Drug Administration by Stauffer Chemi-or any regional offices during the time cal Company, Richmond, California, re-of his employment with the Board. questing the establishment of tolerances

SUBPART K-CONSTRUCTION OF RULES for residues of S-(p-chiorophenylthio)methyl O-O-diethyl phosphorodithioate

§ 102.98 Rules to be liberally con- in or on various raw agricultural com-strued. The rules and regulations in this modities. Subsequently, the petitionerpart shall be liberally construed to ef- withdrew his requestwith respect to cer-fectuate the purposes and provisions of - tain commodities.the act. The Secretary of Agriculture has cer-

SUBPART L-ENFORCEMENT OF RIGHTS, PRIVI- tified that his pesticide chemical is use-LEGES, AND IMMUNITIES GRANTED OR ful for the purposes for which tolerancesGUARANTEED UNDER SECTION 222 if), are being established.COMMUNICATIONS ACT OF 1934, AS After consideration of the data sub-AMENDED, TO EMPLOYEES OF MERGED TELE- mitted in the modified petition and otherGRAPH CARRIERS relevant material which show that the

§ 102.99 Enforcement. -All matters tolerances established in this order willrelating to the enforcement of rights, protect the public health, and by virtueprivileges, or immunities granted or of the authority vested in the Secretaryguaranteed under section 222 Cf) of the of Health, Education, and Welfare by theCommunications Act of 1934, as Federal Food, Drug, and Cosmetic Actamended, shall be governed by the pro- (sec. 408 (d) (2), 68 Stat. 512; 21 U. S. C.visions of Subparts A, B, G, H, I, and K 346a (d) (2)) and delegated to the Coin-of this part, insofar as applicable, except missioner of Food and Drugs by thethat reference in Subpart B to "unfair Se6retary (21 CFR 120.7 (g)), the reg-labor practices" or "unfair labor prac- ulations for tolerances for pesticidetices affecting commerce" shall for the chemicals in or on raw agricultural con-purposes of this article mean the denial modities (21 CFR 120.156 (22 F. R. 7502) )of any rights, p-ivileges, or immunities are amended by changing § 120.156 togranted or guaranteed under section 222 read as follows:(f) of the Communications Act of 1934, § 120.156 Tolerances for residues ofas amended. S-(v-chlorophenvlthio) methyl 0.0-di-

SUBPART M-AMENDMENTS

§ 102.100 Amendment or rescission ofrules. Any rule or regulation may beamended or rescinded by the Board atany time.

§ 102.101 Pet i ions fbr issuance,amendment, or repeal of rules. Any in-terested person may petition the Board,in writing, for the issuance, amendment,or repeal of a rule or regulation. Anoriginal and five copies-of such petitionshall be filed with the Board in Wash-ington, D. C., and shall state the rule orregulation pr op o s e d to be issued,amended, or repealed, together with astatement of grounds in support of suchpetition.

§ 102.102 Action on petition. Uponthe filing of such petition, the Board shallconsider the same and may thereuponeither grant or deny the petition in wholeor in part, conduct an appropriate hear-ing thereon, or make other disposition ofthe petition. Should the petition be de-nied in -whole or in part, prompt noticeshall be given of the denial, accompaniedby a simple statement of the groundsunless the denial is self-explanatory.[IF. R. Doc. 58-3649; Filed, May 13, 1958;

8:54 a. m.]

ethyl phosphorodithioate. Tolerancesfor residues of S-(p-chlorophenylthio)methyl 0,0-diethyl phosphorodithioatein or on raw agricultural products areestablished as follows:

(a) 5 parts per million in or on sugarbeets (roots), sugar beets (tops).

(b) 2 parts per million in or on al-mond hulls, grapefruit, lemons, limes,oranges, tangelos, tangerines.

(c) 0.8 part per million in or on apples,apricots, beanssnap (succulent form);beans, lima (succulent form) ; beets, gar-den (roots) ; beets, garden (tops) ; canta-loups, cherries, crabapples, eggplants,grapes, nectarines, olives, peaches, pears,peas (succulent form), peppers, pimen-tos, plums (fresh prunes), quinces, soy-beans (succulent form), spinach, straw-berries, tomatoes, watermelons.

Any person who will be adversely af-fected by the foregoing order may, at anytime prior to the thirtieth day from theeffective date thereof, file with the Hear-ing Clerk, Department of Health, Educa-tion, and Welfare, Room 5440, 330 Inde-pendence Avenue- SW., Washington 25,D. C., written objections thereto. Objec-tions shall show wherein the person fil-ing will be adversely affected by thisorder, specify with particularity the pro-

I

3272

visions of the order deemed objectionableand reasonable grounds for the objec-tions, and request a public hearing uponthe objections. Objections may be ac-companied by a memorandum or briefin support thereof. All documents shallbe filed in quintuplicate.

Effective date. This order shall be ef-fective upon puliication in the FEDERALREGISTER.(Sec. 408 (d) (2), 68 Stat. 512; 21 U. S. 0.346a (d) (2))

Dated: May 8, 1958.[SEAL] GEO. P. LARRICK,

Commissioner of Food and Drugs.

[F. R. Doe. 58-3656; Filed, May 13, 1958;8:54 a. m.]

TITLE 32A-NATIONAL DEFENSE,APPENDIX

Chapter VI-Business and DefenseServices Administration, Depart-ment of Commerce

[BDSA Peg. 2 (Formerly NPA Reg. 2); Direc-tion 7, Amendment 1, of May 9, 1958]BDSA REG. 2-BASIC RULES OF THE

PRIORITIES SYSTEM/

REG. 2, DIR. 7, AMDT. 1-LznITATION ONUSE OF RATINGS To OBTAIN NICKEL-ELIMINATION OF NOTIFICATION REQUIRE-MIENT AND CERTAIN USE LIMITATIONS

This amendment is found necessaryand appropriate to promote the nationaldefense and is issued pursuant to theDefense Production Act of 1950, asamended. In the formulation of thisamendment, there has been consultationwith industry representatives, includingtrade assoqiation representatives, andconsideration has been given to theirrecommendations:

-Thisamendment affects direction 7 toBDSA Reg. 2 by amending paragraph(b) of section 3 of said direction. Thenotification requirement and use limita-tions contained in said paragraph areeliminated.

Paragraph (b) of sedtion 3 of direction7 to BDSA Reg. . is amended to read asfollows:

(b) If at any time any person who.has generated scrap in the course of pro-

*ducing alloys containing nickel to fillmandatory acceptance orders has onhand such scrap containixig a quantityof usable nickel which exceeds the quan-tity of such nickel needed by him to fillmandatory acceptance orders receivedby him, he may use it himself or disposeof it unless otherwise ordered or directedby BDSA.(Sec. 704, 64 Stat. 816, as amended; 50 U. S. C.

App. 2154)This amendment shall take effect May

9, 1958.BuSINESS AND DEFENSE SERV-

ICES ADMINISTRATION,H. B. McCoy,

Administrator.[F. R. Dc. 58-3614; Filed, May 13, 1958;

8:60 a. m.]

RUL-ES AND REGULATIONS

NLRB Exhibit A


DEFENDANT NATIONAL LABOR RELATIONS BOARD’S … · 2015-03-30 · Case No. 1:15-CV-00026 RP . ......

Documents

Transcript of DEFENDANT NATIONAL LABOR RELATIONS BOARD’S … · 2015-03-30 · Case No. 1:15-CV-00026 RP . ......