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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.
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.
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.
$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.
$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.
8703.130 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.
$703.127 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.
8703.131 Dismissal for failure to pros
ecute. 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.
$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
EX PARTE COMMUNICATIONS 8703.132 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 8703.133 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.
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.
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 assi 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 ap peal 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
Subpart B-Rules of the Contract
Adjustment Board (Reserved) APPENDIX A-ORGANIZATION AND FUNC
TIONS, DOE MANUAL, CHAPTER 0114,
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 85 804, 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
AUTHORITY: Sec. 161, 68 Stat. 948, as amended; 42 U.S.C. 2201.
SOURCE: 41 FR 56776, Dec. 30, 1976, unless otherwise noted.
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.
peals under 10 CFR part 703 and the case ap pears 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. 011404 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 responsibile ities 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.
8706.2 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.
PART 706-SECURITY POLICIES AND
PRACTICES RELATING TO LABORMANAGEMENT RELATIONS
Sec. 706.1 Purpose. 706.2 Basis and scope.
SECURITY POLICIES AND PROCEDURES IN NA
TIONAL LABOR RELATIONS BOARD PROCEEDINGS 706.10 Policy. 706.11 Consent elections. 706.12 Administrative Law Judges. 706.13 Clearance of counsel. 706.14 DOE's role in proceedings.
SECURITY POLICIES AND PROCEDURES IN
NATIONAL LABOR RELATIONS BOARD
LOYALTY OF PARTICIPANTS 706.20 Policy. CONTRACT NEGOTIATION AND ADMINISTRATION 706.30 Clearance of certain local union rep
resentatives. 706.31 Clearance of conciliators and arbitra
tors. 706.32 Security indoctrination of non-em
ployee representatives. 706.40 Final responsibility of DOE in secu
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 sirable (a) to assure the protection of program security at any stage of the classified information; (b) to assure proceedings in particular areas.
that material and relevant information
is not withheld from the record on 8706.11 Consent elections.
grounds of security if such information In accordance with the recommenda can be supplied in unclassified form; tion of the President's Commission on and (c) to assist in determining approLabor Relations in the Atomic Energy priate action where a decision may Installations, it is the policy of DOE to turn on data which can be expressed encourage every effort by management only in classified form. and labor at DOE installations to determine bargaining units and rep
LOYALTY OF PARTICIPANTS resentatives by agreement and consent
$ 706.20 Policy. elections in preference to contested proceedings before the National Labor
Loyalty to the United States is a Relations Board.
paramount factor applicable to all par
ticipants in DOE program including 8706.12 Administrative Law Judges. those whose participation (although
By agreement with the National not requiring access to restricted data) Labor Relations Board, a panel of
involves the exercise of administrative, cleared NLRB administrative law
negotiating and disciplinary authority judges is maintained to facilitate reso
over bargaining units composed of emlution of questions as to the material
ployees engaged on classified work. Inity of classified information in NLRB
dividuals involved in questions of loyhearings and to facilitate preparation
alty will be given full opportunity to of an unclassified record. The assign
explore the questions with DOE. DOE ment of individual administrative law
will take such further steps as may be judges to DOE cases remains a matter
appropriate in the circumstances. within the discretion of the National
CONTRACT NEGOTIATION AND Labor Relations Board.
ADMINISTRATION $ 706.13 Clearance of counsel.
8706.30 Clearance of certain local It is recognized that clearance of union representatives. counsel for the parties is sometimes de
It is recognized that security clearsirable for proper preparation of a case
ance of certain union representatives even though the record is to be unclas
may be necessary to assure opporsified. Clearance of counsel makes pos
tunity for effective representation of sible their participation in any closed
employees in collective bargaining rediscussions needed preparatory to mak
lationships with DOE contractors. Acing an unclassified record. Each party
cordingly, DOE managers may authoris responsible for requesting clearance ize investigation for "Q" clearance of of its counsel well in advance so that union officials whose functions as repclearance requirements will not delay
resentatives of employees may reasonthe proceeding. The clearance of tem
ably be expected to require access to porary special counsel will be termi- Restricted Data under NLRB and other nated on completion of the proceeding. procedures according to applicable law
(LMRA, 1947); to effectively perform 8 706.14 DOE's role in proceedings.
their representation functions in the If controversies within the scope of resolution of grievances and in other the Labor Management Relations Act collective bargaining relationships arise which cannot be adjusted by mu with contractors; to effectuate the rectual agreement, and contested proceed- ommendation of the President's Comings before NLRB result, each party to mission on Labor Relations in the such proceedings will present his own Atomic Energy Installations in respect position and the evidence in support to integration of the union into the thereof with due regard for existing se- plant organization “as to two-way curity rules. DOE will be continuously channel of communication and a meinformed of the progress of such pro dium of understanding between manceedings and will act as may appear de- agement and workers”.
(a) In the pre-contract stage of ing between management and labor, inunion-management relations, the re- sofar as DOE security regulations afquirements of the Labor Management fect the collective bargaining process, Relations Act normally will be the ap- the security policies and regulations plicable criteria for determining which will be made known to both parties. To bargaining representatives, if any, will the fullest extent feasible DOE will need access to classified material in consult with representatives of manthe exercise of their functions as em agement and labor in formulating secuployee representatives.
rity rules and regulations that affect (b) After a bargaining relationship the collective bargaining process. has been established between the contractor and the representatives of its PART 707-WORKPLACE SUBemployees the nature of this relation- STANCE ABUSE PROGRAMS AT ship and the procedures followed in it.
DOE SITES normally will be the controlling criteria for determination of the access to
Subpart A-General Provisions be granted to particular persons in carrying out their functions as employee
Sec. representatives. For example, many
707.2 Scope. contract grievance procedures des
707.3 Policy. ignate by title certain union and man
707.4 Definitions. agement officials who are to have definite roles in the resolution of griev
Subpart B-Procedures ances under the procedure. Investigation for "Q" clearance will normally be
707.5 Submission, approval, and implemen
tation of a baseline workplace substance in order for such officials, both com
abuse program. pany and union, employee, and non-em- 707.6 Employee assistance, education, and ployee. In addition, persons not so des training. ignated may be investigated for clear 707.7 Random drug testing requirements ance where the company and the union and identification of testing designated advise DOE manager that their estab
positions. lished relationships contemplate access
707.8 Applicant drug testing.
707.9 Drug testing as a result of an occurfor such persons.
707.10 Drug testing for reasonable suspicion $706.31 Clearance of conciliators and
of illegal drug use.. arbitrators.
707.11 Drugs for which testing is performed. Conciliators and arbitrators who are 707.12 Specimen collection, handling, and regularly assigned to DOE cases may
laboratory analysis for drug testing. be processed for "Q" clearance at the
707.13 Medical review of results of tests for discretion of the local DOE manager,
illegal drug use.
707.14 Action pursuant to a determination either on the manager's initiative or at
of illegal drug use. the request of a contractor.
707.15 Collective bargaining.
707.16 Records. 8706.32 Security indoctrination of 707.17 Permissible actions in the event of non-employee representatives.
contractor noncompliance. All collective bargaining representa AUTHORITY: 41 U.S.C. 701 et seq.; 42 U.S.C. tives, company and union, who are to 2012, 2013, 2051, 2061, 2165, 22016, 22011, and have access to Restricted Data, will be 2201p; 42 U.S.C. 5814 and 5815; 42 U.S.C. 7151, given appropriate security indoctrina
7251, 7254, and 7256. tion.
SOURCE: 57 FR 32656, July 22, 1992, unless
otherwise noted. $706.40 Final responsibility of DOE in security matters.
Subpart A-General Provisions On all matters of security at all Government-owned, privately operated
8707.1 Purpose. DOE installations, DOE retains abso- The Department of Energy (DOE) lute and final authority, and neither promulgates this part in order to prothe security rules nor their administra- tect the environment, maintain public tion are matters for collective bargain health and safety, and safeguard the