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Board in the adjudication of a case, which has not as yet been included in a published volume offered for sale, may be obtained without charge upon request made to the Board's director of information in Washington, D.C. A copy of a specific and identified opinion and order made by a regional director in the adjudication of a representation case may be obtained without charge upon request made to the regional office where issued.

(3) Copies of forms prescribed by the Board for the filing of charges under section 10 or petitions under section 9 may be obtained without charge from any regional, subregional, or resident office of the Board.

(b) (1) The formal documents constituting the record in a case or proceeding are matters of official record and, until destroyed pursuant to applicable statutory authority, are available to the public for inspection and copying during normal business hours, at the appropriate regional office of the Board or at the Board's office in Washington, D.C., as the case may be.

(2) The executive secretary shall certify copies of the formal documents upon request made a reasonable time in advance of need and payment of lawfully prescribed costs.

(c) Requests for the inspection and copying of identifiable records other than those specified in paragraphs (a) and (b) of this section shall be made to the Board through its executive secretary, or to the general counsel, as may be appropriate, in Washington, D.C. Such a request must be in writing and must provide a sufficiently specific description of the record to permit its identification and location. The applicant shall be informed of the time and place at which the record will be made available. Should the Board or the general counsel determine that the request not be granted, prompt notice of the determination shall be given the applicant, accompanied by a written statement of the reasons for the denial.

(d) Subject to the provisions of §§ 102.31(c) and 102.66 (c), all files, documents, reports, memoranda, and records of the agency falling within the exemptions specified in Public Law 90-23, 5 U.S.C. section 552(b), shall not be made available for inspection or copying, unless specifically permitted by the Board, its chairman, or its general counsel.

section or specifically made available under paragraph (c) of this section, except for those materials otherwise published and offered for sale, shall be supplied upon request and the payment of established fees for such copying. However, no fees shall be charged for copies of those materials listed in paragraph (a) of this section as being obtainable without charge.

(2) In the event the location and production of materials requested by an applicant for his inspection and copying, or for copying by the agency, involve significant cost to the agency, the applicant shall be informed in advance that he will be required to provide reimbursement for the reasonable direct and indirect costs incurred by the agency in such location and production.

[32 F.R. 9551, July 1, 1967, as amended at 33 F.R. 4139, Mar. 5, 1968]

§ 102.118 Board employees prohibited

from producing files, records, etc., pursuant to subpoena ad testificandum or subpoena duces tecum; prohibited from testifying in regard thereto; production of witnesses' statements after direct testimony.

(a) No regional director, field examiner, trial examiner, attorney, specially designated agent, general counsel, member of the Board, or other officer or employee of the Board shall produce or present any files, documents, reports, memoranda, or records of the Board or testify in behalf of any party to any cause pending in any court or before the Board, or any other board, commission, or other administrative agency of the United States, or of any State, territory, or the District of Columbia with respect to any information, facts, or other matter coming to his knowledge in his official capacity or with respect to the contents of any files, documents, reports, memoranda, or records of the Board, whether in answer to a subpena, subpoena duces tecum, or otherwise, without the written consent of the Board or the chairman of the Board if the official or document is subject to the supervision or control of the Board; or the general counsel if the official or document is subject to the supervision or control of the general counsel. Whenever any subpoena ad testificandum or subpoena duces tecum, the purpose of which is to adduce testimony or require the production of records as described hereinabove, shall have been served on any such person or

(e) (1) Copies of materials available under paragraphs (a) and (b) of this

other officer or employee of the Board, he will, unless otherwise expressly directed by the Board or the chairman of the Board or the general counsel, as the case may be, move pursuant to the applicable procedure, whether by petition to revoke, motion to quash, or otherwise, to have such subpena invalidated on the ground that the evidence sought is privileged against disclosure by this rule.

(b) (1) Notwithstanding the prohibitions of paragraph (a) of this section, after a witness called by the general counsel or by the charging party has testified in a hearing upon a complaint under section 10(c) of the act, the trial examiner shall, upon motion of the respondent, order the production of any statement (as hereinafter defined) of such witness in the possession of the general counsel which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the trial examiner shall order it to be delivered directly to the respondent for his examination and use for the purpose of cross-examination.

(2) If the general counsel claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the trial examiner shall order the general counsel to deliver such statement for the inspection of the trial examiner in camera. Upon such delivery the trial examiner shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised the trial examiner shall then direct delivery of such statement to the respondent for his use on cross-examination. If, pursuant to such procedure, any portion of such statement is withheld from the respondent and the respondent objects to such withholding, the entire text of such statement shall be preserved by the general counsel, and, in the event the respondent files exceptions with the Board based upon such withholding, shall be made available to the Board for the purpose of determining the correctness of the ruling of the trial examiner. If the general counsel elects not to comply with an order of the trial examiner directing delivery to the respondent of any such statement, or such portion thereof as the

trial examiner may direct, the trial examiner shall strike from the record the testimony of the witness.

(c) The provisions of paragraph (b) of this section shall also apply after any witness has testified in any postelection hearing pursuant to § 102.69(d) and any party has moved for the production of any statement (as hereinafter defined) of such witness in possession of any agent of the Board which relates to the subject matter as to which the witness has testified. The authority exercised by the trial examiner under paragraph (b) of this section shall be exercised by the hearing officer presiding.

(d) The term "statement" as used in paragraphs (b) and (c) of this section means: (1) A written statement made by said witness and signed or otherwise adopted or approved by him; or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the party obligated to produce the statement and recorded contemporaneously with the making of such oral statement. [33 F.R. 9819, July 9, 1968]

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spect or in any capacity in connection with any case or proceeding pending before the Board or any regional offices during the time of his employment with the Board.

[28 F.R. 7975, Aug. 6, 1963]

Subpart M-Construction of Rules § 102.121 Rules to be liberally construed.

The rules and regulations in this part shall be liberally construed to effectuate the purposes and provisions of the act. Subpart N Enforcement of Rights, Privileges, and Immunities Granted or Guaranteed Under Section 222(f), Communications Act of 1934, as Amended, to Employees of Merged Telegraph Carriers

§ 102.122

Enforcement.

All matters relating to the enforcement of rights, privileges, or immunities granted or guaranteed under section 222 (f) of the Communications Act of 1934, as amended, shall be governed by the provisions of Subparts A, B, I, J, K, and M of this part, insofar as applicable, except that reference in Subpart B of this part to "unfair labor practices" or "unfair labor practices affecting commerce" shall for the purposes of this article mean the denial of any rights, privileges, or immunities granted or guaranteed under section 222(f) of the Communications Act of 1934, as amended.

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§ 102.125 Action on petition.

Upon the filing of such petition, the Board shall consider the same and may thereupon either grant or deny the petition in whole or in part, conduct an appropriate hearing thereon, or make other disposition of the petition. Should the petition be denied in whole or in part, prompt notice shall be given of the denial, accompanied by a simple statement of the grounds unless the denial is self-explanatory.

Subpart P-Ex Parte Communications

SOURCE: The provisions of this Subpart P appear at 31 F.R. 13850, Oct. 28, 1966; 31 F.R. 14394, Nov. 9, 1966, unless otherwise noted. § 102.126

Unauthorized communica

tions.

No person who is a party to, an agent of a party to, or who intercedes in, an onthe-record proceeding of the types defined in § 102.128, shall make an unauthorized ex parte communication to Board agents of the categories designated in that section, concerning the disposition on the merits of the substantive and procedural issues in the proceeding. § 102.127 Definitions.

When used in this subpart:

(a) The term "person who is a party," to whom the prohibitions apply, shall include any individual outside this agency (whether in public or private life), partnership, corporation, association, or other entity, who is named or admitted as a party or who seeks admission as a party, and the general counsel or his representatives when prosecuting an unfair labor practice proceeding before the Board pursuant to section 10 (b) of the act.

or

(b) The term "person who intercedes," to whom the prohibitions apply, shall include any individual outside this agency (whether in public or private life), partnership, corporation, association, other entity, other than a party or an agent of a party, who volunteers a communication which he may be expected to know may advance or adversely affect the interests of a particular party to the proceeding, whether or not he acts with the knowledge or consent of any party or any party's agent.

[24 F.R. 9102, Nov. 7, 1959, as amended at 32 F.R. 8406, June 13, 1967]

§ 102.128 Types of on-the-record proceedings; categories of Board agents; and duration of prohibition.

Unless otherwise provided by specific order of the Board entered in the proceeding, the prohibition of § 102.126 shall be applicable in the following types of on-the-record proceedings to unauthorized ex parte communications made to the designated categories of Board agents who participate in the decision, from the stage of the proceeding specified until the issues are finally resolved by the Board for the purposes of that proceeding under prevailing rules and practices:

(a) In a preelection proceeding pursuant to section 9(c) (1) or 9(e), or in a unit clarification or certification amendment proceeding pursuant to section 9(b), of the Act, in which a formal hearing is held, communications to the regional director and members of his staff who review the record and prepare a draft of his decision, and members of the Board and their legal assistants, from the time the hearing is opened.

(b) In a postelection proceeding pursuant to section 9(c) (1) or 9(e) of the Act, in which a formal hearing is held, communications to the hearing officer, the regional director and members of his staff who review the record and prepare a draft of his report or decision, and members of the Board and their legal assistants, from the time the hearing is opened.

(c) In a postelection proceeding pursuant to section 9(c) (1) or 9(e), or in a unit clarification or certification amendment proceeding pursuant to section 9(b), of the Act, in which no formal hearing is held, communications to members of the Board and their legal assistants, from the time the regional director's report or decision is issued.

(d) In a proceeding pursuant to section 10(k) of the Act, communications to members of the Board and their legal assistants, from the time the hearing is opened.

(e) In an unfair labor practice proceeding pursuant to section 10(b) of the Act, communications to the trial examiner assigned to hear the case or to make rulings upon any motions or issues therein and members of the Board and their legal assistants, from the time the complaint is issued.

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ments.

(a) Any Board agent of the categories defined in § 102.128 to whom a prohibited oral ex parte communication is attempted to be made shall refuse to listen to the communication, inform the communicator of this rule, and advise him that if he has anything to say it should be said in writing with copies to all parties. Any such Board agent who receives a written ex parte communication which he has reason to believe is prohibited by this subpart shall promptly forward such communication to the Office of the Executive Secretary if the proceeding is then pending before the Board, to the chief trial examiner if the proceeding is then pending before a trial examiner, or to the regional director involved if the proceeding is then pending before a hearing officer or the regional director. If the circumstances in which the unauthorized communication was made are not apparent from the communication itself, a statement describing those circumstances shall also be submitted. The executive secretary, the chief trial examiner, or the regional director to whom such a communication is forwarded shall then place the communication in the public file maintained by the agency and shall serve copies of the communication on all other parties to the proceeding and attorneys of record for the parties. Within 10 days after the mailing of such copies, any party may file with the executive secretary, the chief trial examiner,

or regional director serving the communication, and serve on all other parties, a statement setting forth facts or contentions to rebut those contained in the unauthorized communication.

(b) Upon appropriate motion to the regional director, the trial examiner, or the Board, before whom the proceeding is pending, under circumstances in which such presiding authority shall determine that the dictates of fairness so require, the unauthorized communication and response thereto may be made part of the record of the proceeding, and provision made for any further action, including reopening of the record, which may be required under the circumstances. No action taken pursuant to this provision shall constitute a waiver of the power of the Board to impose an appropriate penalty under § 102.134. § 102.134 Penalties and enforcement.

Upon notice and hearing, the Board may censure, suspend, or revoke the privilege of practice before the agency of any person who knowingly and willfully makes or solicits the making of a prohibited ex parte communication. To the extent permitted by law, the Board may, under appropriate circumstances, deny or limit remedial measures otherwise available under the act to any party who shall, directly or indirectly, knowingly and willfully make or solicit the making of an unauthorized communication. However, before the Board institutes formal proceedings under this section, it shall first advise the person or persons concerned in writing that it proposes to take such action and that they may show cause, within a period to be stated in such written advice, but not less than 7 days from the date thereof, why it should not take such action. The Board may censure, or, to the extent permitted by law, suspend, dismiss, or institute proceedings for the dismissal of, any Board agent who knowingly and willfully violates the prohibitions and requirements of this rule.

[32 F.R. 8406, June 13, 1967]

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