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Board in the adjudication of a case, section or specifically made available which has not as yet been included in a under paragraph (c) of this section, expublished volume offered for sale, may cept for those materials otherwise pubbe obtained without charge upon request lished and offered for sale, shall be supmade to the Board's director of informa- plied upon request and the payment of tion in Washington, D.C. A copy of a established fees for such copying. Howspecific and identified opinion and order ever, no fees shall be charged for copies made by a regional director in the ad- of those materials listed in paragraph judication of a representation case may (a) of this section as being obtainable be obtained without charge upon request without charge. made to the regional office where issued. (2) In the event the location and pro

(3) Copies of forms prescribed by the duction of materials requested by an Board for the filing of charges under applicant for his inspection and copying, section 10 or petitions under section 9 or for copying by the agency, involve may be obtained without charge from significant cost to the agency, the appliany regional, subregional, or resident cant shall be informed in advance that office of the Board.

he will be required to provide reimburse(b) (1) The formal documents con- ment for the reasonable direct and instituting the record in a case or proceed- direct costs incurred by the agency in ing are matters of official record and, such location and production. until destroyed pursuant to applicable [32 F.R. 9551, July 1, 1967, as amended at statutory authority, are available to the 33 F.R. 4139, Mar. 5, 1968] public for inspection and copying during

§ 102.118 Board employees prohibited normal business hours, at the appropri

from producing files, records, etc., ate regional office of the Board or at the Board's office in Washington, D.C., as

pursuant to subpoena ad testifican

dum or subpoena duces tecum; prothe case may be.

hibited from testifying in regard (2) The executive secretary shall cer

thereto; production of witnesses' tify copies of the formal documents upon statements after direct testimony. request made a reasonable time in ad

(a) No regional director, field examvance of need and payment of lawfully

iner, trial examiner, attorney, specially prescribed costs.

designated agent, general counsel, mem(c) Requests for the inspection and copying of identifiable records other than

ber of the Board, or other officer or em

ployee of the Board shall produce or those specified in paragraphs (a) and (b) of this section shall be made to the

present any files, documents, reports, Board through its executive secretary, or

memoranda, or records of the Board or to the general counsel, as may be ap

testify in behalf of any party to any propriate, in Washington, D.C. Such a

cause pending in any court or before the request must be in writing and must

Board, or any other board, commission,

or other administrative agency of the provide a sufficiently specific description

United States, or of any State, territory, of the record to permit its identification

or the District of Columbia with respect and location. The applicant shall be informed of the time and place at which

to any information, facts, or other matter the record will be made available. Should

coming to his knowledge in his official

capacity or with respect to the contents the Board or the general counsel determine that the request not be granted,

of any files, documents, reports, memoprompt notice of the determination shall

randa, or records of the Board, whether be given the applicant, accompanied by

in answer to a subpena, subpoena duces a written statement of the reasons for

tecum, or otherwise, without the written the denial.

consent of the Board or the chairman

of the Board if the official or document (d) Subject to the provisions of $$ 102.31(c) and 102.66(c), all files, documents,

is subject to the supervision or control

of the Board; or the general counsel if reports, memoranda, and records of tie

the official or document is subject to the agency falling within the exemptions specified in Public Law 90–23, 5 U.S.C.

supervision or control of the general section 552(b), shall not be made avail

counsel. Whenever any subpoena ad able for inspection or copying, unless

testificandum or subpoena duces tecum, specifically permitted by the Board, its the purpose of which is to adduce testichairman, or its general counsel.

mony or require the production of rec(e) (1) Copies of materials available ords as described hereinabove, shall under paragraphs (a) and (b) of this have been served on any such person or other officer or employee of the Board, trial examiner may direct, the trial exhe will, unless otherwise expressly di- aminer shall strike from the record the rected by the Board or the chairman of testimony of the witness. the Board or the general counsel, as the (c) The provisions of paragraph (b) case may be, move pursuant to the ap- of this section shall also apply after any plicable procedure, whether by petition witness has testified in any postelection to revoke, motion to quash, or other- hearing pursuant to § 102.69(d) and any wise, to have such subpena invalidated party has moved for the production of on the ground that the evidence sought any statement (as hereinafter defined) is privileged against disclosure by this of such witness in possession of any rule.

agent of the Board which relates to the (b) (1) Notwithstanding the prohibi- subject matter as to which the witness tions of paragraph (a) of this section, has testified. The authority exercised by after a witness called by the general the trial examiner under paragraph (b) counsel or by the charging party has of this section shall be exercised by the testified in a hearing upon a complaint hearing officer presiding. under section 10(c) of the act, the trial (d) The term "statement” as used in examiner shall, upon motion of the re- paragraphs (b) and (c) of this section spondent, order the production of any means: (1) A written statement made statement (as hereinafter defined) of by said witness and signed or otherwise such witness in the possession of adopted or approved by him; or (2) a the general counsel which relates to stenographic, mechanical, electrical, or the subject matter as to which the other recording, or a transcription witness has testified. If the entire thereof, which is a substantially vercontents of any such statement re- batim recital of an oral statement made late to the subject matter of the testi- by said witness to an agent of the party mony of the witness, the trial examiner obligated to produce the statement and shall order it to be delivered directly to recorded contemporaneously with the the respondent for his examination and making of such oral statement. use for the purpose of cross-examination. (33 F.R. 9819, July 9, 1968]

(2) If the general counsel claims that any statement ordered to be produced

Subpart -Practice Before the Board under this section contains matter which

of Former Employees 1 does not relate to the subject matter of

§ 102.119 Prohibition of practice before the testimony of the witness, the trial

Board of its former regional emexaminer shall order the general counsel

ployees in cases pending in region to deliver such statement for the inspec

during employment. tion of the trial examiner in camera. Upon such delivery the trial examiner No person who has been an employee shall excise the portions of such state

of the Board and attached to any of ment which do not relate to the subject

its regional offices shall engage in pracmatter of the testimony of the witness.

tice before the Board or its agents in any With such material excised the trial respect or in any capacity in connection examiner shall then direct delivery of with any case or proceeding which was such statement to the respondent for his pending in any regional office to which use on cross-examination. If, pursuant

he was attached during the time of his to such procedure, any portion of such

employment with the Board. statement is withheld from the respond

[28 F.R. 7975, Aug. 6, 1963) ent and the respondent objects to such withholding, the entire text of such § 102.120 Same; application to former statement shall be preserved by the gen

employees of Washington staff. eral counsel, and, in the event the re- No person who has been an employee spondent files exceptions with the Board of the Board and attached to the Washbased upon such withholding, shall be ington staff shall engage in practice bemade available to the Board for the pur- fore the Board or its agents in any repose of determining the correctness of the ruling of the trial examiner. If the 1 Attention is directed to Public Law 87general counsel elects not to comply with

849 (76 Stat. 1119) which amends Chapter 11

of Title 18, United States Code, entitled an order of the trial examiner directing

"Bribery, Graft and Conflicts of Interest" and delivery to the respondent of any such which provides for the imposition of criminal statement, or such portion thereof as the sanctions under certain circumstances.

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 con

strued. 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. § 102.123 Amendment or rescission of

rules. Any rule or regulation may be amended or rescinded by the Board

any time.

Subpart O-Amendments § 102.124 Petitions for i ss u ance,

amendment, or repeal of rules. Any interested person may petition the Board, in writing, for the issuance, amendment, or repeal of a rule or regulation. An original and seven copies of such petition shall be filed with the Board in Washington, D.C., and shall state the rule or regulation proposed to be issued, amended, or repealed, together with a statement of grounds in support of such petition. [29 F.R. 15922, Nov. 28, 1964)

8 102.125 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.

(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,

or 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 pro

ceedings; 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.

(f) In any other proceeding to which the Board by specific order makes the prohibition applicable, to the categories of personnel and from the stage of the proceeding specified in the order. (24 F.R. 9102, Nov. 7, 1959, as amended at 32 F.R. 8406, June 13, 1967) 102.129 Communications prohibited.

Except as provided in § 102.130 ex parte communications prohibited by $ 102.126 shall include:

(a) Such communications, when written, if copies thereof are not contemporaneously served by the communicator on all parties to the proceeding in accordance with the provisions of § 102.112.

(b) Such communications, when oral, unless advance notice thereof is given by the communicator to all parties in the proceeding and adequate opportunity afforded to them to be present. § 102.130 Communications not prohib

ited. Ex parte communications prohibited by $ 102.126 shall not include:

(a) Oral or written communications which relate solely to matters which the hearing officer, regional director, trial examiner, or member of the Board is authorized by law or Board rules to entertain or dispose of on an ex parte basis.

(b) Oral or written requests for information solely with respect to the status of a proceeding.

(c) Oral or written communications which all the parties to the proceeding agree, or which the responsible official formally rules, may be made on an ex parte basis.

(d) Oral or written communications proposing settlement or an agreement for disposition of any or all issues in the proceeding.

(e) Oral or written communications which concern matters of general significance to the field of labor-management relations or administrative practice and which are not specifically related to pending on-the-record proceedings. § 102.131 Communications by Board

agents. No Board agent of the categories defined in § 102.128, participating in a particular proceeding as defined in that section, shall (a) request or entertain any prohibited ex parte communications; or (b) make any prohibited ex parte communications about the proceeding to any

person who is a party to the proceeding, any agent of any person who is a party, or any other person, whom he has reason to know may transmit the communication to a person who is a party or to an agent of a person who is a party. $ 102.132 Solicitation of prohibited

communications. No person shall knowingly and willfully solicit the making of an unauthorized ex parte communication by any other person. $ 102.133 Receipt of prohibited com

munications; reporting require

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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