Page images

put the witness on oath and shall personally record the testimony of the witness.

(d) If during the taking of a deposition there is bad faith in the conduct of the examination, annoyance, embarrassment, oppression of a deponent or party or improper questions propounded, a party or deponent may request suspension of the deposition. The deposition will then be adjourned. However, the objecting party or deponent must immediately move the hearing examiner for a ruling on the suspension. The hearing examiner may then limit the scope and/ or manner of the taking of the deposition.

(e) The officer shall certify the deposition and promptly file it with the hearing clerk. Documents or true copies of documents and other items produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and annexed to the deposition.

(f) The party taking the deposition shall give prompt notice of its filing to all other parties. § 14.23 Use of depositions at hearing.

(a) Any part or all of a deposition, so far as admissible under $ 14.31 applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof as follows:

(1) Any deposition may be used for contradiction or impeachment of the deponent as a witness.

(2) The deposition of a party, or of an agent designated to testify on behalf of a party, may be used by an adverse party for any purpose.

(3) The deposition of any witness may be used if the party offering the deposition has been unable to procure his attendance or if he is unable to testify by reason of age; illness; infirmity; imprisonment; death, his residence outside the State or if he is out of the country, unless his absence was procured by the party offering his deposition.

(b) If only part of a deposition is offered in evidence, the remainder becomes subject to introduction by any party.

(c) Objection may be made at the hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion

of the evidence if the witness were then present and testifying. § 14.24 Interrogatories to parties.

(a) Any party may serve upon any other party written interrogatories after the notice of hearing has been filed. If the party served is a corporation, partnership, association, or governmental agency, an agent shall furnish such information as is available to the party.

(b) Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney or other representative making them. Answers and objections shall be made within 30 days after the service of the interrogatories. The party submitting the interrogatories may move for an order under section 14.26 with respect to any objection to or other failure to answer an interrogatory.

(c) Interrogatories shall relate to any matter not privileged which is relevant to the subject matter of the hearing. § 14.25 Production of documents and

things and entry upon land for in

spection and other purposes. (a) After the notice of hearing has been filed, any party may serve on any other party a request to produce and/or permit the party, or someone acting on his behalf, to inspect and copy any designated documents, phonorecords, and other data compilations from which information can be obtained and which are in the possession, custody or control of the party upon whom the request is served. If necessary, translation of data compilations shall be done by the party furnishing the information.

(b) After the notice of hearing has been filed, any party may serve on any other party a request to permit entry upon designated property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying or photographing, testing, or sampling the property or any designated object.

(c) Each request shall set forth with reasonable particularity the items to be inspected and shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

(d) The party upon whom the re- ceedings, directed to the hearing exquest is served shall respond within 15 aminer or the Secretary, shall be deemed days after the service of the request. ex parte communications and are not to The response shall state, with respect to be considered part of any record or the each item, that inspection and related basis for any official decision by the hearactivities will be permitted as requested, ing examiner or Secretary, unless the unless there are objections in which communication is made by motion purcase the reasons for each objection shall suant to these rules. Any such communibe stated. The party submitting the re- cation in writing received by the hearing quest may move for an order under examiner or Secretary shall be made § 14.26 with respect to any objection public by placing it in the correspondence to or other failure to respond.

file of the docket which is available for

public inspection. If the ex parte com§ 14.26 Sanctions.

munication is received orally, a memo(a) A party, upon reasonable notice

randum setting forth the substance of to other parties and all persons affected the conversation shall be made and filed thereby, may move for an order as

in the correspondence section of the follows:

docket. In either case, notice of such (1) If a deponent fails to answer a communication will be given to the question propounded or submitted un- parties. der § 14.22(c), or a corporation or other (b) The hearing examiner shall not entity fails to make a designation under

consult any person, or party, on any fact § 14.22(b) (3), or a party fails to answer in issue unless upon notice and opporan interrogratory submitted under

tunity for all parties to participate, or § 14.24, or if a party, under $ 14.25, fails

be responsible to or subject to the to respond that inspection will be per- supervision or direction of an employee mitted or fails to permit inspection, the or agent engaged in the performance of discovering party may move for an order investigation or prosecuting functions compelling an answer, a designation, or related to the case. inspection.

(c) No employee or agent of the Fed(2) An evasive or incomplete answer is eral Government engaged in the investo be treated as a failure to answer.

tigation and prosecution of this case (b) If a party or an agent designated shall participate or advise in the renderto testify fails to obey an order to permit ing of the recommended or final decision, discovery, the hearing examiner may except as witness or counsel in the make such orders as are just, including: proceeding. (1) That the matters regarding which

PREHEARING the order was made or any other designated facts shall be established in ac- § 14.28 Prehearing conferences. cordance with the claim of the party ob

(a) Within 15 days after the Answer taining the order;

has been filed the hearing examiner will (2) Refusing to allow the disobedient party to support or oppose designated

establish a prehearing conference date claims or defenses, or prohibiting him

for all parties including persons or orgafrom introducing designated matters in

nizations whose petition requesting party evidence.

status has not been ruled upon. Written (c) If a party or an agent designated notice of the prehearing conference to testify fails after proper service (1) shall be sent by the hearing examiner. to appear for his deposition, (2) to serve (b) At the prehearing conference the answers of objections to interrogatories following matters, among others shall be submitted under $ 14.24, or (3) to serve

considered: (1) Simplification and dea written response to a request for in

lineation of the issues to be heard; (2) spection submitted under $ 14.25, the

stipulations; (3) limitation of number of hearing examiner on motion may make such orders as are just, including those

witnesses; and exchange of witness lists; authorized under subparagraphs (1) and

(4) procedure applicable to the proceed(2) of paragraph (b) of this section.

ing; (5) offers of settlement; and (6)

scheduling of the dates for exchange of § 14.27 Ex parte communications.

exhibits. Additional prehearing confer(a) Written or oral communications ences may be scheduled on the motion involving any substantive or procedural of the hearing examiner or on the motion issue in a matter subject to these pro- Oc any party to the hearing.


shall be available for cross-examination, $ 14.29 Appearances.

and, at the discretion of the hearing ex

aminer, may be cross-examined without The parties may appear in person, by regard to the scope of direct examinacounsel, or other representatives. In the tion as to any matter which is material event that a party appears at the hear- to the proceeding. ing and no party appears for the opposing side, the party who is present shall

§ 14.34 Objections. have an election to present his evidence Objections to evidence shall be timely, in whole or such portion thereof suf- and the party making them shall briefly ficient to make a prima facie case be- state the ground relied upon. fore the hearing examiner. Failure to

§ 14.35 Exceptions. appear at a hearing shall not be deemed to be a waiver of the right to be served Exceptions to rulings of the hearing with a copy of the hearing examiner's examiner are unnecessary. It is suffiproposed decision and to file exceptions

cient that a party, at the time the ruling to it.

of the hearing examiner is sought, makes

known the action which he desires the § 14.30 Purpose.

hearing examiner to take, or his objec(a) The hearing is directed primarily tion to an action taken, and his ground to receiving factual evidence and ex- therefor. pert opinion testimony related to the

§ 14.36 Offer of proof. issues in the proceeding. A hearing will be held in order to determine whether

An offer of proof made in connection Respondent has failed to comply with

with an objection taken to any ruling of one or more applicable requirements of the hearing examiner excluding profExecutive Order 11246, as amended, and

fered oral testimony shall consist of a rules, regulations, and orders thereunder.

statement of the substance of the eviHowever, this shall not prevent the par

dence which counsel contends would be ties from entering into a stipulation of

adduced by such testimony. If the exthe facts.

cluded evidence consists of evidence in (b) If all facts are stipulated, the

written form or consists of reference to proceedings shall go to conclusion in ac

documents, a copy of such evidence shall cordance with $ $ 14.38 to 14.44.

be marked for identification and shall [36 F.R. 5906, Mar. 31, 1971, as amended at

accompany the record as the offer of 36 F.R. 7218, Apr. 16, 1971)

proof. § 14.31 Evidence.

§ 14.37 Official transcript. Formal rules of evidence will not apply An official reporter will be designated to the proceeding. Irrelevant, immaterial, for all hearings. The official transcripts unreliable, and unduly repetitious evi

of testimony and argument taken, todence will be excluded from the record gether with any exhibits, briefs, or memoof a hearing Hearsay evidence shall not randa of law filed therewith, shall be be inadmissible as such.

filed with the hearing clerk. Transcripts

may be obtained by the parties and the § 14.32 Official notice.

public from the official reporter at rates Whenever a party offers a public docu- not to exceed the applicable rates fixed ment, or part thereof, in evidence, and by the contract with the reporter. Upon such document, or part thereof, has been notice to all parties, the hearing examshown by the offeror to be reasonably iner may authorize such corrections to available to the public, such document the transcript as are necessary to accuneed not be produced or marked for iden- rately reflect the testimony. tification, but may be offered for official

POSTHEARING PROCEDURES notice as a public document item by specifying the document or relevant part

§ 14.38 Proposed findings of fact and

conclusions of law. thereof. Official notice may also be taken of other matters, at the discretion of the

Within 30 days after the close of the hearing examiner.

hearing each party may file, or the hear

ing examiner may request proposed 8 14.33 Testimony.

findings of fact and conclusions of law Testimony shall be given under oath together with supporting briefs. Such by witnesses at the hearing. A witness proposals and briefs shall be served on

all parties and amici. Reply briefs may be submitted within 15 days after receipt of the initial proposals and briefs. Reply briefs should be filed and served on all parties and amici. § 14.39 Oral argument.

Within the time period for filing initial proposals and briefs, any party may move for oral argument. It is within the hearing examiner's discretion to grant the request. If the request is granted, the hearing examiner shall establish a time and place for oral argument following the filing of the briefs. § 14.40 Record for decision.

The hearing examiner will make his findings, conclusions, and proposed decision upon the basis of the record before him. The transcript of testimony, exhibits, and all papers, documents, and requests filed in the proceedings, except the correspondence section of the docket, shall constitute the record. § 14.41 Recommended determination.

The hearing examiner shall, in an expeditious manner, rule on proposed findings and conclusions submitted by the parties; and shall make recommended findings, conclusions, and decision. These rulings and recommendations shall be certified, together with the record for decision, to the Secretary, for his decision. The rulings, recommended findings, conclusions, and decision of the hearing examiner shall be served on all parties and amici curiae to the proceedings.

§ 14.42 Exceptions to recommended de

termination. Within 30 days after receipt of the recommended decision, all parties to the proceeding may file with the hearing clerk a brief in support of or as an exception to, the recommended findings, conclusions, and decision of the hearing examiner. Service of such briefs or exceptions shall be made on all parties and amici in the proceeding. Such briefs may be responded to within 15 days of their receipt by the other parties. Responses should be filed with the hearing clerk and served on all parties and amici to the proceeding. § 14.43 Record.

After expiration of the time for filing briefs and exceptions, the Secretary shall make a final decision on the basis of the record before him. The record includes the record for decision, the rulings, the recommended findings, conclusions and decision of the hearing examiner, and the exceptions and briefs filed subsequent to the hearing examiner's decision. § 14.44 Final decision.

The Secretary may affirm, modify, or set aside in whole or in part, the recommended findings, conclusions, and decision of the hearing examiner. The decision of the Secretary shall not be final without the approval of the Director, Office of Federal Contract Compliance, Department of Labor.

« PreviousContinue »