ber at the conclusion of the hearing. Ordinarily, they will be simultaneous briefs, exchanged within 30 days after receipt of transcript. §703.124 Transcript of proceedings. Testimony and argument at hearings shall be reported verbatim, unless the Board otherwise orders. Transcripts or copies of the proceedings shall be supplied to the parties on their request at such rates as may be fixed. §703.125 Withdrawal of exhibits. After final decision, the Board may, upon request and after notice to the other parties, in its discretion, permit the withdrawal of original exhibits, or any part thereof, by the party entitled thereto. The substitution of true copies of exhibits or any part thereof may be required by the Board in its discretion as a condition of granting permission for such withdrawal. REPRESENTATION $703.126 The appellant. An individual appellant may appear before the Board in person, a corporation by an officer thereof, a partnership or joint venture by a member thereof, or any of these by an attorney at law duly licensed in any state, commonwealth, territory, or in the District of Columbia. An attorney representing an appellant shall file a written notice of appearance with the Board. 703.127 The respondent. Government counsel may, in accordance with their authority, represent the interest of the Government before the Board. They shall file notices of appearance with the Board, and notice thereof will be given appellant or its attorney in the form specified by the Board from time to time. DECISIONS § 703.128 Written decisions. Decisions of the Board shall be made in writing and served simultaneously to all parties. The rules of the Board and all final orders and decisions shall be open for public inspection at the of fices of the Board, and the DOE public document room in Washington, D.C. Decisions of the Board will be made solely upon the record, as described in § 703.113. MOTION FOR RECONSIDERATION § 703.129 Motion for reconsideration. A motion for reconsideration, if filed by a party, shall set forth specifically the ground or grounds relied upon to sustain the motion, and shall be filed within 30 days from the date of the receipt of a copy of the decision of the Board by the party filing the motion. DISMISSALS § 703.130 Dismissal without prejudice. In certain cases, appeals docketed before the Board are required to be placed in a suspense status and the Board is unable to proceed with disposition thereof for reasons not within the control of the Board. In any such case where the suspension has continued, or it appears that it will continue for an inordinate length of time, the Board may, in its discretion, dismiss such appeal from its docket without prejudice to its restoration when the cause of suspension has been removed. Unless either party or the Board acts within three years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed with prejudice. § 703.131 Dismissal for failure to prosecute. Whenever a record discloses the failure of either party to file documents required by these rules, respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise indicates an intention not to continue the prosecution or defense of an appeal, the Board may issue an order requiring the offending party to show cause why the appeal should not be either dismissed or granted, as appropriate. If the offending party shall fail to show such cause, the Board may take such action as it deems reasonable and proper under the circumstances. EX PARTE COMMUNICATIONS §703.132 Ex Parte conduct. No member of the Board, or of the Board's staff shall entertain, nor shall any person directly or indirectly involved in an appeal submit to the Board or the Board's staff, off the record, any evidence, explanation, analysis, or advice, whether written or oral, regarding any matter at issue in an appeal. This provision does not apply to consultation among Board members nor to requests for information concerning the Board's administrative functions or procedures. SANCTIONS §703.133 Sanctions. If any party fails or refuses to obey an order issued by the Board, the Board may make such order in regard to the failure as it considers necessary to the just and expeditious conduct of the appeal. SECURITY 703.134 Security requirements. All proceedings shall be so conducted and the Board shall take such steps as necessary to insure compliance with the security regulations and requirements of the Agency. Subpart B-Rules of the Contract Adjustment Board (Reserved) APPENDIX A-ORGANIZATION AND FUNCTIONS, DOE MANUAL, CHAPTER 0114, OFFICE OF THE BOARD OF CONTRACT APPEALS 0114-01 SUPERVISION Under the supervision of a Chairman, who is appointed by and reports to the Administrator. 0114-02 FUNCTIONS AND AUTHORITY Acts for the Administrator to provide for the orderly, impartial, fair, and expeditious handling of contract appeals, applications for extraordinary relief under Public Law 85804, and such other matters as may be referred to the Board by the Administrator. Specifically: 021 The Board, both when acting as the Board of Contract Appeals and as the Contract Adjustment Board, acts for and exercises the full authority of the Administrator in hearing, considering, and deciding all proceedings within the scope of this chapter. 022 The Board shall have all powers necessary for the performance of its duties, including but not limited to the authority to conduct hearings, call witnesses, dismiss appeals with or without prejudice, order the production of documents and other evidence, administer oaths and affirmations, issue subpoenas, order depositions to be taken, take official notice of facts within general knowledge, and decide all questions of fact and law. Decisions rendered by the Board are final decisions of the Administrator. All such decisions will be by a majority of the Board. Decisions on questions of law are subject to 68 Stat. 81 (1954). 41 U.S.C. 321 and 322 (1970 ed.) relating to finality. 023 Members of the Board are designated as Administrative Judges and the Chairman is designated Chief Administrative Judge. 024 Board members may perform such other quasi-judicial functions as are assigned by the Administrator. 025 The Board shall establish and issue rules of procedure not inconsistent with this chapter. 026 When acting as the Board of Contract Appeals, the Board shall: a. Consider and decide appeals from decisions of DOE contracting officers in disputes arising under: (1) Any DOE prime contract containing a dispute provision requiring an DOE contracting officer's decision and providing for an appeal therefrom to the Administrator, and (2) Any subcontract entered into by a costtype prime contractor in which such a dispute provision has been included in accordance with DOE Procurement Regulations. b. Assess liquidated damages pursuant to section 104(c) of the Contract Work Hours and Safety Standards Act (40 U.S.C. sections 327-332). c. Conduct hearings and decide proceedings for debarment of contractors. 027 When acting as the Contract Adjustment Board, the Board shall: a. Exercise the authority of the Administrator with respect to contractual fairness cases and such other matters as may be referred to the Board by the Administrator or his designee in accordance with the provisions of 41 CFR 9-17, "Extraordinary Contractual Actions to Facilitate the National Defense." When so designated, and functioning as the Contract Adjustment Board, it shall proceed in the same general manner as when it presides as the Board of Contract Appeals. However, decisions of the Contract Adjustment Board will not be cited as precedent on other matters brought to the Contract Adjustment Board. b. Hear and decide a case as the Contract Adjustment Board when such a case is otherwise before it as the Board of Contract Ap peals under 10 CFR part 703 and the case appears to be one of contractual fairness. 0114-03 BOARD MEMBERSHIP The Board shall consist of three members appointed by Administrator, who shall be qualified attorneys admitted to practice before the highest court of any State or the District of Columbia. The Administrator shall designate one of the members as Chairman. The Chairman shall designate a member of the Board to be Vice Chairman. In the absence of the Chairman, the Vice Chairman shall act for the Chairman. A single member may be assigned by the Chairman to conduct hearings and to develop the record including deciding any motion which is not dispositive of the appeal. 0114-04 RESPONSIBILITIES OF THE CHAIRMAN 041 The Chairman shall preside over the Board's activities and shall be responsible for: a. The administration of the Board; b. Delegation of functions and responsibilities to Board members; c. The receipt and custody of all papers and material relating to contract appeals; and d. The submission of a report, not less often than annually, to the Administrator on the status of the Board's activities. AUTHORITY: Sec. 161, 68 Stat. 948, as amended; 42 U.S.C. 2201. SOURCE: 41 FR 56776, Dec. 30, 1976, unless otherwise noted. GENERAL § 706.1 Purpose. The purpose of this part is to set forth Department of Energy, hereinafter "DOE," security policies and practices in the area of labor-management relations. §706.2 Basis and scope. The specific policies contained in this part are worked out within the framework of DOE's general objectives for labor-management relations in the DOE program, namely: (a) Wholehearted acceptance by contractors and by labor and its representatives of the moral responsibility inherent in participation in the DOE program; (b) Development of procedures to assure (1) that all participants in the program are loyal to the United States including those whose participation involves the exercise of negotiating and disciplinary authority over bargaining units, and (2) that determination of unit, jurisdiction, and similar questions will not breach security; (c) Continuity of production at vital DOE installations; (d) Consistent with DOE's responsibility under the law, the least possible governmental interference with the efficient management expected from DOE contractors; (e) Minimum interference with the traditional rights and privileges of American labor. SECURITY POLICIES AND PROCEDURES IN NATIONAL LABOR RELATIONS BOARD PROCEEDINGS §706.10 Policy. It is policy of DOE that NLRB cases falling within the scope of the Labor Management Relations Act at the various DOE installations should be conducted in normal fashion whereever possible, on the basis of open hearings, unclassified records and published decisions. This policy does not preclude adoption of special arrangements which may be required for reasons of program security at any stage of the proceedings in particular areas. § 706.11 Consent elections. In accordance with the recommendation of the President's Commission on Labor Relations in the Atomic Energy Installations, it is the policy of DOE to encourage every effort by management and labor at DOE installations to determine bargaining units and representatives by agreement and consent elections in preference to contested proceedings before the National Labor Relations Board. § 706.12 Administrative Law Judges. By agreement with the National Labor Relations Board, a panel of cleared NLRB administrative law judges is maintained to facilitate resolution of questions as to the materiality of classified information in NLRB hearings and to facilitate preparation of an unclassified record. The assignment of individual administrative law judges to DOE cases remains a matter within the discretion of the National Labor Relations Board. §706.13 Clearance of counsel. It is recognized that clearance of counsel for the parties is sometimes desirable for proper preparation of a case even though the record is to be unclassified. Clearance of counsel makes possible their participation in any closed discussions needed preparatory to making an unclassified record. Each party is responsible for requesting clearance of its counsel well in advance so that clearance requirements will not delay the proceeding. The clearance of temporary special counsel will be terminated on completion of the proceeding. § 706.14 DOE's role in proceedings. If controversies within the scope of the Labor Management Relations Act arise which cannot be adjusted by mutual agreement, and contested proceedings before NLRB result, each party to such proceedings will present his own position and the evidence in support thereof with due regard for existing security rules. DOE will be continuously informed of the progress of such proceedings and will act as may appear de sirable (a) to assure the protection of classified information; (b) to assure that material and relevant information is not withheld from the record on grounds of security if such information can be supplied in unclassified form; and (c) to assist in determining appropriate action where a decision may turn on data which can be expressed only in classified form. LOYALTY OF PARTICIPANTS §706.20 Policy. Loyalty to the United States is a paramount factor applicable to all participants in DOE program including those whose participation (although not requiring access to restricted data) involves the exercise of administrative, negotiating and disciplinary authority over bargaining units composed of employees engaged on classified work. Individuals involved in questions of loyalty will be given full opportunity to explore the questions with DOE. DOE will take such further steps as may be appropriate in the circumstances. CONTRACT NEGOTIATION AND § 706.30 Clearance of certain local union representatives. It is recognized that security clearance of certain union representatives may be necessary to assure opportunity for effective representation of employees in collective bargaining relationships with DOE contractors. Accordingly, DOE managers may authorize investigation for "Q" clearance of union officials whose functions as representatives of employees may reasonably be expected to require access to Restricted Data under NLRB and other procedures according to applicable law (LMRA, 1947); to effectively perform their representation functions in the resolution of grievances and in other collective bargaining relationships with contractors; to effectuate the recommendation of the President's Commission on Labor Relations in the Atomic Energy Installations in respect to integration of the union into the plant organization "as to two-way channel of communication and a medium of understanding between management and workers". (a) In the pre-contract stage of union-management relations, the requirements of the Labor Management Relations Act normally will be the applicable criteria for determining which bargaining representatives, if any, will need access to classified material in the exercise of their functions as employee representatives. (b) After a bargaining relationship has been established between the contractor and the representatives of its employees the nature of this relationship and the procedures followed in it normally will be the controlling criteria for determination of the access to be granted to particular persons in carrying out their functions as employee representatives. For example, many contract grievance procedures designate by title certain union and management officials who are to have definite roles in the resolution of grievances under the procedure. Investigation for "Q" clearance will normally be in order for such officials, both company and union, employee, and non-employee. In addition, persons not so designated may be investigated for clearance where the company and the union advise DOE manager that their established relationships contemplate access for such persons. §706.31 Clearance of conciliators and 707.10 Drug testing for reasonable suspicion of illegal drug use.. 707.11 Drugs for which testing is performed. 707.12 Specimen collection, handling, and laboratory analysis for drug testing. 707.13 Medical review of results of tests for illegal drug use. 707.14 Action pursuant to a determination of illegal drug use. 707.15 Collective bargaining. 707.16 Records. 707.17 Permissible actions in the event of contractor noncompliance. AUTHORITY: 41 U.S.C. 701 et seq.; 42 U.S.C. 2012, 2013, 2051, 2061, 2165, 2201b, 2201i, and 2201p; 42 U.S.C. 5814 and 5815; 42 U.S.C. 7151, 7251, 7254, and 7256. SOURCE: 57 FR 32656, July 22, 1992, unless otherwise noted. Subpart A-General Provisions § 707.1 Purpose. The Department of Energy (DOE) promulgates this part in order to protect the environment, maintain public health and safety, and safeguard the |