resolution by a section 9 (c) proceedings or the petitioner's card showing of authorization by the employees is insufficient to meet the 30 percent statutory requirement referred to in paragraph (a) of this section. (c) For the same or similar reasons the Regional Director may request the petitioner to withdraw its petition. If petitioner, despite the Regional Director's recommendation, refuses to withdraw the petition, the Regional Director then dismisses the petition, stating the grounds for his dismissal and informing petitioner of his right of appeal to the Board in Washington, D. C. The petitioner may within 10 days appeal from the Regional Director's dismissal by filing such request with the Board in Washington. The request shall contain a complete statement setting forth the facts and reasons upon which the request is made. After a full review of the file with the assistance of its staff, the Board may sustain the dismissal, stating the grounds of its affirmance, or may direct the Regional Director to take further action. § 202.23 Consent agreements providing for election. The Board makes available to the parties two types of informal consent procedures through which authorization issues can be resolved without resort to formal procedures. These informal agreements are commonly referred to as (a) consent election agreement, followed by Regional Director's determination, and (b) consent election agreement, followed by Board certification. Forms for use in these informal procedures are available in Regional Offices. The procedures to be used in connection with a consent election agreement providing for Regional Director's determination and a consent election agreement providing for Board certification are the same as those already described in Subpart C in connection with representation cases under section 9 (c) of the act, except that no provision is made for run-off elections. § 202.24 Procedure respecting election conducted without hearing. (a) If the Regional Director determines that the case is an appropriate one for election without formal hearing, an election is conducted as quickly as possible among the employees and upon the conclusion of the election the Regional Director fur nishes to the parties a tally of the ballots. The parties, however, have an opportunity to make appropriate challenges and objections to the conduct of the election and they have the same rights, and the same procedure is followed, with respect to objections to the conduct of the election and challenged ballots, as has already been described in Subpart C in connection with the post election procedures in representation cases under section 9 (c) of the act, except that no provision is made for a run-off election. If no such objections are filed within 5 days, and if the challenged ballots are insufficient in number to affect the results of the election, the Regional Director forwards to the Board the tally of the ballots and the Board thereupon makes appropriate disposition of the case. § 202.25 Formal hearing and procedure respecting elections conducted after hearing. (a) If the preliminary investigation indicates that there are substantial issues which require Board determination before an appropriate election may be held, the Regional Director will institute formal proceedings by issuance of a notice of hearing on the issues which, after hearing, is followed by Board decision and direction of election or dismissal. The notice of hearing, together with a copy of the petition is served upon petitioner, the employer, and upon any other known persons or labor organizations claiming to have been designated by employees involved in the proceeding. (b) The hearing, usually open to the public, is held before a hearing officer who normally is an attorney or field examiner attached to the Regional Office but may be another qualified official. The hearing, which is nonadversary in character, is part of the investigation in which the primary interest of the Board's agents is to insure that the record contains as full a statement of the pertinent facts as may be necessary for determination of the case by the Board. The parties are afforded full opportunity to present their respective positions and to produce the significant facts in support of their contentions. In most cases a substantial number of the relevant facts are undisputed and stipulated. The parties are permitted to argue orally on the record before the hearing officer.. (c) Upon the close of the hearing, the entire record in the case is then forwarded to the Board in Washington, to gether with an informal analysis by the hearing officer of the issues and the evidence but without recommendations. All parties may file briefs with the Board within 7 days after the close of the hearing and may also request to be heard orally by the Board. Because of the nature of the proceedings, however, permission to argue orally is rarely granted. After review of the entire case, the Board issues its decision either dismissing the petition or directing that an election be held. In the latter event, the election is conducted under the supervision of the Regional Director in the manner already described in § 202.18. (d) The parties have the same rights, and the same procedure is followed, with respect to objections to the conduct of the election, and challenged ballots, as has already been described in connection with the post-election procedures in cases involving consent elections to be followed by Board certifications. § 202.26 Initiation of rescission of authority cases. The investigation of the question as to whether the authority of a labor organization to make an agreement requiring membership in a labor organization as a condition of employment is rescinded is initiated by the filing of a petition by any employee or group of employees on behalf of 30 percent or more of the employees in a bargaining unit for which the labor organization has been authorized to make such an agreement. The petition, which must be notarized, is filed with the Regional Director for the area in which the alleged appropriate bargaining unit exists. The blank petition form, which is supplied by the Regional Office upon request, provides, among other things, for a description of the bargaining unit involved, the name and address of the labor organization whose authority is in issue, the approximate number of employees involved, and the approximate number of employees within the unit who have authorized petitioner to file the petition. Petitioner must supply, with the petition, or within 48 hours after filing, its evidence of authorization from the employees to seek an election. § 202.27 Investigation of petition; withdrawals and dismissals. (a) Upon receipt of the petition in the Regional Office, it is filed, docketed, and assigned to a member of the staff, usually a field examiner, for investigation. He con ducts an investigation to ascertain (1) whether the employer's operations affect commerce within the meaning of the act, (2) whether the time is appropriate for holding such an election, (3) whether an election would effectuate the policies of the act by providing for a free expression of choice by the employees, and (4) whether petitioner has been authorized by at least 30 percent of the employees to file such a petition. The evidence of designation submitted by petitioner, usually in the form of cards signed by individual employees authorizing the filing of such a petition, is checked to determine the proportion of employees who desire rescission. (b) Petitioner may on its own initiative request the withdrawal of the petition if the investigation discloses that an election is inappropriate, because, among other possible reasons, a written contract held by the labor organization whose authority petitioner desires to rescind precludes further investigation at that time, or petitioner's card showing is insufficient to meet the 30 percent statutory requirement referred to in paragraph (a) of this section. (c) The same procedure is followed with respect to the Regional Director's request for withdrawal or dismissal, as has already been described in § 202.22. § 202.28 Consent agreements; elections conducted without hearings; formal hearings and elections conducted after hearings; post election procedures. The same procedure is followed with respect to consent agreements providing for election, elections conducted without hearings, formal hearings and elections conducted after hearings and subsequent procedures as has already been described in §§ 202.23 to 202.25, inclusive. Subpart E-Jurisdictional Dispute Cases Under Section 10 (k) of the Act § 202.29 Initiation of proceedings to hear and determine jurisdictional disputes under section 10 (k). The investigation of a jurisdictional dispute under section 10 (k) is initiated by the filing of a charge, as described in § 202.2, by any person alleging a violation of paragraph (4) (D) of section 8 (b). § 202.30 Investigation of charges; withdrawal of charges; dismissal of charges and appeals to Board. These matters are handled as described in §§ 202.3 to 202.7, inclusive. Cases involving violation of paragraph (4) (D) of section 8 (b) are given priority over all other cases in the office except cases under paragraphs (4) (A), (4) (B) and (4) (C) of section 8 (b). § 202.31 Initiation of formal action; settlement. If, after investigation, it appears to the Regional Director that further proceedings should be instituted, he issues a notice of filing of the charge together with a notice of hearing which includes a simple statement of issues involved in the jurisdictional dispute and which is served on all parties to the dispute out of which the unfair labor practice is alleged to have arisen. The hearing is scheduled for not less than 10 days after service of the notice of hearing. If within 10 days after service of the notice of hearing, the parties present to the Regional Director satisfactory evidence that they have adjusted or agreed upon methods of voluntary adjustment of the dispute, the Regional Director withdraws the notice of hearing and either permits the withdrawal of the charge or dismisses the charge. The parties may agree on an arbitrator, a proceedings under section 9 (c) of the act, or any other satisfactory method to resolve the dispute. § 202.32 Hearing. If the parties have not adjusted the dispute or agreed upon methods of voluntary adjustment, a hearing, usually open to the public, is held before a hearing officer. The hearing is nonadversary in character, and the primary interest of the hearing officer is to insure that the record contains as full a statement of the pertinent facts as may be necessary for a determination of the issues by the Board. All parties are afforded full opportunity to present their respective positions and to produce evidence in support of their contentions. The parties are permitted to argue orally on the record before the hearing officer. At the close of the hearing, the case is transmitted to the Board for decision. The hearing officer prepares an analysis of the issues and the evidence but makes no recommendations in regard to resolution of the dispute. § 202.33 Procedure before the Board. The parties have 7 days after the close of the hearing to file briefs with the Board and to request oral argument which the Board may or may not grant. The Board then considers the evidence taken at the hearing and the hearing officer's analysis together with any briefs that may be filed and the oral argument, if any, and issues its certification of the labor organization or the particular trade, craft, or class of employees which shall perform the particular work tasks in issue. § 202.34 Compliance with certification; further proceedings. After the issuance of certification by the Board, the Regional Director in the region in which the proceeding arose communicates with the parties for the purpose of ascertaining their intentions in regard to compliance. Conferences may be held for the purpose of working out details. If the Regional Director is satisfied that parties are complying with the certification, he dismisses the charge. If the Regional Director is not satisfied that the parties are complying, he issues a complaint and notice of hearing, charging violation of section 8 (b), (4) (D) of the act, and the proceeding follows the procedure outlined in §§ 202.8 to 202.15. Subpart F-Procedure Under Section 10 (j) and (1) of the Act § 202.35 Application for temporary relief or restraining orders. Whenever the Regional Director deems it advisable to seek temporary injunctive relief under section 10 (j), or whenever he determines that complaint should issue alleging violation of section 8 (b) (4) (A) (B) or (C), or whenever he deems it appropriate to seek temporary injunctive relief for a violation of section 8 (b) (4) (D), the officer or Regional attorney to whom the matter has been referred will make application for appropriate temporary relief or restraining order in the District Court of the United States within which the unfair labor practice is alleged to have occurred or within which the party sought to be enjoined resides or transacts business. § 202.36 Change of circumstances. Whenever a temporary injunction has been obtained pursuant to section 10 (j) and thereafter the trial examiner hearing the complaint, upon which the determination to seek such injunction was predicated, recommends dismissal of such complaint, in whole or in part, the officer or Regional attorney handling the case for the Board suggests to the District Court which issued the temporary injunction the possible change in circumstances arising out of the findings 203.60 Proceedings before the Board; further hearing; briefs; Board direction of election; certification of results. 203.61 Election procedure; tally of the ballots; objections; report on challenged ballots; report on objections; exceptions; action of the Board; hearing. 203.62 Run-off election. 203.63 Refusal to issue notice of hearing; appeals to Board from action of the Regional Director. 203.64 Filing petition with General Counsel; investigation upon motion of General Counsel; transfer of petition and proceeding from region to General Counsel or to another region; consolidation of proceedings in same region; severance; procedure before General Counsel in cases over which he has assumed jurisdiction. Subpart D-Procedure for Referendum Under Section 9 (e) of the Act 203.65 Petition for referendum under section 9 (e) (1) of act; who may file; where to file; withdrawal. 203.66 Contents of petition. 203.67 Investigation of petition by Regional Director; consent referendum; directed referendum. 203.68 Hearing; post-hearing procedure. 203.69 Method of conducting balloting; post-balloting procedure. 203.70 Refusal to conduct referendum; appeal to Board. 203.71 Petition for referendum under section 9 (e) (2) of the act; who may file; where to file; withdrawal. 203.72 Contents of petition to rescind authority. 203.73 Subsequent proceedings under sec tion 9 (e) (2). Subpart E-Procedure to Hear and Determine Disputes Under Section 10 (k) of the Act Subpart G-Service of Papers 203.83' Service of process and papers; proof of service. 203.84 Same; by parties; proof of service. Subpart H-Certification and Signature of Documents 203.87 Certification of papers and documents. 203.88 Signatures of orders. Subpart I-Records and Information 203.89 Files, records, etc., in exclusive custody of Board and not subject to inspection; formal documents and final opinions and orders subject to inspection. 203.90 Same; Board employees prohibited from producing files, records, etc., pursuant to subpena duces tecum, prohibited from testifying in regard thereto. Subpart J-Practice Before the Board of Former Employees 203.91 Prohibition of practice before Board of its former Regional employees in cases pending in region during employment. 203.92 Same; application to former employees of Washington staff. Subpart K-Construction of Rules 203.93 Rules to be liberally construed. Subpart L-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 203.74 Initiation of proceedings; notice of filing charge; notice of hearing. |