answer any questions ruled to be proper;

(j) Hold conferences for the settlement or simplification of the issues by consent of the parties or upon the judge's own motion;

(k) Dispose of procedural requests, motions, or similar matters, including motions referred to the Administrative Law Judge by the Regional Director and motions for summary judgment or to amend pleadings; dismiss complaints or portions thereof; order hearings reopened; and, upon motion, order proceedings consolidated or severed prior to issuance of the Administrative Law Judge's decision;

(1) 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;

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

(n) Prepare, serve and transmit the decision pursuant to §2423.26;

(0) Take official notice of any material fact not appearing in evidence in the record, which is among the traditional matters of judicial notice: Provided, however, That the parties shall be given adequate notice, at the hearing or by reference in the Administrative Law Judge's decision of the matters so noticed, and shall be given adequate opportunity to show the contrary;

(p) Approve requests for withdrawal of complaints based on informal settlements occurring after the opening of the hearing pursuant to §2423.11(e)(1), and transmit formal settlement agreements to the Authority for approval pursuant to § 2423.11(e)(2) and (3);

(q) Grant or deny requests made at the hearing to intervene and to present testimony;

(r) Correct or approve proposed corrections of the official transcript when deemed necessary;

(s) Sequester witnesses where appropriate; and

(t) Take any other action deemed necessary under the foregoing and not prohibited by the regulations in this subchapter.

§2423.20 Unavailability of Administrative Law Judges.

In the event the Administrative Law Judge designated to conduct the hearing becomes unavailable, the Chief Administrative Law Judge shall designate another Administrative Law Judge for the purpose of further hearing or issuance of a decision on the record as made, or both.

§ 2423.21 Objection to conduct of hearing.

(a) Any objection with respect to the conduct of the hearing, including any objection to the introduction of evidence, may be stated orally or in writing accompanied by a short statement of the grounds for such objection, and included in the record. No such objection shall be deemed waived by further participation in the hearing. Such objection shall not stay the conduct of the hearing.

(b) Formal exceptions to adverse rulings are unnecessary. Automatic exceptions will be allowed to all adverse rulings. Except by special permission of the Authority, and in view of §2429.11 of this subchapter, rulings by the Administrative Law Judge shall not be appealed prior to the transmittal of the case to the Authority, but shall be considered by the Authority only upon the filing of exceptions to the Administrative Law Judge's decision in accordance with §2423.27. In the discretion of the Administrative Law Judge, the hearing may be continued or adjourned pending any such request for special permission to appeal.

§ 2423.22 Motions.

(a) Filing of Motions. (1) Motions made prior to a hearing and any response thereto shall be made in writing and filed with the Regional Director: Provided, however, That after the issuance of a complaint by the Regional Director any motion to change the date of the hearing shall be filed with the Chief Administrative Law Judge immediately upon discovery of the circumstance which in the judgment of the moving party warrants a change in the date of the hearing. The moving party shall attempt to contact the other parties and shall inform the Chief Administrative Law Judge of the

positions of the other parties on the motion. Only in extraordinary circumstances will such a motion be granted where filed less than ten (10) days prior to the scheduled hearing. Motions made after the hearing opens and prior to the transmittal of the case to the Authority shall be made in writing to the Administrative Law Judge or orally on the record. After the transmittal of the case to the Authority, motions and any response thereto shall be filed in writing with the Authority: Provided, however, That a motion to correct the transcript shall be filed with the Administrative Law Judge.

(2) A response to a motion shall be filed within five (5) days after service of the motion, unless otherwise directed.

(3) An original and two (2) copies of the motions and responses shall be filed, and copies shall be served on the parties. A statement of such service shall accompany the original.

(b) Rulings on motions. (1) Regional Directors may rule on all motions filed with them before the hearing, or they may refer them to the Chief Administrative Law Judge.

(2) Except by special permission of the Authority, and in view of §2429.11 of this subchapter, rulings by the Regional Director shall not be appealed prior to the transmittal of the case to the Authority, but shall be considered by the Authority when the case is transmitted to it for decision.

(3) Administrative Law Judges may rule on motions referred to them prior to the hearing and on motions filed after the beginning of the hearing and before the transmittal of the case to the Authority. Such motions may be ruled upon by the Chief Administrative Law Judge in the absence of an Administrative Law Judge.

(4) Except by special permission of the Authority, and in view of §2429.11 of this subchapter, rulings by Administrative Law Judges shall not be appealed prior to the transmittal of the case to the Authority, but shall be considered by the Authority when the case is transmitted to it for decision. In the discretion of the Administrative Law Judge, the hearing may be continued

or adjourned pending any such request for special permission to appeal.

[45 FR 3506, Jan. 17, 1980, as amended at 46 FR 40674, Aug. 11, 1981]

§ 2423.23 Waiver of objections.

Any objection not made before an Administrative Law Judge shall be deemed waived.

§ 2423.24 Oral argument at the hearing.

Any party shall be entitled, upon request, to a reasonable period prior to the close of the hearing for oral argument, which shall be included in the official transcript of the hearing.

2423.25 Filing of briefs.

Any party desiring to submit a brief to the Administrative Law Judge shall file the original and four (4) copies within a reasonable time fixed by the Administrative Law Judge, but not in excess of thirty (30) days from the close of the hearing. Copies of any brief shall be served on all other parties to the proceeding and a statement of such service shall be filed with the Administrative Law Judge. Requests for extensions of time pursuant to §2429.23(a) to file briefs shall be made to the Chief Administrative Law Judge, in writing, and copies thereof shall be served on the other parties. A statement of such service shall be furnished. Requests for extensions of time must be received not later than five (5) days before the date such briefs are due. No reply brief may be filed except by special permission of the Administrative Law Judge. [46 FR 40674, Aug. 11, 1981]

§2423.26 Transmittal of the Administrative Law Judge's decision to the Authority; exceptions.

(a) After the close of the hearing, and the receipt of briefs, if any, the Administrative Law Judge shall prepare the decision expeditiously. The Administrative Law Judge shall prepare a decision even when the parties enter into a stipulation of fact at the hearing. The decision shall contain findings of fact, conclusions of law, and the reasons or basis therefore, including any necessary credibility determinations, and conclusions as to the disposition of the

case including, where appropriate, the remedial action to be taken and notices to be posted.

(b) The Administrative Law Judge shall cause the decision to be served promptly on all parties to the proceeding. Thereafter, the Administrative Law Judge shall transmit the case to the Authority including the judge's decision and the record. The record shall include the charge, complaint, service sheet, answer, motions, rulings, orders, official transcript of the hearing, stipulations, objections, depositions, interrogatories, exhibits, documentary evidence and any briefs or other documents submitted by the parties.

(c) An original and four (4) copies of any exception to the Administrative Law Judge's decision and briefs in support of exceptions may be filed by any party with the Authority within twenty-five (25) days after service of the decision: Provided, however, That the Authority may for good cause shown extend the time for filing such exceptions. Requests for extensions of time pursuant to §2429.23(a) to file exceptions must be received by the Authority not later than five (5) days before the date the exceptions are due. Copies of such exceptions and any supporting briefs shall be served on all other parties, and a statement of such service shall be furnished to the Authority.

[45 FR 3506, Jan. 17, 1980, as amended at 46 FR 40674, Aug. 11, 1981]

(a) Exceptions to an Administrative Law Judge's decision shall:

(1) Set forth specifically the questions upon which exceptions are taken;

(2) Identify that part of the Administrative Law Judge's decision to which objection is made; and

(3) Designate by precise citation of page the portions of the record relied on, state the grounds for the exceptions, and include the citation of authorities unless set forth in a supporting brief.

(b) Any exception to ruling, finding or conclusion which is not specifically urged shall be deemed to have been waived. Any exception which fails to

comply with the foregoing requirements may be disregarded.

§2423.28 Briefs in support of exceptions; oppositions to exceptions; cross-exceptions.

(a) Any brief in support of exceptions shall contain only matters included within the scope of the exceptions and shall contain, in the order indicated, the following:

(1) A concise statement of the case containing all that is material to the consideration of the questions presented;

(2) A specification of the questions involved and to be argued; and

(3) The argument, presenting clearly the points of fact and law relied on in support of the position taken on each question, with specific page reference to the transcript and the legal or other material relied on.

(b) Any party may file an opposition to exceptions, and/or cross-exceptions, and a supporting brief with the Authority within ten (10) days after service of any exceptions to an Administrative Law Judge's decision. Copies of any opposition and/or cross-exceptions and of any supporting briefs shall be served on all other parties, and a statement of such service shall be submitted with the documents filed with the Authority.

[45 FR 3506, Jan. 17, 1980, as amended at 46 FR 40674, Aug. 11, 1981]

§ 2423.29 Action by the Authority.

(a) After considering the Administrative Law Judge's decision, the record, and any exceptions and related submissions filed, the Authority shall issue its decision affirming or reversing the Administrative Law Judge, in whole, or in part, or making such other disposition of the matter as it deems appropriate: Provided, however, That in the absence of exceptions filed timely and in accordance with §2423.27, the findings, conclusions, and recommendations in the decision of the Administrative Law Judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority, and all objections and exceptions thereto shall be deemed waived for all purposes.

(b) Upon finding a violation, the Authority shall issue an order:

(1) To cease and desist from any such unfair labor practice in which the agency or labor organization is engaged;

(2) Requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect;

(3) Requiring reinstatement of an employee with backpay in accordance with 5 U.S.C. 5596; or

(4) Including any combination of the actions described in paragraphs (1) through (3) of this paragraph (b), or such other action as will carry out the purpose of the Federal Service LaborManagement Relations Statute.

(c) Upon finding no violation, the Authority shall dismiss the complaint.

[45 FR 3506, Jan. 17, 1980, as amended at 46 FR 40674, Aug. 11, 1981]

$2423.30 Compliance with decisions

and orders of the Authority.

When remedial action is ordered, the respondent shall report to the appropriate Regional Director within a specified period that the required remedial action has been effected. When the General Counsel finds that the required remedial action has not been effected, the General Counsel shall take such action as may be appropriate, including referral to the Authority for enforcement.

§ 2423.31 Backpay proceedings.

After the entry of an Authority order directing payment of backpay, or the entry of a court decree enforcing such order, if it appears to the Regional Director that a controversy exists between the Authority and a respondent which cannot be resolved without a formal proceeding, the Regional Director may issue and serve on all parties a backpay specification accompanied by a notice of hearing or a notice of hearing without a specification. The respondent shall, within twenty (20) days after the service of a backpay specification accompanied by a notice of hearing, file an answer thereto in accordance with §2423.13 with the Regional Director issuing such specifica

2424.10 Authority decision and order; compliance.

Subpart B-Criteria for Determining Compelling Need for Agency Rules and Regulations

2424.11 Illustrative criteria. AUTHORITY: 5 U.S.C. 7134.

SOURCE: 45 FR 3511, Jan. 17, 1980, unless otherwise noted.

Subpart A-Instituting an Appeal § 2424.1 Conditions governing review.

The Authority will consider a negotiability issue under the conditions prescribed by 5 U.S.C. 7117 (b) and (c), namely: If an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter proposed to be bargained because, as proposed, the matter is inconsistent with law, rule or regulation, the exclusive representative may appeal the allegation to the Authority when

(a) It disagrees with the agency's allegation that the matter as proposed to be bargained is inconsistent with any Federal law or any Government-wide rule or regulation; or

(b) It alleges, with regard to any agency rule or regulation asserted by the agency as a bar to negotiations on the matter, as proposed, that:

(1) The rule or regulation violates applicable law, or rule or regulation of appropriate authority outside the agency;

(2) The rule or regulation was not issued by the agency or by any primary national subdivision of the agency, or otherwise is not applicable to bar negotiations with the exclusive representative, under 5 U.S.C. 7117(a)(3); or

(3) No compelling need exists for the rule or regulation to bar negotiations on the matter, as proposed, because the rule or regulation does not meet the criteria established in subpart B of this part.

$2424.2 Who may file a petition.

A petition for review of a negotiability issue may be filed by an exclusive representative which is a party to the negotiations.

$2424.3 Time limits for filing.

The time limit for filing a petition for review is fifteen (15) days after the date the agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained is served on the exclusive representative. The exclusive representative shall request such allegation in writing and the agency shall make the allegation in writing and serve a copy on the exclusive representative: Provided, however, That review of a negotiability issue may be requested by an exclusive representative under this subpart without a prior written allegation by the agency if the agency has not served such allegation upon the exclusive representative within ten (10) days after the date of the receipt by any agency bargaining representative at the negotiations of a written request for such allegation.

§ 2424.4 Content of petition; service. (a) A petition for review shall be dated and shall contain the following:

(1) A statement setting forth the express language of the proposal sought to be negotiated as submitted to the agency;

(2) An explicit statement of the meaning attributed to the proposal by the exclusive representative including:

(1) Explanation of terms of art, acronyms, technical language, or any other aspect of the language of the proposal which is not in common usage; and

(ii) Where the proposal is concerned with a particular work situation, or other particular circumstances, a description of the situation or circumstances which will enable the Authority to understand the context in which the proposal is intended to apply;

(3) A copy of all pertinent material, including the agency's allegation in writing that the matter, as proposed, is not within the duty to bargain in good faith, and other relevant documentary material; and

(4) Notification by the petitioning labor organization whether the negotiability issue is also involved in an unfair labor practice charge filed by such labor organization under part 2423 of this subchapter and pending before the General Counsel.

(b) A copy of the petition including all attachments thereto shall be served on the agency head and on the principal agency bargaining representative at the negotiations.

(c)(1) Filing an incomplete petition for review will result in the exclusive representative being asked to provide the missing or incomplete information. Noncompliance with a request to complete the record may result in dismissal of the petition.

(2) The processing priority accorded to an incomplete petition, relative to other pending negotiability appeals, will be based upon the date when the petition is completed—not the date it was originally filed.

[45 FR 3511, Jan. 17, 1980, as amended at 46 FR 40674, Aug. 11, 1981; 51 FR 45753, Dec. 22, 1986]

§ 2424.5 Selection of the unfair labor practice procedure or the negotiability procedure.

Where a labor organization files an unfair labor practice charge pursuant to part 2423 of this subchapter which involves a negotiability issue, and the labor organization also files pursuant to this part a petition for review of the