and positions of the parties to the Regional Administrator. If the Regional Administrator determines after an investigation, that a labor organization does not qualify for national consultation rights or the petition is not otherwise actionable, he may request the party filing such a petition to withdraw the petition or in the absence of such withdrawal within a reasonable time, he may dismiss the petition subject to review by the Assistant Secretary pursuant to § 202.6(d). The Regional Administrator, if appropriate, may cause a notice of hearing to issue to all interested parties where substantial factual issues exist warranting a hearing. Hearings shall be conducted by Hearing Examiners in accordance with §§ 203.10 through 203.24, with the exception of § 203.14 of this chapter. After considering the Hearing Examiner's report and recommendations, the record, and any exceptions filed thereto, the Assistant Secretary shall issue his decision.

(iv) An agency or primary national subdivision, shall provide notice of its intention to terminate national consultational rights not less than 15 days prior to the intended termination date. A labor organization after receiving such notice, but prior to the intended termination date, may duly file a petition under this section and thereby cause to be stayed further action by the agency or primary national subdivision pending ultimate review and decision by the Assistant Secretary. An agency or primary national subdivision may terminate national consultation rights if no petition has been filed during the notice period prescribed herein.

(e) Filing and service of petition and copies. (1) An original and four copies of a petition shall be filed with the Area Administrator for the area in which the unit exists, or, if the claimed unit exists in two or more areas the petition shall be filed with the Area Administrator for the area in which the headquarters of the activity is located.

(2) The petitioner shall supply with its petition a statement of any other relevant facts and two (2) copies of all correspondence relating to the question concerning representation.

(3) Simultaneously with the filing of a petition, copies shall be served by the petitioner on all known interested parties, and a written statement of such

services shall be furnished to the Area Administrator. The showing of interest submitted with the petition shall not be furnished to any of the parties or organizations listed in the petition.

(f) Adequacy and validity of showing of interest. The Area Administrator shall determine the adequacy of the showing of interest administratively, and such decision shall not be subject to collateral attack at a unit or representation hearing. Any party challenging the validity of showing of interest must file his challenge with the Area Administrator within ten (10) days after the initial date of posting of the notice of petition as provided in § 202.4(b) and support his challenge with evidence. The Area Administrator shall investigate the challenge and report his findings to the Regional Administrator who shall take such action as he deems appropriate.

(g) Challenges to status of a labor organization. Any party challenging the status of a labor organization under the order must file its challenge with the Area Administrator within ten (10) days after the initial date of posting of the notice of petition as provided in § 202.4 (b) and support its challenge with evidence. The Area Administrator shall investigate the challenge and report his findings to the Regional Administrator who shall take such action as he deems appropriate.

[35 F.R. 2557, Feb. 4, 1970, as amended at 36 F.R. 19118, Sept. 29, 1971]

§ 202.3 Timeliness of petition.

(a) When there is no recognized or certified exclusive representative of the employees, a petition will be considered timely filed provided there has been no valid election within the claimed unit within the preceding twelve (12) month period and provided further that the claimed unit is not a subdivision of a unit in which a valid election has been held within such period.

(b) When there is a recognized or certified exclusive representative of the employees, a petition will not be considered timely if filed within twelve (12) months after the grant of exclusive recognition or certification as the exclusive representative of employees in an appropriate unit, unless a signed agreement covering the claimed unit has been

entered into in which case paragraph (c) of this section shall be applicable.

(c) When there is a signed agreement covering a claimed unit, a petition for exclusive recognition or other election petition will not be considered timely if filed during the period within which that agreement is in force or awaiting approval at a higher management level, but not to exceed an agreement period of two (2) years, unless (1) a petition is filed not more than ninety (90) days and not less than sixty (60) days prior to the terminal date of such agreement or two (2) years, whichever is earlier, or (2) unusual circumstances exist which will substantially affect the unit or the majority representation.

(d) When a challenge to the representation status of an incumbent exclusive representative has been filed not more than ninety (90) days and not less than sixty (60) days prior to the terminal date of an agreement, and such challenge is subsequently dismissed or withdrawn, the activity and incumbent exclusive representative shall be afforded a ninety (90) day period free from rival claim within which to consummate an agreement.

(e) When an extension of agreement has been signed more than sixty (60) days before its terminal date, such extension shall not serve as a basis for the denial of a petition submitted in accordance with the time limitations provided herein.

(f) A petition for exclusive recognition or other petition for an election will not be considered timely if filed within a twelve (12) month period following the close of a hearing conducted pursuant to 202.9 concerning the unit or any subdivision thereof.

§ 202.4 Investigation of petition and posting of notice of petition.

(a) Upon the filing of a petition the Area Administrator shall make such investigation as he deems necessary.

(b) Upon the request of the Area Administrator, after the filing of a petition, the activity shall post copies of a notice to all employees in places where notices are normally posted affecting the employees in the unit involved in the proceeding.

(c) Such notice shall set forth: (1) The name of the petitioner, (2) the

description of the unit involved, and (3) a statement that all interested parties are to advise the Area Administrator in writing of their interest within ten (10) days from the date of posting such notice.

(d) The notice shall remain posted for a period of ten (10) days. The notice shall be posted conspicuously and shall not be covered by other material, altered or defaced.

(e) The activity shall furnish the Area Administrator with the names, addresses and telephone numbers of all labor organizations known to represent any of the employees in the claimed unit.

(f) The parties are expected to meet as soon as possible after the filing of the petition and use their best efforts of secure agreement on an appropriate unit, including, where appropriate, consulting with higher authority within the agency and the organization.

(g) Within thirty (30) days following the receipt of a copy of the petition, the activity shall file a response thereto with the Area Administrator raising any matter which is relevant to the petition. A copy of such response shall be furnished to other parties and organizations.

(h) The Area Administrator shall report the essential facts and positions of the parties to the Regional Administrator.

(i) The Regional Administrator shall take appropriate measures which may consist of the approval of a withdrawal request or dismissal of the petition, or the supervision of an election in an approved agreed-upon appropriate unit or the conduct of a hearing.

(a) No labor organization will be permitted to intervene in any proceeding pursuant to this part unless it has submitted a showing of interest of ten (10%) percent or more of the employees in the unit involved in the petition, or has submitted a current or recently expired agreement with the activity covering any of the employees involved, or is the currently recognized or certified exclusive representative of any of the employees involved.

(b) A labor organization seeking exclusive recognition in a unit which encompasses any portion of the unit petitioned for must file a petition with the

Area Administrator supported by a showing of interest of thirty (30%) percent or more of the employees in the unit it claims to be appropriate within ten (10) days after the initial date of posting of the notice of petition as provided in § 202.4(b) unless good cause is shown for extending the period.

(c) No labor organization may participate to any extent in any representation proceeding unless it has notified the Area Administrator of its desire to intervene within ten (10) days after the initial date of posting of the notice of petition as provided in § 202.4(b) unless good cause is shown for extending the period.

(d) Any labor organization intervening for the purpose of seeking exclusive recognition by an activity or retaining its status as exclusive representative must supply a statement to the Area Administrator that it is in full compliance with the order and the regulations in this chapter and that it has submitted to the activity a current roster of its officers and representatives, a copy of its constitution and bylaws and a statement of its objectives.

[35 F.R. 2557, Feb. 4, 1970; 35 F.R. 5688, Apr. 8, 1970]

§ 202.6 Withdrawal, dismissal or deferral of petitions; consolidation of

cases.

(a) If the Regional Administrator determines after an investigation that the petition has not been timely filed, that the claimed unit is not appropriate, that the petitioner has not made a sufficient showing of interest or the petition is not otherwise actionable, he may request the party filing such a petition to withdraw the petition or in the absence of such withdrawal within a reasonable time, he may dismiss the petition. (b) If the Regional Administrator determines, after investigation, that a valid issue has been raised by a challenge under § 202.2 (f) and (g), he may take such action as he deems appropriate including a request to the party filing such a petition to withdraw the petition, dismissal of the petition, deferral of action upon the petition until such time as those issues have been resolved pursuant to this part, or consolidation of such issues with the representation matter for a resolution of all issues.

(c) If the Regional Administrator dismisses the petition, he shall furnish the

petitioner with a written statement of the grounds for the dismissal, sending a copy of such statement to the activity and any intervenors.

(d) The petitioner may obtain a review of such action by filing a request for review with the Assistant Secretary within ten (10) days of service of the notice of dismissal. Copies of the requested review shall be served on the Regional Administrator and the other parties, and statement of service shall be filed with the request for review. The request shall contain a complete statement setting forth facts and reasons upon which the request is based.

(e) A petitioner who withdraws a petition after the issuance of a notice of hearing and before the close of the hearing or after the approval of an agreement for a consent election shall be barred from filing another petition for the same unit or any subdivision thereof for six (6) months.

§ 202.7

Agreement for consent election.

(a) The parties may stipulate subsequent to the filing of a petition that a secret ballot election shall be conducted and such stipulation shall be filed with the Area Administrator. If the Area Administrator approves the stipulation, the election shall be conducted by the agency or activity as appropriate, under the supervision of the Area Administrator, in accordance with § 202.17, among the employees in an agreed upon appropriate unit, to determine whether the employees desire to be represented for purposes of exclusive recognition by any or none of the labor organizations involved. The parties to such proceedings shall be the agency or activity, the petitioner, and any intervenors who have complied with the requirements set forth in § 202.5.

(b) The parties shall stipulate the eligibility period for participation in the election, the date(s), hour(s), and place(s) of the election, the designations on the ballot and other related election procedures.

(c) In the event that the parties cannot agree or the matters contained in paragraph ) of this section, the Area Administrator acting on behalf of the Assistant Secretary shall decide these matters.

§ 202.8 Notice of hearing.

The Regional Administrator may cause a notice of hearing to be issued if, after the filing of a petition, the petitioner, the agency or activity, and all intervenors, within the purview of § 202.5 are unable to resolve issues of appropriateness of unit or related matters. A notice of hearing providing at least ten (10) days notice shall be served on all interested parties and shall include:

(a) A statement of the time, place, and nature of the hearing;

(b) A statement of the unit claimed by the petitioner to be appropriate;

(c) The name of the agency or activity, petitioner and intervenors, if any;

(d) A statement of the authority and jurisdiction under which the hearing is to be held.

§ 202.9 Conduct of hearing.

(a) Hearings shall be conducted by a Hearing Officer and shall be open to the public unless otherwise ordered by the Hearing Officer. At any time another Hearing Officer may be substituted for the Hearing Officer previously presiding. It shall be the duty of the Hearing Officer to inquire fully into all matters in issue and necessary to obtain a full and complete record upon which the Assistant Secretary may make an appropriate decision. An official reporter shall make the only official transcript of such proceedings. Copies of the official transcript will not be provided to the parties but may be purchased by arrangement with the official reporter or may be examined in the Area Office during normal working hours.

(b) Hearings under this section are considered investigatory and not adversary. Their purpose is to develop a full and complete factual record. The rule of relevancy and materiality are paramount; there are no burdens of proof and the technical rules of evidence do not apply.

(c) The Hearing Officer may continue the hearing from day to day, or adjourn it to a later date or to a different place, by announcement thereof at the hearing or by other appropriate notice.

two copies of written motions shall be filed and a copy thereof simultaneously shall be served on the other parties to the proceedings. Motions made prior to the transfer of the case to the Assistant Secretary shall be filed with the Regional Administrator, with a copy to the Area Administrator, except that motions made during the hearing shall be filed with the Hearing Officer. After the transfer of the case to the Assistant Secretary, all motions shall be filed with the Assistant Secretary. Other parties may file responses to such motions within five (5) days of service. The Regional Administrator may rule upon all motions filed with him, causing a copy of said ruling to be served on the parties, or he may refer the motion to the Hearing Officer: Provided, That if the Regional Administrator prior to the close of the hearing grants a motion to dismiss the petition, the petitioner may obtain a review of such ruling in the manner prescribed in § 202.6(d). The Hearing Officer shall rule, either orally on the record or in writing, upon all motions filed at the hearing or referred to him as hereinabove provided, except that all motions to dismiss petitions shall be referred for appropriate action at such time as the entire record is considered by the Regional Administrator or the Assistant Secretary, as the case may be.

(b) Motions to intervene will not be entertained by the Hearing Officer. Intervention will be permitted only to those who have met the requirements set forth in § 202.5.

(c) All motions, rulings, and orders shall become a part of the record. Rulings by the Regional Administrator or by the Hearing Officer shall be considered by the Assistant Secretary when the case is transferred to him for decision.

(d) The right to make motions or to make objections to rulings on motions shall not be deemed waived by participation in the proceeding.

§ 202.11 Rights of the parties.

(a) Any party shall have the right to appear at any hearing in person, by counsel, or by other representative, and any party shall have power to examine and cross-examine witnesses and to introduce into the record documentary and other evidence. Stipulations of fact may be introduced in evidence with respect to any issue.

(b) Any party shall be entitled, upon request, to a reasonable period at the

close of the hearing for oral argument, which shall be included in the stenographic report of the hearing.

§ 202.12 Duties and powers of the Hearing Officer.

It shall be the duty of the Hearing Officer to inquire fully into the facts as they relate to the matter before him. With respect to cases assigned to him between the time he is designated and the transfer of the case to the Assistant Secretary, the Hearing Officer shall have the authority to:

(a) Grant requests for appearance of witnesses or production of records;

(b) Rule upon offers of proof and receive relevant evidence;

(c) Take or cause depositions to be taken whenever the ends of justice would be served thereby;

(d) Limit lines of questioning or testimony which are immaterial, irrelevant or unduly repetitious;

(e) Regulate the course of the hearing and, if appropriate, exclude from the hearing persons who engage in misconduct;

(f) Strike all related testimony of witnesses refusing to answer any questions ruled to be proper;

(g) Hold conferences for the settlement or simplification of the issues by consent of the parties or upon his own motion;

(h) Dispose of procedural requests, motions, or similar matters which shall be made part of the record of the proceeding, including motions referred to the Hearing Officer by the Regional Administrator and motions to amend pleadings;

(i) Examine and cross-examine witnesses and to introduce into the record documentary or other evidence;

(j) Request the parties at any time during the hearing to state their respective positions concerning any issue in the case or theory in support thereof;

(k) Continue, in his discretion, the hearing from day-to-day, or adjourn it to a later date or to a different place, by announcement thereof at the hearing or by other appropriate notice;

(1) Take any other action necessary under the foregoing and not prohibited by the regulations in this chapter.

§ 202.13 Objections to conduct of hearing.

Any objection to the introduction of evidence may be stated orally or in

writing and shall be accompanied by a short statement of the grounds of such objection, and included in the record. No such objection shall be deemed waived by further participation in the hearing. Automatic exception will be allowed to all adverse rulings.

§ 202.14 Filing of briefs.

Any party may file a brief with the Assistant Secretary within seven (7) days after the close of the hearing provided, however, that prior to the close of the hearing and for good cause, the Hearing Officer may allow time not to exceed fourteen (14) additional days for the filing of briefs with the Assistant Secretary. Copies thereof shall be served simultaneously on all other parties to the proceeding. Requests for additional time in which to file a brief under authority of this section not addressed to the Hearing Officer during the hearing shall be made to the Regional Administrator, in writing, and copies thereof shall be served simultaneously on the other parties. Requests for extension of time shall be received not later than three (3) days before the date such briefs are due. No reply brief may be filed except by special permission of the Assistant Secretary.

§ 202.15 Transfer of case to Assistant Secretary; contents of record.

Upon the close of the hearing the Hearing Officer shall transfer this case to the Assistant Secretary. The record of the proceeding shall include the petition, notice of hearing, service sheet, motions, rulings, orders, official transcript of the hearing, stipulations, objections, depositions, exhibits, documentary evidence, and any briefs or other documents submitted by the parties. § 202.16

Decision.