5 C.F.R. Subpart C—Hearing Procedures
Title 5 - Administrative Personnel
(a) Open hearing. The hearing shall be open to the public unless otherwise ordered by the Administrative Law Judge. (b) Administrative Procedure Act. The hearing shall, to the extent practicable, be conducted in accordance with 5 U.S.C. 554–557, and other applicable provisions of the Administrative Procedure Act. (c) Rights of parties. A party shall have the right to appear at any hearing in person, by counsel, or by other representative; to examine and cross-examine witnesses; to introduce into the record documentary or other relevant evidence; and to submit rebuttal evidence, except that the participation of any party shall be limited to the extent prescribed by the Administrative Law Judge. (d) Objections. Objections are oral or written complaints concerning the conduct of a hearing. Any objection not raised to the Administrative Law Judge shall be deemed waived. (e) Oral argument. 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. (f) Official transcript. An official reporter shall make the only official transcript of such proceedings. Copies of the transcript may be examined in the appropriate Regional Office during normal working hours. Parties desiring a copy of the transcript shall make arrangements for a copy with the official hearing reporter. (a) Conduct of hearing. The Administrative Law Judge shall conduct the hearing in a fair, impartial, and judicial manner, taking action as needed to avoid unnecessary delay and maintain order during the proceedings. The Administrative Law Judge may take any action necessary to schedule, conduct, continue, control, and regulate the hearing, including ruling on motions and taking official notice of material facts when appropriate. No provision of these regulations shall be construed to limit the powers of the Administrative Law Judge provided by 5 U.S.C. 556, 557, and other applicable provisions of the Administrative Procedure Act. (b) Evidence. The Administrative Law Judge shall receive evidence and inquire fully into the relevant and material facts concerning the matters that are the subject of the hearing. The Administrative Law Judge may exclude any evidence that is immaterial, irrelevant, unduly repetitious, or customarily privileged. Rules of evidence shall not be strictly followed. (c) Interlocutory appeals. Motions for an interlocutory appeal shall be filed in writing with the Administrative Law Judge within 5 days after the date of the contested ruling. The motion shall state why interlocutory review is appropriate, and why the Authority should modify or reverse the contested ruling. (1) The Judge shall grant the motion and certify the contested ruling to the Authority if: (i) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and (ii) Immediate review will materially advance completion of the proceeding, or the denial of immediate review will cause undue harm to a party or the public. (2) If the motion is granted, the Judge or Authority may stay the hearing during the pendency of the appeal. If the motion is denied, exceptions to the contested ruling may be filed in accordance with §2423.40 of this subchapter after the Judge issues a decision and recommended order in the case. (d) Bench decisions. Upon joint motion of the parties, the Administrative Law Judge may issue an oral decision at the close of the hearing when, in the Judge's discretion, the nature of the case so warrants. By so moving, the parties waive their right to file posthearing briefs with the Administrative Law Judge, pursuant to §2423.33. If the decision is announced orally, it shall satisfy the requirements of §2423.34(a)(1)–(5) and a copy thereof, excerpted from the transcript, together with any supplementary matter the judge may deem necessary to complete the decision, shall be transmitted to the Authority, in accordance with §2423.34(b), and furnished to the parties in accordance with §2429.12 of this subchapter. (e) Settlements after the opening of the hearing. As set forth in §2423.25(a), settlements may be either informal or formal. (1) Informal settlement procedure: Judge's approval of withdrawal. If the Charging Party and the Respondent enter into an informal settlement agreement that is accepted by the Regional Director, the Regional Director may request the Administrative Law Judge for permission to withdraw the complaint and, having been granted such permission, shall withdraw the complaint and approve the informal settlement between the Charging Party and Respondent. If the Charging Party fails or refuses to become a party to an informal settlement agreement offered by the Respondent, and the Regional Director concludes that the offered settlement will effectuate the policies of the Federal Service Labor-Management Relations Statute, the Regional Director shall enter into the agreement with the Respondent and shall, if granted permission by the Administrative Law Judge, withdraw the complaint. The Charging Party then may obtain a review of the Regional Director's decision as provided in subpart A of this part. (2) Formal settlement procedure: Judge's approval of settlement. If the Charging Party and the Respondent enter into a formal settlement agreement that is accepted by the Regional Director, the Regional Director may request the Administrative Law Judge to approve such formal settlement agreement, and upon such approval, to transmit the agreement to the Authority for approval. If the Charging Party fails or refuses to become a party to a formal settlement agreement offered by the Respondent, and the Regional Director concludes that the offered settlement will effectuate the policies of the Federal Service Labor-Management Relations Statute, the agreement shall be between the Respondent and the Regional Director. After the Charging Party is given an opportunity to state on the record or in writing the reasons for opposing the formal settlement, the Regional Director may request the Administrative Law Judge to approve such formal settlement agreement, and upon such approval, to transmit the agreement to the Authority for approval. The General Counsel shall present the evidence in support of the complaint and have the burden of proving the allegations of the complaint by a preponderance of the evidence. The Respondent shall have the burden of proving any affirmative defenses that it raises to the allegations in the complaint. Except when bench decisions are issued pursuant to §2423.31(d), posthearing briefs may be filed with the Administrative Law Judge within a time period set by the Judge, not to exceed 30 days from the close of the hearing, unless otherwise directed by the judge, and shall satisfy the filing and service requirements of part 2429 of this subchapter. Reply briefs shall not be filed absent permission of the Judge. Motions to extend the filing deadline or for permission to file a reply brief shall be filed in accordance with §2423.21. (a) Recommended decision. Except when bench decisions are issued pursuant to §2423.31(d), the Administrative Law Judge shall prepare a written decision expeditiously in every case. All written decisions shall be served in accordance with §2429.12 of this subchapter. The decision shall set forth: (1) A statement of the issues; (2) Relevant findings of fact; (3) Conclusions of law and reasons therefor; (4) Credibility determinations as necessary; and (5) A recommended disposition or order. (b) Transmittal to Authority. The Judge shall transmit the decision and record to the Authority. The record shall include the charge, complaint, service sheet, answer, motions, rulings, orders, prehearing conference summaries, stipulations, objections, depositions, interrogatories, exhibits, documentary evidence, basis for any sanctions ruling, official transcript of the hearing, briefs, and any other filings or submissions made by the parties.
Title 5: Administrative Personnel
PART 2423—UNFAIR LABOR PRACTICE PROCEEDINGS
Subpart C—Hearing Procedures
§ 2423.30 General rules.
§ 2423.31 Powers and duties of the Administrative Law Judge at the hearing.
§ 2423.32 Burden of proof before the Administrative Law Judge.
§ 2423.33 Posthearing briefs.
§ 2423.34 Decision and record.
§§ 2423.35-2423.39 [Reserved]
