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TITLE 29.-LABOR, APPENDIX

RULES AND REGULATIONS

SERIES 5

IMPLEMENTING

NATIONAL LABOR RELATIONS ACTAmended by

LABOR MANAGEMENT RELATIONS ACT, 1947Effective August 22, 1947 (13 F. R. 5656)

Amended to December 2, 1949

GENERAL RULES AND REGULATIONS

By virtue of the authority vested in it by theNational Labor Relations Act, 49 Stat. 449, as amend-ed by the Labor Management Relations Act, 1947,Public Law 101-80th Congress, 1st Session, theNational Labor Relations Board has issued andcaused to be published in the Federal Register si-multaneously herewith, its Rules and Regulations-Series 5, which it has found necessary, as providedin Section 6 of the National Labor Relations Act, tocarry out the provisions of that Act. These Rulesand Regulations state the general Rules of Procedurefollowed by the Board in administering its functions.The following statements of the general course andmethod by which the Board's functions are chan-neled and determined, issued and published as pro-vided in Section 3 (a) (2) of the AdministrativeProcedure Act, amplify and supplement these Rulesof Procedure.

SUBPART A.-DEFINITIONS

§ 102.1. Terms defined in Section 2 of the Act.The terms "person," "employer," "employee," "rep-

resentative," "labor organization," "commerce," "af-fecting commerce," and "unfair labor practice," asused herein, shall have the meanings set forth InSection 2 of the National Labor Relations Act, asamended by Title I of the Labor Management Re-lations Act, 1947. (As amended Jan. 6, 1949, 14F. R. 78.)

§ 102.2. Act, Board, Board Agent.The term "Act" as used herein shall mean the

National Labor Relations Act, as amended. The term"Board" shall mean the National Labor RelationsBoard, and shall include any group of three or moremembers designated pursuant to Section 3 (b) of theAct. The term "Board Agent" shall mean any mem-ber, agent or agency of the Board, including itsGeneral Counsel. (As amended Jan. 6, 1949, 14F. R. 78)

§ 102.3. General Counsel.The term "General Counsel" as used herein shall

mean the General Counsel under Section 3 (d) ofthe Act (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.4. Region.The term "Region" as used herein shall mean that

part of the United States or any Territory thereoffixed by the Board as a particular Region. (As

amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.5. Regional Director, Regional Attorney.The term "Regional Director" as used herein shall

mean the agent designated by the Board as RegionalDirector for a particular Region. The term "Re-gional Attorney" as used herein shall mean the attor-ney designated by the Board as Regional Attorney

for a particular Region. (As amended Jan. 6, 1949,14 F. R. 78.)

§ 102.6. Trial Examiner, Hearing Officer.The term "Trial Examiner" as used herein shall

mean the agent of the Board conducting the hear-ing in an unfair labor practice or Telegraph MergerAct proceeding. The term "Hearing Officer" as usedherein shall mean the agent of the Board conductingthe hearing in a proceeding under Section 9 or in adispute proceeding under Section 10 (k) of the Act.(As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.7. State.The term "State" as used herein shall include the

District of Columbia and all States, Territories, and

possessions of the United States. (As amended Jan.6, 1949, 14 F. R. 78.)

§ 102.8. Party.The term "Party" as used herein shall mean the

Regional Director in whose Region the proceedingis pending, and any person named or admitted asa party, or properly seeking and entitled as of rightto be admitted as a party, in any Board proceeding,including, without limitation, any person filing acharge or petition under the Act, any person namedas respondent, as employer, or as party to a contractin any proceeding under the Act, and any labororganization alleged to be dominated, assisted, orsupported in violation of Section 8 (a) (1) or 8 (a)(2) of the Act; but nothing herein shall be con-strued to prevent the Board or its designated agentfrom limiting any party to participate in the pro-ceedings to the extent of his interest only. (Asamended Jan. 6, 1949, 14 F. R. 78.)

SUBPART B. PROCEDURE UNDER SECTION 10OF THE ACT FOR THE PREVENTION OF UN-FAIR LABOR PRACTICES'

CHARGE

§ 102.9. Who may file; withdrawal and dismissal.A charge that any person has engaged in or is

engaging in any unfair labor practice affecting com-

'Procedure under Section 10 (J) to (1) of the Act isgoverned by Subparts E and F of these Rules and Regula-tions.

164


merce may be made by any person, Provided, That

if such charge is filed by a labor organization, nocomplaint will be issued pursuant thereto, unless

such labor organization is in compliance with the

requirements of section 9 (f) (g) and (h) of the act,

within the meaning of § 102.13. Any such charge

may be withdrawn, prior to the hearing, only with

the consent of the Regional Director with whom such

charge was filed; at the hearing and until the case

has been transferred to the Board pursuant to Sec-

tion 102.45, upon motion, with the consent of the

Trial Examiner designated to conduct the hearing;

and after the case has been transferred to the Board

pursuant to Section 102.45, upon motion, with the

consent of the Board. Upon withdrawal of any

charge, any complaint based thereon shall be dis-

missed by the Regional Director issuing the com-plaint, the Trial Examiner designated to conduct the

hearing, or the Board. (As amended Jan. 6, 1949,14 F. R. 78.)

§ 102.10. Where to file.

Except as provided in Section 102.33, such charge

shall be filed with the Regional Director for the Re-gion in which the alleged unfair labor practice hasoccurred or is occurring. A charge alleging that an

unfair labor practice has occurred or is occurring intwo or more Regions may be filed with the RegionalDirector for any of such Regions. (As amended

Jan. 6, 1949, 14 F. R. 78.)

§ 102.11. Forms; jurat or declaration.Such charge shall be in writing and signed, and

shall either be sworn to before a notary public,Board agent, or other person duly authorized bylaw to administer oaths and take acknowledgments,or shall contain a declaration by the person signingit, under the penalties of the Criminal Code, thatits contents are true and correct to the best of hisknowledge and belief. Four additional copies of suchcharge shall be filed.' (As amended Jan. 6, 1949, 14F. R. 78.)

§ 102.12. Contents.Such charge shall contain the following:(a) The full name and address of the person mak-

ing the charge.(b) If the charge is filed by a labor organization,

the full name and address of any national or inter-national labor organization of which it is an affiliateor constituent unit.

(c) The full name and address of the person

against whom the charge is made (hereinafter re-ferred to as the "respondent").

(d) A clear and concise statement of the factsconstituting the alleged unfair labor practices affect-ing commerce. (As amended Jan. 6, 1949, 14 F. R.78.)

§ 102.13. Compliance with Section 9 (f), (g), and(h) of the Act.

(a) For the purpose of the regulations in this part,compliance with section 9 (f) and (g) of the actmeans (1) that the Secretary of Labor has issued to

2 A blank form for making a charge will be supplied bythe Regional Director upon request.

the labor organization, pursuant to the rules of theDepartment of Labor, a letter showing that the labororganization has filed the material required undersection 9 (f) and (g) of the act; (2) that the labororganization has filed with the regional director,either as part of the charge (or petition) or other-

wise, the duplicate copy of such compliance letter,and (3) that the labor organization has filed with the

regional director for the region in which the pro-ceeding is pending or in which it customarily filescases, either as part of the charge (or petition) or

otherwise, a declaration executed by an authorizedagent stating that the labor organization has com-plied with section 9 (f) (B) (2) of the act requiring

that it furnish to all its members copies of thefinancial report filed with the Department of Labor,and setting forth the method by which such com-pliance was made.

(b) For the purpose of the regulations in this

part, compliance with section 9 (h) of the act means(1) in the case of a national or international labororganization, that it has filed with the general coun-

sel in Washington, D. C., and (2) in the case of alocal labor organization, that any national or inter-national labor organization of which it is an affiliate

or constituent body has filed with the generalcounsel in Washington, D. C., and that the labor

organization has filed with the regional director inthe region in which the proceeding is pending:

(1) A declaration by an authorized representativeof the labor organization, executed contemporane-ously with the charge (or petition) or within thepreceding 12-month period, listing the titles of all

offices of the filing organization and stating thename of the incumbent, if any, in each such officeand the date of expiration of each incumbent's term.

(2) An affidavit by each officer referred to in sub-

paragraph (1) of this paragraph, executed contem-poraneously with the charge (or petition) or within

the preceding 12-month period, stating that he isnot a member of the Communist Party or affiliatedwith such party, and that he does not believe in, andis not a member of or supports any organization thatbelieves in or teaches, the overthrow of the United

States Government by force or by any illegal or un-constitutional methods.

(c) The term "officer" as used in paragraph (b)of this section shall mean any person occupying aposition identified as an office in the constitution ofthe labor organization; except, however, that where

the Board has reasonable cause to believe that a labororganization has omitted from its constitution the

designation of any position as an office for the pur-

pose of evading or circumventing the filing require-ments of section 9 (h) of the act, the Board may,upon appropriate notice, conduct an investigationto determine the facts in that regard, and wherethe facts appear to warrant such action the Boardmay require affidavits from persons other than in-cumbents of positions identified by the constitutionas offices before the labor organization will be recog-nized as having complied with section 9 (h) of the

act. (As amended Jan. 6, 1949, 14 F. R. 78; Dec. 2,1949, 14 F. R. 7250.)

§ 102.13Page 1165


§ 102.14. Service of charge.

Upon the filing of a charge, the charging partyshall be responsible for the timely and proper serviceof a copy thereof upon the person against whom suchcharge is made. The Regional Director will as amatter of course, cause a copy of such charge to beserved upon the person against whom the charge ismade, but he shall not be deemed to assume respon-sibility for such service. (As amended Jan. 6, 1949,14 F. R. 78.)

COMPLAINT

§ 102.15. When and by whom issued; contents; service.

After a charge has been filed, if it appears to theRegional Director that formal proceedings in respectthereto should be instituted, he shall issue and causeto be served upon all the other parties a formal com-plaint in the name of the Board stating the chargesand containing a Notice of Hearing before a TrialExaminer at a place therein fixed and at a time notless than 10 days after the service of the complaint.(As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.16. Hearing; extension.

Upon his own motion or upon proper cause shownby any other party, the Regional Director issuing thecomplaint may extend the date of such hearing. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.17. Amendment.

Any such complaint may be amended upon suchterms as may be deemed just, prior to the hearing,by the Regional Director issuing the complaint; atthe hearing and until the case has been transferredto the Board pursuant to Section 102.45, upon mo-tion, by the Trial Examiner designated to conductthe hearing; and after the case has been transferredto the Board pursuant to Section 102.45, at any timeprior to the issuance of an order based thereon, uponmotion, by the Board. (As amended Jan. 6, 1949,14 F. R. 78.)

§ 102.18. Withdrawal.

Any such complaint may be withdrawn before thehearing by the Regional Director on his own motion.(As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.19. Review by the General Counsel of refusal to

issue.

If, after the charge has been filed, the RegionalDirector declines to issue a complaint, he shall soadvise the parties in writing, accompanied by asimple statement of the procedural or other grounds.The person making the charge may obtain a reviewof such action by filing a request therefor with theGeneral Counsel in Washington, D. C., and filing acopy of the request with the Regional Director, with-in 10 days from the service of the notice of suchrefusal by the Regional Director. The request shallcontain a complete statement setting forth the factsand reasons upon which the request is based. (Asamended Jan. 6, 1949, 14 F. R. 78.)

ANSWER

§ 102.20. Answer to complaint; time for filing; con-tents; allegations not denied deemed admitted.

The respondent shall, within 10 days from theservice of the complaint, file an answer thereto.Such answer shall contain a short and simple state-ment of the facts which constitute the grounds ofdefense. The respondent shall specifically admit,deny, or explain each of the facts alleged in thecomplaint, unless the respondent is without knowl-edge, in which case the respondent shall so state,such statement operating as a denial. All allega-tions in the complaint, if no answer is filed, or anyallegation in the complaint not specifically deniedor explained in an answer filed, unless the respond-ent shall state in the answer that he is withoutknowledge, shall be deemed to be admitted to betrue and may be so found by the Board. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.21. Where to file; service upon the parties; form;jurat.

An original and four copies of the answer shallbe filed with the Regional Director issuing the com-plaint. Immediately upon the filing of his answer,respondent shall serve a copy thereof on each ofthe other parties. The answer shall be in writing,the original being signed and sworn to by the re-spondent or by a duly authorized agent with appro-priate power of attorney affirmed, and shall containthe post-office address of the respondent. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.22. Extension of time for filing.Upon his own motion or upon proper cause shown

by any other party the Regional Director issuingthe complaint may by written order extend the timewithin which the answer shall be filed. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.23. Amendment.The respondent may amend his answer at any time

prior to the hearing. During the hearing or subse-quent thereto, he may amend his answer in any casewhere the complaint has been amended, within suchperiod as may be fixed by the Trial Examiner or theBoard. Whether or not the complaint has beenamended, the answer may, in the discretion of theTrial Examiner or the Board, upon motion, beamended upon such terms and within such periodsas may be fixed by the Trial Examiner or the Board.(As amended Jan. 6, 1949, 14 F. R. 78.)

MOTIONS

§ 102.24. Motions; where to file prior to hearing andduring hearing; contents; service on other parties.

All motions made prior to the hearing shall be filedin writing with the Regional Director issuing thecomplaint, and shall briefly state the order or reliefapplied for and the grounds for such motion. Themoving party shall file an original and four copiesof all such motions and immediately serve a copythereof upon each of the other parties. All motionsmade at the hearing shall be made in writing to theTrial Examiner or stated orally on the record. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.14 Page 1166


§ 102.25. Ruling on motions; where to file motions af-ter hearing and before transfer of case to Board.

The Trial Examiner designated to conduct thehearing shall rule upon all motions (except as pro-

vided in Sections 102.16, 102.22, 102.29, and 102.47).

The Trial Examiner may, before the hearing, rule

on motions filed prior to the hearing, and shall causecopies of his ruling to be served upon all the parties.All motions filed subsequent to the hearing, but be-fore the transfer of the case to the Board pursuant

to Section 102.45, shall be filed with the Trial Exam-iner, care of the Chief Trial Examiner, in Washing-ton, D. C., and a copy thereof shall be served oneach of the parties. Rulings by the Trial Examineron motions, and any orders in connection therewith,if announced at the hearing, shall be stated orally

on the record; in all other cases such rulings andorders shall be issued in writing. The Trial Exam-iner shall cause a copy of the same to be served uponeach of the other parties, or shall make his ruling inthe Intermediate Report. Whenever the Trial Ex-aminer has reserved his ruling on any motion, andthe proceeding is thereafter transferred to and con-tinued before the Board pursuant to Section 102.50,the Board shall rule on such motion. (As amendedJan. 6, 1949, 14 F. R. 78.)

§ 102.26. Motions; rulings and orders part of the rec-ord; rulings not to be appealed directly to Boardwithout special permission; requests for specialpermission to appeal.

All motions, rulings, and orders shall become partof the record, except that rulings on motions to re-voke subpenas shall become a part of the recordonly upon the request of the party aggrieved thereby,as provided in Section 102.31. Unless expressly au-thorized by the Rules and Regulations, rulings bythe Regional Director and by the Trial Examineron motions, by the Trial Examiner on objections,and orders in connection therewith, shall not beappealed directly to the Board except by specialpermission of the Board, but shall be considered bythe Board in reviewing the record, if exception tothe ruling or order is included in the statement ofexceptions filed with the Board, pursuant to Sec-tion 102.46. Requests to the Board for special per-mission to appeal from such rulings of the regionaldirector or the trial examiner shall be filed promptly,in writing, and shall briefly state the grounds reliedon. The moving party shall immediately serve a

copy thereof on each other party. (As amendedJan. 6, 1949, 14 F. R. 78.)

§ 102.27. Review of granting of motion to dismiss en-tire complaint; reopening of record.

If any motion in the nature of a motion to dismissthe complaint in its entirety is granted by the TrialExaminer before filing his Intermediate Report, anyparty may obtain a review of such action by filinga request therefor with the Board in Washington,D. C., stating the grounds for review, and imme-diately on such filing shall serve a copy thereof onthe Regional Director and the other parties. Unlesssuch request for review is filed within 10 days fromthe date of the order of dismissal, the case shall beclosed. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.28. Filing of answer or other participation inproceedings not a waiver of rights.

The right to make motions or to make objectionto rulings upon motions shall not be deemed waivedby the filing of an answer or by other participationin the proceedings before the Trial Examiner or

the Board. (As amended Jan. 6, 1949, 14 F. R. 78)INTERVENTION

§ 102.29. Intervention; requisites; rulings on motionsto intervene.

Any person desiring to intervene in any proceed-ing shall file a motion in writing or, if made at thehearing, may move orally on the record, stating thegrounds upon which such person claims an interest.

Prior to the hearing, such motion shall be filed withthe Regional Director issuing the complaint; duringthe hearing such motion shall be made to the TrialExaminer. An original and four copies of writtenmotions shall be filed. Immediately upon filing suchmotion, the moving party shall serve a copy thereofupon each of the other parties. The Regional Di-rector shall rule upon all such motions filed priorto the hearing, and shall cause a copy of said rulingto be served upon each of the other parties, or mayrefer the motion to the Trial Examiner for ruling.The Trial Examiner shall rule upon all such mo-tions made at the hearing or referred to him by theRegional Director, in the manner set forth In Section102.25. The Regional Director or the Trial Ex-

aminer, as the case may be, may by order permitintervention in person or by counsel or other repre-sentative to such extent and upon such terms ashe may deem proper. (As amended Jan. 6, 1949,14 PF. R. 78.)

WITNESSEs, DEPOSMONS, AND SUBPENAS

§ 102.30. Examination of witnesses; depositions.

Witnesses shall be examined orally under oath,except that for good cause shown after the issuanceof a complaint, testimony may be taken by deposi-tion.

(a) Applications to take depositions shall be inwriting setting forth the reasons why such deposi-tions should be taken, the name and post-office ad-dress of the witness, the matters concerning whichit is expected the witness will testify, and the timeand place proposed for the taking of the deposition,together with the name and address of the personbefore whom it is desired that the deposition betaken (for the purposes of this Section hereinafterreferred to as the "officer"). Such application shallbe made to the Regional Director prior to the hear-ing, and to the Trial Examiner during and subse-quent to the hearing but before transfer of the caseto the Board pursuant to Section 10Z.45 or 102.50.Such application shall be served upon the RegionalDirector or the Trial Examiner, as the case may be,and upon all other parties, not less than 7 days(when the deposition is to be taken within the con-tinental United States) and 15 days (if the deposi-tion is to be taken elsewhere) prior to the time whenit is desired that the deposition be taken. TheRegional Director or Trial Examiner, as the casemay be, shall upon receipt of the application, if in

§ 102.30Page 1167


his discretion good cause has been shown, make andserve upon the parties an order which will specifythe name of the witness whose deposition is to betaken and the time, the place, and the designationof the officer before whom the witness is to testify,who may or may not be the same officer as thatspecified in the application. Such order shall beserved upon all the other parties by the RegionalDirector or upon all parties by the Trial Examiner.

(b) Such deposition may be taken before any offi-cer authorized to administer oaths by the laws ofthe United States or of the place where the examina-tion is held, including any agent of the Board au-thorized to administer oaths. If the examinationis held in a foreign country, it may be taken beforeany Secretary or Embassy or Legation, Consul Gen-eral, Consul, Vice Consul, or Consular Agent of theUnited States.

(c) At the time and place specified in said orderthe officer designated to take such deposition shallpermit the witness to be examined and cross-exam-ined under oath by all the parties appearing, andhis testimony shall be reduced to typewriting by theofficer or under his direction. All objections to ques-tions or evidence shall be deemed waived unless madeat the examination. The officer shall not have powerto rule upon any objections but he shall note themupon the deposition. The testimony shall be sub-scribed by the witness in the presence of the officerwho shall attach his certificate stating that the wit-ness was duly sworn by him, that the deposition isa true record of the testimony and exhibits given bythe witness and that said officer is not of counsel orattorney to any of the parties nor interested in theevent of the proceeding or investigation. If the dep-osition is not signed by the witness because he is ill,dead, cannot be found, or refuses to sign it, such factshall be included in the certificate of the officer andthe deposition may then be used as fully as thoughsigned. The officer shall immediately deliver anoriginal and two copies of said transcript, togetherwith his certificate, in person or by registered mailto the Regional Director or the Trial Examiner, careof the Chief Trial Examiner, in Washington, D. C.,as the case may be.

(d) The Trial Examiner shall rule upon the ad-missibility of the deposition or any part thereof.

(e) All errors or irregularities in compliance withthe provisions of this Section shall be deemed waivedunless a motion to suppress the deposition or somepart thereof is made with reasonable promptnessafter such defect is or, with due diligence, mighthave been ascertained.

(f) If the parties so stipulate in writing, deposi-tions may be taken before any person at any timeor place, upon any notice and in any manner, andwhen so taken may be used like other depositions.(As amended Jan. 6, 1949, 14 F. R. 78.)§ 102.31. Issuance of subpenas; petitions to revoke

subpenas; right to inspect or copy data.

(a) Any member of the Board shall, on the writtenapplication of any party, forthwith issue subpenasrequiring the attendance and testimony of witnesses

and the production of any evidence, including books,records, correspondence, or documents, in their pos-session or under their control. Applications for sub-penas, if filed prior to the hearing, shall be filed withthe Regional Director. Applications for subpenasfiled during the hearing shall be filed with the TrialExaminer. Applications for subpenas may be madeex parte. The subpena shall show on its face thename and address of the party at whose request thesubpena was issued.

(b) Any person subpenaed, if he does not intendto comply with the subpena, shall, within 5 days afterthe date of service of the subpena upon him, petitionin writing to revoke the subpena. All petitions torevoke subpenas shall be served upon the party atwhose request the subpena was issued. Such peti-tion to revoke, if made prior to the hearing, shall befiled with the Regional Director and the RegionalDirector shall refer the petition to the Trial Exam-iner or the Board for ruling. Petitions to revokesubpenas filed during the hearing shall be filed withthe Trial Examiner. Notice of the filing of petitionsto revoke shall be promptly given by the RegionalDirector or the Trial Examiner, as the case may be,to the party at whose request the subpena was issued.The Trial Examiner or the Board, as the case may be,shall revoke the subpena if in its opinion the evidencewhose production is required does not relate to anymatter under investigation or in question in the pro-ceedings or the subpena does not describe with suffi-cient particularity the evidence whose production isrequired. The Trial Examiner or the Board, as thecase may be, shall make a simple statement of pro-cedural or other grounds for the ruling on the peti-tion to revoke. The petition to revoke, any answerfiled thereto, and any ruling thereon, shall not be-come part of the official record except upon therequest of the party aggrieved by the ruling.

(c) Persons compelled to submit data or evidenceat a public proceeding are entitled to retain or, onpayment of lawfully prescribed costs, to procure,copies or transcripts of the data or evidence submit-ted by them. Persons compelled to submit data orevidence in the non-public investigative stages ofproceedings may, for good cause, be limited by theRegional Director to inspection of the official tran-script of their testimony, but shall be entitled tomake copies of documentary evidence or exhibitswhich they have produced.

(d) Upon the failure of any person to complywith a subpena issued upon the request of a privateparty, the General Counsel shall in the name of theBoard but on relation of such private party, instituteproceedings in the appropriate District Court for theenforcement of such subpena, but neither the Gen-eral Counsel nor the Board shall be deemed therebyto have assumed responsibility for the effective prose-cution of the same before the Court. (As amendedJan. 6, 1949, 14 F. R. 78.)

§ 102.32. Payment of witness fees and mileage; fees ofpersons taking depositions.

Witnesses summoned before the Trial Examinershall be paid the same fees and mileage that are paid

§ 102.31 - Page 1168


witnesses In the courts of the United States, and wit-nesses whose depositions are taken and the personstaking the same shall severally be entitled to thesame fees as are paid for like services in the courts ofthe United States. Witness fees and mileage shallbe paid by the party at whose instance the witnessesappear and the person taking the deposition shall bepaid by the party at whose instance the deposition istaken. (As amended Jan. 6, 1949, 14 F. R. 78.)

TRANSFER, CONSOLIDATION AND SEVERANCE

§ 102.33. Transfer of charge and proceeding from Re-gion to Region; consolidation of proceedings insame Region; severance.

Whenever the General Counsel deems it necessaryin order to effectuate the purposes of the Act or toavoid unnecessary costs or delay, he may permit acharge to be filed with him in Washington, D. C., ormay, at any time after a charge has been filed witha Regional Director pursuant to Section 102.10, orderthat such charge and any proceeding which mayhave been initiated with respect thereto-

(a) be transferred to and continued before him forthe purpose of investigation or consolidation withany other proceeding which may have been institutedIn a Regional Office or with him; or

(b) be consolidated with any other proceedingwhich may have been Instituted in the same Region;or

(c) be transferred to and continued in any otherRegion for the purpose of investigation or consolida-tion with any proceeding which may have been insti-tuted in or transferred to such other Region.

The provisions of Sections 102.9 to 102.32, inclu-sive, shall, insofar as applicable, govern proceedingsbefore the General Counsel pursuant to this Section,and the powers granted to Regional Directors in suchprovisions shall for the purpose of this Section, bereserved to and exercised by the General Counsel.After the transfer of any charge and any proceedingwhich may have been instituted with respect theretofrom one Region to another pursuant to this Section,the provisions of this Sub-part shall, insofar as ap-plicable, govern such charge and such proceeding asif the charge had originally been filed in the Regionto which the transfer is made.

Motions to sever proceedings may be filed beforehearing, with the Regional Director, and during thehearing, with the Trial Examiner. The RegionalDirector shall refer all such motions filed with himto the Trial Examiner for ruling. Rulings by theTrial Examiner on motions to sever may be appealedto the Board in accordance with Section 102.26 ofthese Rules and Regulations. (As amended Jan. 6,1949, 14 F. R. 78.)

HEARINGS

§ 102.34. Who shall conduct; to be public unless other-wise ordered.

The hearing for the purpose of taking evidenceupon a complaint shall be conducted by a Trial Ex-aminer designated by the Chief Trial Examiner,unless the Board or any member thereof presides.At any time a Trial Examiner may be designated totake the place of the Trial Examiner previously

designated to conduct the hearing. Such hearingsshall be public unless otherwise ordered by the Boardor the Trial Examiner. (As amended Jan. 6, 1949,14 F. R. 78.)

§ 102.35. Duties and Powers of Trial Examiners.

It shall be the duty of the Trial Examiner to In-quire fully into the facts as to whether the respond-ent has engaged in or is engaging in an unfair laborpractice affecting commerce as set forth in the com-plaint or amended complaint. The Trial Examinershall have authority, with respect to cases assignedto him, between the time he is designated and trans-fer of the case to the Board, subject to the Rulesand Regulations of the Board and within its powers:

(1) To administer oaths and affirmations;(2) To grant applications for subpenas;(3) To rule upon petitions to revoke subpenas;(4) To rule upon offers of proof and receive rele-

vant evidence;(5) To take or cause depositions to be taken when-

ever the ends of justice would be served thereby;(6) To regulate the course of the hearing and, if

appropriate or necessary, to exclude persons or coun-sel from the hearing for contemptuous conduct andto strike all related testimony of witnesses refusingto answer any proper question;

(7) To hold conferences for the settlement or sim-plification of the issues by consent of the parties,but not to adjust cases;

(8) To dispose of procedural requests or similarmatters, including motions referred to the TrialExaminer by the Regional Director and motions toamend pleadings; also to dismiss complaints or por-tions thereof, and to order hearings reopened priorto issuance of Intermediate Reports (recommendeddecisions) ;

(9) To make and file Intermediate Reports inconformity with Section 8 of the AdministrativeProcedure Act;

(10) To call, examine and cross-examine wit-nesses, and to introduce Into the record documentaryor other evidence;

(11) To take any other action necessary under theforegoing and authorized by the published Rulesand Regulations of the Board. (As amended Jan. 6,1949, 14 F. R. 78.)

§ 102.36. Unavailability of Trial Examiners.

In the event the Trial Examiner designated toconduct the hearing becomes unavailable to theBoard after the hearing has been concluded andbefore the filing of his Intermediate Report, theBoard may transfer the case to Itself for purposesof further hearing or issuance of an IntermediateReport or both on the record as made, or may re-quest the Chief Trial Examiner to designate anotherTrial Examiner for such purposes. (As amendedJan. 6, 1949, 14 F. R. 78.)

§ 102.37. Disqualification of Trial Examiners.

A Trial Examiner may withdraw from a proceed-ing whenever he deems himself disqualified. Anyparty may request the Trial Examiner, at any timefollowing his designation by the Chief Trial Exam-

Page 1169 § 102.37


iner and before filing of his Intermediate Report, towithdraw on grounds of personal bias or disquali-fication, by filing with him promptly upon the dis-covery of the alleged facts a timely affidavit settingforth in detail the matters alleged to constitutegrounds for disqualification. If, in the opinion ofthe Trial Examiner, such affidavit is filed with duediligence and is sufficient on its face, he shall forth-with disqualify himself and withdraw from the pro-ceeding. If the Trial Examiner does not disqualifyhimself and withdraw from the proceeding, he shallso rule upon the record, stating the grounds for hisruling and proceed with the hearing, or if the hear-ing has closed, he shall proceed with issuance of hisIntermediate Report, and the provisions of Section102.26 of these Rules and Regulations, with respectto review of rulings of Trial Examiners, shall there-upon apply. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.38. Rights of parties.

Any party shall have the right to appear at suchhearing in person, by counsel, or by other repre-sentative, to call, examine and cross-examine wit-nesses, and to introduce into the record documentaryor other evidence, except that the participation ofany party shall be limited to the extent permittedby the Trial Examiner. (As amended Jan. 6, 1949,14 F. R. 78.)

§ 102.39. Rules of evidence controlling so far as prac-ticable.

Any such proceeding shall, so far as practicable,be conducted in accordance with the rules of evi-dence applicable in the district courts of the UnitedStates under the rules of civil procedure for thedistrict courts of the United States, adopted by theSupreme Court of the United States pursuant tothe Act of June 19, 1934 (U. S. C., title 28, sec. 2072).(As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.40. Stipulations of fact admissible.In any such proceeding stipulations of fact may

be introduced in evidence with respect to any issue.

§ 102.41. Objection to conduct of hearing; how made;objections not waived by further participation.

Any objection with respect to the conduct of thehearing, including any objection to the introductionof evidence, may be stated orally or in writing, ac-companied by a short statement of the grounds ofsuch objection, and included in the record. Nosuch objection shall be deemed waived by furtherparticipation in the hearing. (As amended Jan. 6,1949, 14 F. R. 78.)

§ 102.42. Filing of briefs and proposed findings withthe Trial Examiner and oral argument at thehearing.

Any party shall be entitled, upon request, to areasonable period at the close of the hearing for oralargument, which shall be included in the steno-graphic report of the hearing. Any party shall beentitled, upon request made before the close ofthe hearing, to file a brief or proposed findings andconclusions, or both, with the Trial Examiner who

may fix a reasonable time for such filing, but notin excess of fifteen days from the close of the hear-ing. Requests for further extensions of time shallbe made to the Chief Trial Examiner in Wash-ington, D.C. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.43. Continuance and adjournment.

In the discretion of the Trial Examiner, the hear-ing may be continued from day to day, or adjournedto a later date or to a different place, by announce-ment thereof at the hearing by the Trial Examiner,or by other appropriate notice. (As amended Jan. 6,1949, 14 F. R. 78.)

§ 102.44. Contemptuous conduct; refusal of witness to

answer questions.

Contemptuous conduct at any hearing before aTrial Examiner or before the Board shall be groundfor exclusion from the hearing. The refusal of awitness at any such hearing to answer any ques-tion which has been ruled to be proper shall, in thediscretion of the Trial Examiner, be ground forstriking all testimony previously given by such wit-ness on related matters. (As amended Jan. 6, 1949,14 P. R. 78.)

INTERMEDIATE REPORT AND TRANSFER OF CASE TO

THE BOARD

§ 102.45. Intermediate Report and recommended order;contents; service; transfer of the case to theBoard; contents of record in case.

After a hearing for the purpose of taking evidenceupon a complaint, the Trial Examiner shall preparean Intermediate Report and recommended order,but the initial decision shall be made by the Board.Such report shall contain findings of fact, conclu-sions, and the reasons or basis therefor, upon allmaterial issues of fact, law or discretion presentedon the record, and the recommended order shallcontain recommendations as to what disposition ofthe case should be made, which may include, if it befound that the respondent has engaged in or is en-gaging in the alleged unfair labor practices, a recom-mendation for such affirmative action by the re-spondent as will effectuate the policies of the Act.The Trial Examiner shall file the original of theIntermediate Report and recommended order withthe Board and cause a copy thereof to be served up-on each of the parties. Upon the filing of the Re-port and recommended order, the Board shall enteran order transferring the case to the Board andshall serve copies of the order, setting forth the dateof such transfer, upon all the parties.

The charge upon which the complaint was Issuedand any amendments thereto, the complaint andany amendments thereto, Notice of Hearing, answerand any amendments thereto, motions, rulings, or-ders, the stenographic report of the hearing, stipu-lations, exhibits, documentary evidence, and depo-sitions, together with the Intermediate Report andrecommended order and Exceptions, shall constitutethe record in the case. (As amended Jan. 6, 1949,174F. R. 78.)

§ 102.38 Page 1170


EXCEPTIONS TO THE RECORD AND PROCEEDING

§ 102.46. Exceptions or supporting briefs; time for fil-ing; where to file; service on parties; extension oftime; effect of failure to include matter in excep-tions; oral arguments.

(a) Within 20 days or within such further periodas the Board may allow from the date of service ofthe order transferring the case to the Board, pur-suant to § 102.45, any party may file with the Boardin Washington, D. C., an original and six copies of astatement in writing setting forth exceptions to theintermediate report and recommended order or toany other part of the record or proceedings (includ-ing rulings upon all motions or objections), togetherwith the original and six copies of a brief in supportof said exceptions, and immediately upon such filingcopies shall be served on each of the other parties;and any party may, within the same period, file anoriginal and six copies of a brief in support of theintermediate report and recommended order.Copies of such exceptions and briefs shall immedi-ately be served on each of the other parties. State-ments of exceptions and briefs shall designate byprecise citation the portions of the record reliedupon. Upon special leave of the Board, any partymay file a reply brief upon such terms as the Boardmay impose. Requests for such leave or for exten-sion of the time in which to file exceptions or briefsunder authority of this section shall be in writingand copies thereof shall be immediately served oneach of the other parties.

(b) No matter not included in a statement ofExceptions may thereafter be urged before theBoard, or in any further proceedings.

(c) Should any party desire permission to argueorally before the Board, request therefor must bemade in writing to the Board within 10 days afterthe date of service of the order transferring the caseto the Board, pursuant to Section 102.45. The Boardshall notify the parties of the time and place of oralargument, if such permission is granted.

(d) Oral arguments arc limited to 30 minutes foreach party entitled to participate. No request foradditional time will be granted unless timely applica-tion is made in advance of oral argument.

(e) Exceptions to intermediate reports and recom-mended orders, or to the record, briefs in support ofexceptions, and briefs in support of intermediatereports and recommended orders shall be legiblyprinted or mimeographed and, if mimeographed,shall be double spaced.

§ 102.47. Filing of motion after transfer of case to

Board.

All motions filed after the case has been trans-ferred to the Board pursuant to Section 102.45 shallbe filed with the Board in Washington, D. C., bytransmitting an original and six copies thereof, to-gether with an affidavit of service upon each of theparties. Such motions shall be legibly printed ormimeographed, and if mimeographed shall be doublespaced. (As amended Jan. 6, 1949, 14 F. R. 78.)

PROCEDURE BEFORE THE BOARD

§102.48. Action of Board upon expiration of time tofile Exceptions to Intermediate Report.

(a) In the event no Statement of Exceptions isfiled as herein provided, the findings, conclusions,and recommendations of the Trial Examiner as con-tained in his Intermediate Report and recommendedorder shall be adopted by the Board and become itsfindings, conclusions and order, and all objectionsand exceptions thereto shall be deemed waived forall purposes. (As amended Jan. 6, 1949, 14 F. R. 78.)

(b) Upon the filing of a statement of Exceptionsand briefs, as provided in Section 102.46, the Boardmay decide the matter forthwith upon the record, orafter oral argument, or may reopen the record andreceive further evidence before a member of theBoard or other Board agent or agency, or may closethe case upon compliance with the recommendationsof the Intermediate Report or may make other dis-position of the case. (As amended Jan. 6, 1949, 14F. R. 78.)

§ 102.49. Modification or setting aside of order of Boardbefore record filed in court; action thereafter.

Within the limitations of the provisions of Sec-tion 10 (c) of the Act, and Section 102.48 of theseRules, until a transcript of the record in a caseshall have been filed in a court, within the meaningof Section 10 of the Act, the Board may at any timeupon reasonable notice modify or set aside, in wholeor in part, any findings of fact, conclusions of law,or order made or issued by it. Thereafter, theBoard may proceed pursuant to Section 102.50, inso-far as applicable. (As amended Jan. 6, 1949, 14F. R. 78.)

§102.50. Hearings before Board or member thereof.

Whenever the Board deems it necessary in orderto effectuate the purposes of the Act or to avoidunnecessary costs or delay, it may, at any time aftera complaint has issued pursuant to Section 102.15or 102.33 order that such complaint and any pro-ceeding which may have been instituted with respectthereto be transferred to and continued before it orany member of the Board. The provisions of thisSubpart shall, insofar as applicable, govern proceed-ings before the Board or any member pursuant tothis Section, and the powers granted to Trial Ex-aminers in such provisions shall, for the purpose ofthis Section, be reserved to and exercised by theBoard or the member thereof who shall preside. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.51. Settlement or adjustment of issues.

At any stage of a proceeding prior to hearing,where time, the nature of the proceeding, and thepublic interest permit, all interested parties shallhave opportunity to submit to the Regional Directorwith whom the charge was filed, for consideration,facts, arguments, offers of settlement, or proposalsof adjustment. (As amended Jan. 6, 1949, 14 F. R.78.)

Page 1171 § 102.51


SUBPART C. PROCEDURE UNDER SECTION 9(C) OF THE ACT FOR THE DETERMINATIONOF QUESTIONS CONCERNING REPRESENTA-TION OF EMPLOYEES

§ 102.52. Petition for certification or decertification;

who may file; where to file; withdrawal.

A petition for investigation of a question concern-ing representation of employees under paragraphs(1) (A) (i) and (1) (B) of Section 9 (c) of the Act(hereinafter called a petition for certification) maybe filed by an employee or group of employees orany individual or labor organization acting in theirbehalf or by an employer. A petition under para-graph (1) (A) (ii) of Section 9 (c) of the Act, alleg-ing that the individual or labor organization whichhas been certified or is being currently recognizedas the bargaining representative is no longer suchrepresentative (hereinafter called a petition for de-certification), may be filed by any employee or groupof employees or any individual or labor organiza-tion acting in their behalf. When any such petition

is filed by a labor organization, no investigationshall be made of any question of representationraised by such labor organization unless such labor

organization is in compliance with the requirementsof section 9 (f) (g) and (h) of the act, within themeaning of § 102.13. Petitions under this sectionshall be in writing and signed,' and shall either besworn to before a notary public, Board agent, orother person duly authorized by law to administeroaths and take acknowledgments, or shall contain

a declaration by the person signing it, under thepenalties of the Criminal Code, that its contents aretrue and correct to the best of his knowledge andbelief. Four copies of the petition shall be filed.Except as provided in Section 102.64, such peti-tions shall be filed with the Regional Director forthe Region wherein the bargaining unit exists,or, if the bargaining unit exists in two or moreRegions, with the Regional Director for any ofsuch Regions. Prior to the close of the hear-ing, pursuant to Section 102.55, the petition maybe withdrawn only with the consent of the Re-gional Director with whom such petition was fied.

After the close of the hearing, the petition may bewithdrawn only with the consent of the Board.Whenever the Regional Director or the Board ap-proves the withdrawal of any petition, the case shall

be closed. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.53. Contents of petition for certification; con-

tents of petition for decertification.

(a) A petition for certification, when filed by anemployee or group of employees or an individual orlabor organization acting in their behalf, shall con-tain the following:

(1) The name of the employer.(2) The address of the establishments involved.(3) The general nature of the employer's business.(4) A description of the bargaining unit which the

petitioner claims to be appropriate.

3 Blank forms for filing such petitions will be supplied bythe Regional Office upon request.

(5) The names and addresses of any other persons

or labor organizations who claim to represent anyemployees in the alleged appropriate unit, and brief

descriptions of the contracts, if any, covering theemployees in such unit.

(6) The number of employees in the alleged ap-propriate unit and the number who have designatedthe petitioner to act.

(7) A statement that the employer declines to rec-ognize the petitioner as the representative within themeaning of Section 9 (a) of the Act.

(8) The name, affiliation, if any, and address ofthe petitioner.

(9) Any other relevant facts.(b) A petition for certification, when filed by an

employer, shall contain the following:(1) The name and address of the petitioner.(2) The general nature of the petitioner's busi-

ness.(3) A brief statement setting forth that one or

more individuals or labor organizations have pre-

sented to the petitioner a claim to be recognized asthe exclusive representative of all employees in theunit claimed to be appropriate; a description ofsuch unit; and the number of employees in the unit.

(4) The name or names, affiliation, if any, andaddresses of the individuals or labor organizationsmaking such claim for recognition.

(5) A statement whether the petitioner has con-tracts with any labor organization or other repre-sentatives of employees and, if so, their expirationdate.

(6) Any other relevant facts.(c) Petitions for decertification shall contain the

following:(1) The name of the employer.(2) The address of the establishments and a de-

scription of the bargaining unit involved.(3) The general nature of the employer's business.(4) Name and address of the petitioner and affilia-

tion, if any.(5) Name or names of the individuals or labor

organization, who have been certified or are beingcurrently recognized by the employer and who claimto represent any employees in the unit involved, andthe expiration date of any contracts covering suchemployees.

(6) An allegation that the individuals or labor or-ganization who have been certified or are currentlyrecognized by the employer are no longer the rep-resentative in the appropriate unit as defined inSection 9 (a) of the Act.

(7) The number of employees in the unit and thenumber who have designated the petitioner to actfor them.

(8) Any other relevant facts. (As amended Jan.

6, 1949, 14 F. R. 78.)

§ 102.54. Consent Election Agreements.

(a) Where a petition has been duly filed, theemployer and any individuals or labor organizationsrepresenting a substantial number of employees in-volved may, with the approval of the Regional Di-rector, enter into a consent election agreement lead-

Page 1172§ 102.52


Ing to a determination by the Regional Director ofthe facts ascertained after such consent election.Such agreement shall include a description of theappropriate unit, the time and place of holding theelection, and the pay roll to be used in determiningwhat employees within the appropriate unit shallbe eligible to vote. Such consent election shall beconducted under the direction and supervision ofthe Regional Director. The method of conductingsuch consent election shall be consistent with themethod followed by the Regional Director in con-ducting elections pursuant to Sections 102.61 and102.62 except that the rulings and determinationsby the Regional Director of the results thereof shallbe final, and the Regional Director shall issue to theparties a certification of the results of the election,including certification of representatives where ap-propriate, with the same force and effect as if issuedby the Board.

(b) Where a petition has been duly filed, the em-ployer and any individuals or labor organizationsrepresenting a substantial number of the employeesinvolved may, with the approval of the Regional Di-rector, enter into an agreement providing for awaiver of hearing and a consent election leading toa determination by the Board of the facts ascertainedafter such consent election. Such agreement shallalso include a description of the appropriate bar-gaining unit, the time and place of holding the elec-tion, and the pay roll to be used in determining whichemployees within the appropriate unit shall beeligible to vote. Such consent election shall be con-ducted under the direction and supervision of theRegional Director. The method of conducting suchelection and the post election procedure shall beconsistent with that followed by the Regional Di-rector in conducting elections pursuant to Sections102.61 and 102.62. (As amended Jan. 6, 1949, 14F. R. 78.)

§ 102.55. Investigation of petition by Regional Direc-tor; Notice of Hearing; Service of Notice; With-drawal of Notice.

After a petition has been filed, if no agreementsuch as that provided in Section 102.54 Is enteredinto and if it appears to the Regional Director thatthere is reasonable cause to believe that a questionof representation affecting commerce exists, thatthe policies of the Act will be effectuated, and thatan election will reflect the free choice of employeesin the appropriate unit, he shall prepare and causeto be served upon the parties and upon any knownindividuals or labor organizations purporting to actas representatives of any employees directly af-fected by such investigation, a Notice of Hearingbefore a hearing officer at a time and place fixedtherein. A copy of the petition shall be served withsuch Notice of Hearing. Any such Notice of Hearingmay be amended or withdrawn before the close ofthe hearing by the Regional Director on his ownmotion. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.56. Conduct of Hearing.(a) Hearings shall be conducted by a hearing

officer and shall be open to the public unless other-

wise ordered by the hearing officer. At any time,a hearing officer may be substituted for the hearingofficer previously presiding. It shall be the duty ofthe hearing officer to inquire fully into all mattersin issue and necessary to obtain a full and completerecord upon which the Board may discharge itsduties under Section 9 (c) of the Act.

(b) The hearing officer may, in his discretion,continue the hearing from day to day, or adjourn itto a later date or to a different place, by announce-ment thereof at the hearing, or by other appropriatenotice. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.57. Motions; Interventions.

(a) All motions, including motions for interven-tion pursuant to Subsection (b) hereof, shall be inwriting or, if made at the hearing, may be statedorally on the record, and shall briefly state theorder or relief sought and the grounds for suchmotion. An original and four copies of written mo-tions shall be filed and a copy thereof immediatelyshall be served upon each of the other parties to theproceeding. Motions made prior to the hearingshall be filed with the Regional Director, and mo-tions made during the hearing shall be filed with thehearing officer. After the close of the hearing allmotions shall be filed with the Board. Such motionsto the Board shall be legibly printed or mimeo-graphed, and if mimeographed shall be doublespaced. The Regional Director may rule upon allmotions filed with him, causing a copy of said rulingto be served upon each of the parties, or he mayrefer the motion to the hearing officer, Provided,That if the Regional Director grants a motion todismiss the petition the petitioner may obtain a re-view of such ruling in the manner prescribed in§ 102.63. The hearing officer shall rule, eitherorally on the record or in writing, upon all motionsfiled at the hearing or referred to him as herein-above provided, except that he shall refer to theBoard for appropriate action all motions to dismisspetitions, at such time as the Board considers theentire record.

(b) Any person desiring to intervene in any pro-ceeding shall make a motion for intervention, stat-ing the grounds upon which such person claims tohave an interest in the proceeding. The RegionalDirector or the hearing officer, as the case may be,may by order permit intervention in person or bycounsel or other representative to such extent andupon such terms as he may deem proper, and suchintervenor shall thereupon become a party to theproceeding.

(c) All motions, rulings and orders shall becomea part of the record, except that rulings on motionsto revoke subpenas shall become a part of the recordonly upon the request of the party aggrieved, asprovided in Section 102.58 (c). Unless expresslyauthorized by these Rules and Regulations, rulingsby the Regional Director and by the hearing officershall not be appealed directly to the Board except byspecial permission of the Board, but shall be con-sidered by the Board when it reviews the entirerecord. Requests to the Board for special permis-

Page 1173 § 102.57


sion to appeal from such rulings of the regional di-rector or the hearing officer shall be filed promptly,in writing, and shall briefly state the grounds reliedon. The moving party shall immediately serve acopy thereof on each other party.

(d) The right to make motions or to make objec-tions to rulings on motions shall not be deemedwaived by participation in the proceedings. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.58. Introduction of evidence; rights of parties at

hearings; subpenas.

(a) Any party shall have the right to appear atany hearing in person, by counsel, or by other repre-sentative, and any party and the hearing officer shallhave power to call, examine and cross-examine wit-nesses, and to introduce into the record documentaryand other evidence. Witnesses shall be examinedorally under oath. The rules of evidence prevailingin courts of law or equity shall not be controlling.Stipulations of fact may be introduced in evidencewith respect to any issue.

(b) Any objection with respect to the conduct ofthe hearing, including any objection to the intro-duction of evidence, may be stated orally or in writ-ing, accompanied by a short statement of thegrounds of such objection, and included in the rec-ord. No such objection shall be deemed waived byfurther participation in the hearing.

(c) Applications for subpenas may be filed in writ-ing by any party, with the Regional Director if madeprior to hearing, or with the hearing officer if madeat the hearing. Applications for subpenas may bemade ex parte. The Regional Director or the hear-ing officer, as the case may be, shall forthwith grantthe subpenas requested. Any person subpenaed, ifhe does not intend to comply with the subpena, shall,within 5 days after the date of service of the sub-pena, petition in writing to revoke the subpena.Such petition shall be filed with the Regional Di-rector; provided, however, that if the evidencecalled for is to be produced at a hearing and thehearing has opened, the petition to revoke shall befiled with the hearing officer. Notice of the filingof petitions to revoke shall be promptly given by theRegional Director or hearing officer, as the case maybe, to the party at whose request the subpena wasissued. The Regional Director or the hearing officer,as the case may be, shall revoke the subpena if, inhis opinion, the evidence whose production is re-quired does not relate to any matter under investi-gation or in question in the proceedings or the sub-pena does not describe with sufficient particularitythe evidence whose production is required. TheRegional Director or the hearing officer, as the casemay be, shall make a simple statement of proceduralor other grounds for his ruling. The petition torevoke, any answer filed thereto, and any rulingthereon, shall not become part of the record exceptupon the request of the party aggrieved by theruling. Persons compelled to submit data or evi-dence are entitled to retain or, on payment of law-fully prescribed costs, to procure, copies or tran-scripts of the data or evidence submitted by them.

(d) Contemptuous conduct at any hearing beforea hearing officer or before the Board shall be groundfor exclusion from the hearing. The refusal of awitness at any such hearing to answer any questionwhich has been ruled to be proper shall, in the dis-cretion of the hearing officer, be ground for strikingall testimony previously given by such witness onrelated matters.

(e) Any party shall be entitled, upon request, toa reasonable period at the close of the hearing, fororal argument, which shall be included in the steno-graphic report of the hearing.

(f) The hearing officer may submit an analysis ofthe record to the Board but he shall make norecommendations.

(g) Witness fees and mileage shall be paid by theparty at whose instance the witness appears. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.59. Record; what constitutes; transmission toBoard.

Upon the close of the hearing the Regional Directorshall forward to the Board in Washington, D. C., thepetition, Notice of Hearing, motions, rulings, orders,the stenographic report of the hearing, stipulations,exhibits, documentary evidence, and depositions, allof which shall constitute the record in the pro-ceeding. (As amended Jan. 6, 1949, 14 P. R. 78.)

§ 102.60. Proceedings before the Board; further hear-ing; briefs, Board Direction of Election; Certifica-tion of Results.

The Board shall thereupon proceed, either forth-with upon the record, or after oral argument or thesubmission of briefs, or further hearing, as it maydetermine, to direct a secret ballot of the employees,or to make other disposition of the matter. Shouldany party desire to file a brief with the Board, theoriginal and six copies thereof shall be filed withthe Board at Washington, D. C., within seven (7)days after the close of the hearing. Such brief shallbe legibly printed or mimeographed, and if mimeo-graphed shall be double spaced. Copies shall beserved on all other parties to the proceeding. Re-quests for extension of time in which to file a briefunder authority of this section shall be in writingand copies thereof shall immediately be served oneach of the other parties. No reply brief may befiled except upon special leave of the Board. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.61. Election procedure; Tally of Ballots; Objec-tions; Certification by Regional Director; Reporton Challenged Ballots; Report on Objections;Exceptions; Action of the Board; hearing.

Unless otherwise directed by the Board, all elec-tions shall be conducted under the supervision ofthe Regional Director in whose Region the proceed-ing is pending. All elections shall be by secret ballot.Any party may be represented by observers of hisown selection, subject to such limitations as the Re-gional Director may prescribe. Any party and Boardagents may challenge, for good cause, the eligibilityof any person to participate in the election. Theballots of such challenged persons shall be im-pounded. Upon the conclusion of the election, the

§ 102.58 74

TIT=E 29.-LABOR, APPENDIX

Regional Director shall cause to be furnished to theparties a Tally of the Ballots. After such tally hasbeen furnished, any party may file with the regionaldirector an original and three copies of objections tothe conduct of the election or conduct affecting theresults of the election, which shall contain a shortstatement of the reasons therefor. Copies of suchobjections shall be served upon each of the otherparties by the party filing them. All such objec-tions shall be filed within 5 days after the tally ofballots has been furnished, whether or not the chal-lenged ballots are sufficient in number to affect theresults of the election.

If no objections are filed within the time set forthabove, if the challenged ballots are insufficient innumber to affect the result of the election, and if norun-off election is to be held pursuant to § 102.62,the regional director shall proceed in the followingmanner:

(a) After an election conducted pursuant to anagreement waiving a hearing and providing forBoard determination of the facts ascertained aftersuch election, as contemplated by § 102.54 (b), andafter any election in a case in which a determinationof appropriate bargaining unit remains to be madeby the Board, the regional director shall forthwithforward to the Board in Washington, D. C., the tallyof ballots, which, together with the record previouslymade, shall constitute the record in the case, and theBoard may thereupon decide the matter forthwithupon the record, or may make other disposition ofthe case.

(b) After an election not conducted pursuant toan agreement contemplated by § 102.54 (b), andwhere no determination of the appropriate bargain-ing unit remains to be made by the Board, the re-gional director shall forthwith issue to the parties acertification of the results of the election, includingcertification of representatives where appropriate,with the same force and effect as if issued by theBoard, and the proceeding will thereupon be closed.

If no such Objections are filed within the timeset forth above, and if the challenged ballots areinsufficient in number to affect the result of theelection, the Regional Director shall, if no run-offelection Is to be held pursuant to Section 102.62,forthwith forward to the Board in Washington,D. C., the Tally of the Ballots which, together withthe record previously made, shall constitute the rec-ord in the case, and the Board may thereupon de-cide the matter forthwith upon the record, or maymake other disposition of the case.

The Report on Challenged Ballots may be consoli-dated with the Report on Objections in appropriatecases.

If Exceptions are filed, either to the Report onChallenged Ballots, Objections, or both if it be aconsolidated report, and it appears to the Boardthat such Exceptions do not raise substantial andmaterial issues with respect to the conduct or resultsof the election, the Board may decide the matterforthwith upon the record, or may make other dis-position of the case. If it appears to the Board thatsuch Exceptions raise substantial and material issues,

the Board may direct the Regional Director or otheragent of the Board to issue, and cause to be servedupon the parties, a Notice of Hearing on said Excep-tions before a hearing officer. The hearing shall beconducted in accordance with the provisions of Sec-tions 102.56, 102.57, and 102.58, insofar as applicable.Upon the close of the hearing, the agent conductingthe hearing shall forward to the Board in Washing-ton, D. C., the Notice of Hearing, motions, rulings,orders, stenographic report of the hearing, stipula-tions, Exceptions, documentary evidence, all ofwhich, together with the Objection to the conductof the election or conduct affecting the results ofthe election, the Report on such Objections, theReport on Challenged Ballots, and Exceptions tothe Report on Objections or to the Report on Chal-lenged Ballots, and the record previously made, shallconstitute the record in the case. The Board shallthereupon proceed pursuant to Section 102.60. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.62. Run-off election.

(a) The regional director shall conduct a run-offelection, without further order of the Board, whenan election in which the ballot provided for not lessthan three choices (I. e. at least two representativesand "neither") results in no choice receiving a ma-jority of the valid ballots cast and no objections arefiled as provided in § 102.61. Only one run-off shallbe held pursuant to this Section.

(b) Employees who were eligible to vote in theelection and who are employed in an eligible cate-gory on the date of the run-off election shall beeligible to vote in the run-off election.

(c) The ballot in the run-off election shall pro-vide for a selection between the two choices receiv-ing the largest and second largest number of votes.

(d) In the event the number of votes cast in aninconclusive election in which the ballot providedfor a choice among two representatives and "nei-ther" is equally divided among the three choices;or in the event the number of ballots cast for onechoice in such election is equal to the number castfor another of the choices but less than the numbercast for the third choice, the Regional Director shalldeclare the first election a nullity and shall conductanother election, providing for a selection betweenthe three choices afforded in the original ballot; andhe shall thereafter proceed in accordance with sub-paragraphs (a), (b), and (c) of this Section. Onlyone further election pursuant to this subsection maybe held.

(e) Upon the conclusion of the run-off election,the provisions of Section 102.61 shall govern, insofaras applicable. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.63. Refusal to issue Notice of Hearing; Appealsto Board from action of the Regional Director.

If, after a petition has been filed, it shall appearto the Regional Director that no Notice of Hearingshould issue as provided in Section 102.55, the Re-gional Director may dismiss the petition, and shallso advise the petitioner in writing, accompanied bya simple statement of the procedural or othergrounds. The petitioner may obtain a review of such

Page 1175 § 102.63


action by filing a request therefor with the Boardin Washington, D. C., and filing a copy of suchrequest with the Regional Director within ten (10)days of service of such notice of dismissal. Therequest shall contain a complete statement settingforth the facts and reasons upon which the requestis based. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.64. Filing petition with General Counsel; inves-tigation upon motion of General Counsel; transferof petition and proceeding from Region to Gen-eral Counsel or to another Region; consolidationof proceedings in same Region; severance; pro-cedure before General Counsel in cases over whichhe has assumed jurisdiction.

Whenever the General Counsel deems it necessaryin order to effectuate the purposes of the Act, or toavoid unnecessary costs or delay, he may permit apetition to be filed with him in Washington, D. C.,or may, at any time after a petition has been filedwith a Regional Director pursuant to Section 102.52,order that such petition and any proceeding thatmay have been instituted with respect thereto

(a) be transferred to and continued before him,for the purpose of investigation or consolidation withany other proceeding which may have been institutedin a Regional office or with him; or

(b) be consolidated with any other proceedingwhich may have been instituted in the same Region;or

(c) be transferred to and continued in any otherRegion, for the purpose of investigation or con-solidation with any proceeding which may have beeninstituted in or transferred to such other Region; or

(d) be severed from any other proceeding withwhich it may have been consolidated pursuant tothis Section.

The provisions of Sections 102.52 to 102.63, inclu-sive, shall insofar as applicable, apply to proceedingsbefore the General Counsel pursuant to this Section,and the powers granted to Regional Directors Insuch provisions shall, for the purpose of this Section,be reserved to and exercised by the General Counsel.After the transfer of any petition and any proceed-ing which may have been instituted in respect there-to from one Region to another pursuant to this Sec-tion, the provisions of this Subpart shall, insofar asapplicable, govern such petition and such proceedingas if the petition had originally been filed in theRegion to which the transfer is made. (As amendedJan. 6, 1949, 14 F. R. 78.)

SUBPART D. PROCEDURE FOR REFERENDUMUNDER SECTION 9 (e) OF THE ACT

§ 102.65. Petition for referendum under Section 9 (e)(1) of Act; who may file; where to file; withdrawal.

A petition for authority to make an agreement re-quiring membership in a labor organization as a con-dition of employment, pursuant to Section 9 (e) (1)of the Act, may be filed by a labor organization, whichIs the representative of employees as provided inSection 9 (a) of the Act, Provided, That such peti-tion will not be entertained unless the labor organi-zation filing it is in compliance with the require-ments of section 9 (f) (g) and (h) of the act, withinthe meaning of § 102.13. The petition shall be in

writing and signed, and shall either be sworn tobefore a notary public, Board agent, or other personduly authorized by law to administer oaths and takeacknowledgments, or shall contain a declaration bythe person signing it, under the penalties of theCriminal Code, that its contents are true and correctto the best of his knowledge and belief.' Four copiesof the petition shall be filed with the Regional Di-rector wherein the bargaining unit exists, or, ifthe unit exists in two or more Regions, with theRegional Director for any of such Regions. Thepetition may be withdrawn only with the approvalof the Regional Director with whom such petitionwas filed, except that if the proceeding has beentransferred to the Board, pursuant to Section 102.59,the petition may be withdrawn only with the consentof the Board. Upon approval of the withdrawal ofany petition the case shall be closed. (As amendedJan. 6, 1949, 14 F. R. 78.)

§ 102.66. Contents of petition.

Such petition shall contain the following:(a) The name of the employer.(b) The address of the establishments involved.(c) The general nature of the employer's business.(d) A description of the bargaining unit to be

covered by the agreement if made.(e) The number of employees in the unit.(f) The names and addresses of any other persons

or labor organizations who claim to represent anyemployees in the unit.

(g) The name, affiliation, if any, and address ofthe petitioner.

(h) The date of certification or date of recognitionof the labor organization by the employer if there isno certification, or any other facts to support peti-tioner's claim to be the representative of theemployees.

(I) The approximate number of employees withinthe unit who have authorized the petitioner to makesuch an agreement.

CQ) Any other relevant facts. (As amended Jan. 6,1949, 14 F. R. 78.)

§ 102.67. Investigation of petition by Regional Direc-

tor; Consent Referendum; Directed Referendum.

Where a petition has been filed pursuant to Sec-tion 102.65 and it appears to the Regional Directorthat the petitioner has made an appropriate show-ing, in such form as the Regional Director may de-termine, that 30 per centum or more of the em-ployees within an appropriate unit desire to au-thorize the petitioner to make an agreement withtheir employer requiring membership in the unionas a condition of employment and when it furtherappears to the Regional Director that no questionof representation affecting such employees exists,he shall proceed forthwith to conduct a secret ballotof the employees involved on the question whetherthey desire to authorize the petitioner to enter intosuch agreement: Provided, however, that in anycase In which it appears to the Regional Director

4 Forms for filing such petitions will be supplied by theRegional Office upon request.

§ 102.64 Page 1176


that the proceeding raises questions which shouldbe decided by the Board before election he may issueand cause to be served on the parties, a notice ofhearing before a hearing officer at a time and placefixed therein. The Regional Director shall fix thetime and place of the election, eligibility require-ments for voting, and other arrangements of theballoting, but the parties may enter into an agree-ment, subject to the approval of the Regional Di-rector, fixing such arrangements. In any such con-sent agreements, provision may be made for finaldetermination of all questions arising with respectto the balloting, by the Regional Director or by theBoard. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.68. Hearing; post-hearing procedure.

The method of conducting the hearing and theprocedure following the hearing, including transferof the case to the Board, shall be governed, insofaras applicable, by Sections 102.55 to 102.60, inclusive,of these Rules and Regulations. (As amended Jan.6, 1949, 14 F. R. 78.)

§ 102.69. Method of conducting balloting; post-ballot-

ing procedure.

The method of conducting the balloting and thepost-balloting procedure shall be governed by theprovisions of Section 102.61 of these Rules and Reg-ulations, insofar as applicable. (As amended Jan. 6,1949, 14 F. R. 78.)

§ 102.70. Refusal to conduct referendum; appeal toBoard.

If, after a petition has been filed, it shall appearto the Regional Director that no referendum shouldbe conducted, he shall dismiss the petition. Suchdismissal shall be in writing and accompanied bya simple statement of the procedural or othergrounds. The petitioner may obtain a review ofsuch action by filing a request therefor with theBoard in Washington, D. C., and filing a copy of suchrequest with the Regional Director, within 10 daysfrom the service of notice of such dismissal. Therequest shall contain a complete statement settingforth the facts and reasons upon which the requestis based. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.71. Petition for referendum under Section 9 (e)(2) of the Act; who may file; where to file; with-drawal.

A petition to rescind the authority of a labor or-ganization to make an agreement requiring as a con-dition of employment membership in a labororganization may be filed by, or by any employee orgroup of employees on behalf of, 30 per centum ormore of the employees in a bargaining unit for whichthe labor organization has been authorized to makesuch an agreement with their employer. The provi-sions of Section 102.65 shall apply in all other re-spects. (As amended Jan. 6, 1949, 14 F, R. 78.)

§ 102.72. Contents of petition to rescind authority.

Such petition shall contain the following:(1) The name of the employer.(2) The address of the establishments involved.(3) The general nature of the employer's business.

98586°-Supp. III, Vol. 1-50-----76

(4) A description of the bargaining unit involved.(5) The name and address of the labor organiza-

tion whose authority it is desired to rescind, and thedate of the last referendum conducted by the Board.

(6) The number of employees in the unit and thenumber on whose behalf the petitioner Is authorizedto act.

(7) The date of execution and of expiration ofany contract in effect covering the unit involved.

(8) The name and address of the person desig-nated to accept service of documents for petitioners.

(9) Any other relevant facts. (As amended Jan.6, 1949, 14 F. R. 78.)

§ 102.73. Subsequent proceedings under Section 9 (e)(2).

Where a petition has been filed pursuant to Sec-tion 102.71, and it appears to the Regional Directorthat the petitioner has made an appropriate show-ing, in such form as the Regional Director may de-termine, that 30 per centum or more of the em-ployees within an appropriate unit for which thelabor organization has been authorized to make anagreement with the employer requiring member-ship in such organization as a condition of em-ployment, desire to rescind such authority, he shallproceed forthwith to conduct a secret ballot of theemployees to determine whether they desire torescind such authority: provided, however, that inany case in which it appears to the Regional Di-rector that the proceeding raises questions whichshould be decided by the Board before the ballotingis held, he may issue and cause to be served on theparties, a Notice of Hearing before a hearing officerat a time and place fixed therein.

The provisions of Sections 102.67 to 102.70, in-clusive, shall, insofar as applicable, govern the pro-ceedings. (As amended Jan. 6, 1949, 14 F. R. 78.)

SUBPART E. PROCEDURE TO HEAR AND DE-TERMINE DISPUTES UNDER SECTION 10 (k)OF THE ACT

§ 102.74. Initiation of proceedings; notice of filing

charge; notice of hearing.

Whenever it is charged that any person has en-gaged in an unfair labor practice within the meaningof paragraph (4) (D) of Section 8 (b), the RegionalDirector shall investigate such charge, giving it pri-ority over all other cases in the office except casesunder paragraph (4) (A), (4) (B), and (4) (C) ofSection 8 (b) and other cases under paragraph (4)(D) of Section 8 (b). If it appears to the RegionalDirector that further proceedings should be insti-tuted, he shall cause to be served on all parties tothe dispute out of which such unfair labor practicemay have arisen a notice of the filing of said chargetogether with a notice of hearing before a hearingofficer at a time and place fixed therein which shallbe not less than 10 days after service of the Notice ofHearing. The Notice of Hearing shall contain asimple statement of the issues involved in suchdispute. (As amended Jan. 6, 1949, 14 F. R. 78.)

Page 1177 § 102.74


§ 102.75. Adjustment of dispute; withdrawal of Noticeof Hearing; hearing.

If, within 10 days after service of the Notice ofHearing the parties submit to the Regional Directorsatisfactory evidence that they have adjusted oragreed upon methods of voluntary adjustment of thedispute, the Regional Director shall withdraw theNotice of Hearing and shall dismiss the charge.Hearings shall be conducted by a hearing officer andthe procedure shall conform, insofar as applicable,to the procedure set forth in Sections 102.56 to 102.59,inclusive, of these Rules and Regulations. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§ 102.76. Proceedings before the Board; further hear-ings; briefs; certification.

Upon the close of the hearing, the Board shall pro-ceed either forthwith upon the record, or after oralargument, or the submission of briefs, or furtherhearing, as it may determine, to certify the labororganization or the particular trade, craft or classof employees, as the case may be, which shall per-form the particular work tasks in issue, or to makeother disposition of the matter. Should any partydesire to file a brief with the Board, an original andsix copies thereof shall be filed with the Board atWashington, D. C., within 7 days after the close ofthe hearing. Immediately upon such filing, a copyshall be served on the other parties. Such brief shallbe legibly printed or mimeographed, and if mimeo-graphed shall be double spaced. Requests for ex-tension of time in which to file a brief under authori-ty of this section shall be in writing and copies there-of shall immediately be served on each of the otherparties. No reply brief may be filed except uponspecial leave of the Board. (As amended Jan. 6,1949, 14 F. R. 78.)§ 102.77. Compliance with certification; further pro-

ceedings.

If, after issuance of certification by the Board, theparties submit to the Regional Director satisfactoryevidence that they have complied with the certifica-tion, the Regional Director shall dismiss the charge.If no satisfactory evidence of compliance is sub-mitted, the Regional Director may proceed with thecharge under paragraph (4) (D) of Section 8 (b)and Section 10 of the Act and the procedure pre-scribed in Sections 102.9 to 102.51, inclusive, of theseRules and Regulations shall, insofar as applicable,govern. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.78. Review of Certification.

The record of the proceeding under Section 10(k) and the certification of the Board thereon, shallbecome a part of the record in such unfair laborpractice proceeding and shall be subject to judicialreview insofar as it is in issue, in proceedings toenforce or review the final order of the Board under10 (e) and (f) of the Act. (As amended Jan. 6, 1949,14 F. R. 78.)

SUBPART F. PROCEDURE IN CASES UNDERSECTION 10 (j) AND (1) OF THE ACT

§ 102.79. Expeditious processing of Section 10 (j) cases.

(a) Whenever temporary relief or a restrainingorder pursuant to Section 10 (j) of the Act has beenprocured by the Board, the complaint which hasbeen the basis for such temporary relief or restrain-ing order shall be heard expeditiously and the case

shall be given priority by the Board in Its successivesteps following the issuance of the complaint (untilultimate enforcement or dismissal by the appropriateCircuit Court of Appeals) over all other cases exceptcases of like character and cases under Section 10(1) of the Act.

(b) In the event the Trial Examiner hearing acomplaint concerning which the Board has pro-cured temporary relief or a restraining order pur-suant to Section 10 (j), recommends a dismissal inwhole or in part of such complaint, the RegionalAttorney shall forthwith suggest to the DistrictCourt which issued such temporary relief or restrain-ing order, the possible change in circumstances aris-ing out of the findings and recommendations of theTrial Examiner. (As amended Jan. 6, 1949, 14 F. R.78.)

§ 102.80. Priority of cases pursuant to Section 10 (1) of

the Act.

Whenever a charge is filed alleging the commissionof an unfair labor practice within the meaning ofparagraph 4 (A), (B), or (C) of Section 8 (b) of theAct, the Regional Office in which such charge is filedor to which it is referred shall give it priority overall other cases in the office except cases of likecharacter. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.81. Issuance of complaint promptly.

Whenever the regional attorney or other Boardofficer to whom the matter may be referred seeksinjunctive relief of a district court pursuant to sec-tion 10 (1) of the act, a complaint against the labororganization sought to be enjoined, covering thesame subject matter as such application for injunc-tive relief, shall be issued promptly-normally with-in 5 days of the date upon which such injunctiverelief is first sought. (As amended Jan. 6, 1949, 14

F. R. 78.)

§ 102.82. Expeditious processing of Section 10 (1) cases

in successive stages.

Any complaint issued pursuant to Section 102.80shall be heard expeditiously and the case shall begiven priority in its successive steps following itsissuance (until ultimate enforcement or dismissalby the appropriate Circuit Court of Appeals) overall cases except cases of like character. (As amendedJan. 6, 1949, 14 F. R. 78.)

SUBPART G. SERVICE OF PAPERS

§102.83. Service of process and papers; proof ofservice.

Complaints, orders, and other process and papersof the Board, its member, agent, or agency, may be

Page 1178§ 102.75


served personally or by registered mail or by tele-graph or by leaving a copy thereof at the principaloffice or place of business of the person required tobe served. The verified return by the individual soserving the same, setting forth the manner of suchservice, shall be proof of the same, and the returnpost-office receipt or telegraph receipt therefor whenregistered and mailed or telegraphed as aforesaidshall be proof of service of the same. (As amendedJan. 6, 1949, 14 F. R. 78.)

§ 102.84. Same; by parties; proof of service.

Service of papers by a party on other parties shallbe made by registered mail or in any manner pro-vided for the service of papers in a civil action bythe law of the State in which the hearing is pend-ing. When service is made by registered mail, thereturn post-office receipt shall be proof of service.When service is made in any manner provided bysuch law, proof of service shall be made in accord-ance with such law. (As amended Jan. 6, 1949, 14F.R. 78.)

§ 102.85. Filing of proof of service.

The person or party serving the papers or processon other parties in conformance with Sections 203.83and 102.84 shall make proof of service thereof tothe Board promptly and in any event within 24 hoursafter the returned postoffice receipt or other evi-dence for such proof of service comes into the pos-session of the party making the service. Failure tomake proof of service does not affect the validity ofthe service. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.86. Time; additional time after service by mail.

In computing any period of time prescribed orallowed by these Rules, the day of the act, event,or default after which the designated period of timebegins to run, is not to be included. The last dayof the period so computed is to be included, unlessIt is a Sunday or a legal holiday, in which event,the period runs until the end of the next day, whichis neither a Sunday nor a legal holiday. When theperiod of time prescribed or allowed is less thanseven (7) days, intermediate Sundays and holi-days shall be excluded in the computation. Forthe purpose of this section a Saturday on whichthe Board's offices are not open for business shallbe considered as a holiday, but a half-holidayshall be considered as other days and not as aholiday. Whenever a party has the right or is re-quired to do some act or take some proceedingswithin a prescribed period after service of a noticeor other paper upon him, and the notice or paperis served upon him by mail, three (3) days shallbe added to the prescribed period. (As amended Jan.B, 1949, 14 F. R. 78.)

SUBPART H. CERTIFICATION AND SIGNATURE

OF DOCUMENTS

§ 102.87. Certification of papers and documents.

The Executive Secretary of the Board, or, in theevent of his absence or disability, whosoever may bedesignated by the Board in his place and stead, shall

certify copies of all papers and documents which area part of any of the files or records of the Boardas may be necessary or desirable from time to time.(As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.88. Signatures of orders.The Executive Secretary, or, in the -event of his

absence or disability, whosoever may be designatedby the Board in his place and stead, is hereby author-ized to sign all orders of the Board. (As amendedJan. 6, 1949, 14 F. R. 78.)

SUBPART I. RECORDS AND INFORMATION

§ 102.89. Files, records, etc, in exclusive custody ofBoard and not subject to inspection; formal docu-ments and final opinions and orders subject toinspection.

(a) The formal documents described as the recordin the case or proceeding and defined in Sections102.45, 102.59, and 102.61 of these Rules and Regula-tions are matters of official record, and are availableto inspection and examination by persons properlyand directly concerned, during usual business hours,at the appropriate Regional Office of the Board or inWashington, D. C., as the case may be. True andcorrect copies thereof will be certified upon submis-sion of such copies a reasonable time in advance ofneed and payment of lawfully prescribed costs; pro-vided, however, that if the Board, the General Coun-sel, or the Regional Director with whom the docu-ments are filed shall find in a particular instancegood cause why a matter of official record should bekept confidential, such matter shall not be availablefor public inspection or examination. Applicationfor such Inspection, if desired to be made at theBoard's offices in Washington, D. C., shall be made tothe Executive Secretary or the General Counsel, asthe case may be, and if desired to be made at any Re-gional Office, shall be made to the Regional Director.The Executive Secretary, General Counsel, or theRegional Director may, in his discretion, require thatthe application be made in writing and under oathand set forth the facts upon which the applicantrelies to show that he is properly and directly con-cerned with such inspection and examination.Should the Executive Secretary, General Counsel, orthe Regional Director, as the case may be, deny anysuch application, he shall give prompt notice thereof,accompanied by a simple statement of procedural orother grounds.

(b) All final opinions or orders of the Board inthe adjudication of cases (except those requiredfor good cause to be held confidential and not citedas precedents) and its Rules and Regulations areavailable to public inspection during regular businesshours at the Board's offices in Washington, D. C.Copies may be obtained upon request made to anyRegional Office of the Board at its address as pub-lished in the Federal Register, or to the Directorof Information in Washington. Subject to the pro-visions of Sections 102.31 and 102.58 of these Rulesand Regulations, all files, documents, reports, memo-randa, and records pertaining to the internal man-agement of the Board or to the investigation or dis-position of charges or petitions during the non-

§ 102.89Page 1179


public investigative stages of proceedings and beforethe institution of formal proceedings, and all mat-ters of evidence obtained by the Board or any of itsagents in the course of investigation, which havenot been offered in evidence at a hearing before aTrial Examiner or hearing officer or have not beenmade part* of an official record by stipulation,whether in the Regional Offices of the Board or inits principal office in the District of Columbia, arefor good cause found by the Board held confidentialand are not matters of official record or availableto public inspection, unless permitted by the Board,its Chairman, the General Counsel, or any RegionalDirector. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.90. Same; Board employees prohibited from pro-ducing files, records, etc., pursuant to subpenaduces tecum, prohibited from testifying in regardthereto.

No Regional Director, Field Examiner, Trial Ex-aminer, attorney, specially designated agent, Gen-eral Counsel, member of the Board or other officeror employee of the Board shall produce or presentany files, documents, reports, memoranda, or rec-ords of the Board or testify in behalf of any partyto any cause pending in any court or before theBoard, or any other Board, Commission, or otheradministrative agency of the United States or ofany State, Territory, or the District of Columbiawith respect to any information, facts, or othermatter coming to his knowledge in his official ca-pacity or with respect to the contents of any files,documents, reports, memoranda, or records of theBoard, whether in answer to a subpena, subpenaduces tecum or otherwise, without the written con-sent of the Board or the Chairman of the Board, ifthe official or document is subject to the supervisionor control of the Board; or the General Counsel ifthe official or document is subject to the supervisionor control of the General Counsel. Whenever anysubpena or subpena duces tecum calling for rec-ords or testimony as described hereinabove shallhave been served upon any such persons or otherofficer or employee of the Board, he will, unlessotherwise expressly directed by the Board or theChairman of the Board, or the General Counsel, asthe case may be, appear in answer thereto and re-spectfully decline by reason of this Rule to produceor present such files, documents, reports, memorandaor records of the Board or give such testimony. (Asamended Jan. 6, 1949, 14 F. R. 78.)

SUBPART J. PRACTICE BEFORE THE BOARD OFFORMER EMPLOYEES

§ 102.91. Prohibition of practice before Board of itsformer Regional employees in cases pending inRegion during employment.

No person who has been an employee of the Boardand attached to any of its Regional Offices shall en-gage in practice before the Board or its agents inany respect or in any capacity in connection withany case or proceeding which was pending in anyRegional Office to which he was attached duringthe time of his employment with the Board. (Asamended Jan. 6, 1949, 14 F. R. 78.)

§102.92. Same; application to former employees ofWashington staff.

No person who has been an employee of the Boardand attached to the Washington staff shall engagein practice before the Board or its agents In anyrespect or in any capacity in connection with anycase or proceeding pending before the Board or anyRegional Offices during the time of his employmentwith the Board. (As amended Jan. 6, 1949, 14 F. R.78.)

SUBPART K. CONSTRUCTION OF RULES

§ 102.93. Rules to be liberally construed.

These Rules and Regulations shall be liberallyconstrued to effectuate the purposes and provisionsof the Act. (As amended Jan. 6, 1949, 14 F. R. 78.)

SUBPART L. ENFORCEMENT OF RIGHTS, PRIVI-LEGES, AND IMMUNITIES GRANTED ORGUARANTEED UNDER SECTION 222 (F), COM-MUNICATIONS ACT OF 1934, AS AMENDED,TO EMPLOYEES OF MERGED TELEGRAPHCARRIERS

§ 102.94. [Rules applicable to enforcement of rightsand privileges.]'

All matters relating to the enforcement of rights,privileges, or immunities granted or guaranteedunder Section 222 (f) of the Communications Actof 1934, as amended, shall be governed by the provi-sions of Subparts A, B, G, H, I, and K of these Rulesand Regulations, insofar as applicable, except thatreference in Subpart B to "unfair labor practices"or "unfair labor practices affecting commerce" shallfor the purposes of this Article mean the denial ofany rights, privileges, or immunities granted orguaranteed under Section 222 (f) of the Communi-tions Act of 1934, as amended. (As amended Jan. 6,1949, 14 F. R. 78.)

SUBPART M. AMENDMENTS

§ 102.95. Amendment or rescission of rules.

Any rule or regulation may be amended orrescinded by the Board at any time. (As amendedJan. 6, 1949, 14 F. R. 78.)

§ 102.96. Petitions for issuance, amendment or repealof rules.

Any interested person may petition the Board, inwriting, for the issuance, amendment, or repeal ofa rule or regulation. An original and five copies ofsuch petition shall be filed with the Board in Wash-ington, D. C., and shall state the rule or regulationproposed to be issued, amended or repealed, to-gether with a statement of grounds in support ofsuch petition. (As amended Jan. 6, 1949, 14 F. R.78.)

§ 102.97. Action on petition.

Upon the filing of such petition, the Board shallconsider the same, and may thereupon either grantor deny the petition in whole or in part, conduct an

'Section enacted without a catchline which has beensupplied by editor.

§ 102.90 Page 1180


appropriate hearing thereon, or make other disposi-tion of the petition. Should the petition be deniedin whole or in part, prompt notice shall be given ofthe denial, accompanied by a simple statement ofthe grounds unless the denial is self-explanatory.(As amended Jan. 6, 1949, 14 F. R. 78.)

Rules and Regulations Implementing Fair Labor

Standards Act As Amended to October 18, 1948

Part 516. RECORDS TO BE KEPT BY EMPLOYERS

II. EMPLOYEE INFORMATION AND DATA TO BECONTAINED IN EMPLOYERS' RECORDS

§ 516.3. Employees under certain union agreementswho are to be paid for overtime over 12 hours aday or 56 hours a week as provided in section 7 (b)(1) or 7 (b) (2)-(a) Items required.

Every employer of employees who are employed:1. In pursuance of an agreement, made as a re-

sult of collective bargaining by representatives ofemployees certified as bona fide by the National La-bor Relations Board, which provides that no em-ployee shall be employed more than one thousandhours during any period of twenty-six consecutiveweeks, or

2. On an annual basis in pursuance of an agree-ment, made as a result of collective bargaining byrepresentatives of employees certified as bona fideby the National Labor Relations Board, which pro-vides that the employee shall not be employed morethan 2,080 hours during any period of 52 consecutiveweeks; shall maintain and preserve pay roll or otherrecords containing the following information anddata on each and every employee to whom Section6 (minimum hourly wages) of the Fair Labor Stand-ards Act applies and who, as a result of such agree-ment or amendment thereto, is employed in accord-ance with Section 7 (b) (1) or 7 (b) (2) of the Act(overtime excess compensation for employment over12 hours a day or 56 hours a week):

(1) Name in full,

(And on the same record, the employee's identify-ing symbol or number if such is used in place ofname on any time, work, or pay roll records)

(2) Home address,(3) Date of birth if under 19,(4) Occupation in which employed,(5) Time of day and name of the day on which

the employee's workweek begins,(6) (i) Regular hourly rate of pay, and (ii) Basis

on which wages are paid,(7) Hours worked each workday, and total hours

worked each workweek,(8) Total daily or weekly straight-time earnings

or wages,(9) Daily and weekly overtime excess compensa-

tion,(10) Total additions to or deductions from wages

paid each pay period,(11) Total wages paid each pay period,(12) Date of payment and the pay period covered

by payment.

(c) Record of persons and periods employed underagreements.

Every employer shall also make, keep, and pre-serve a record, either separately or as a part of thepay roll:

(1) Listing each and every employee employedpursuant to each such collective bargaining agree-ment and each amendment and addition thereto

(2) Indicating the period or periods during whichthe employee, pursuant to an agreement, has been oris employed for either, (i) not more than 1,000hours during any period of 26 consecutive weeks, or(ii) on an annual basis and for not more than 2,080hours during any period of 52 consecutive weeks, and

(3) Showing the total hours worked during anyperiod of 26 consecutive weeks, if employed in ac-cordance with Section 7 (b) (1), or during each pe-riod of 52 consecutive weeks, if employed in ac-cordance with Section 7 (b) (2).

§ 516.11. Homeworkers.

(d) With respect to each lot of work issued:(1) Date on which work is given out to worker,

and amount of such work given out,(2) Date on which work is returned by worker,

and amount of such work returned,(3) Kind of articles worked on and operations

performed,(4) Piece rates paid,(5) Hours worked on each lot of work returned,(6) Wages paid for each lot of work returned,

III. LENGTH OF TIME RECORDS SHALL BEPRESERVED

§ 516.14. Records to be preserved four years.

(a) 'Each employer shall preserve for at least3 years:

(1) Pay-roll records.From the last date of entry, all those pay roll or

other records containing the employee informationand data required under any of the applicable§§ 516.2 to 516.13 inclusive, and

(2) Certificates, union agreements, and notices.From their last effective date, all those certificates,

union agreements and amendments or additionsthereto, and notices listed or named in these sameapplicable sections.

VI. GRANTING OF EXCEPTIONS

§ 516.18. Posting of notices.Every employer employing any employees engaged

in commerce or in the production of goods for com-merce shall post and keep posted such notices per-taining to the applicability of the Fair Labor Stand-ards Act as shall be prescribed by the Division, inconspicuous places in every establishment wheresuch employees are employed so as to permit themto readily observe a copy on the way to or from theirplace of employment. (Added Dec. 15, 1949, 14 F. R.7516, eff. Jan. 25, 1950.)

' So In original. There is no subsec. (b).

Page 1181 § 516.18

T


§ 516.19. Petitions for exceptions-(a) Submission ofpetitions for relief.

Any employer or group of employers who, due to

peculiar conditions under which he or they mustoperate, desires authority to maintain records inother manner than herein required, or to be re-lieved of preserving certain records for the periodnamed in these Regulations, may submit a writtenpetition to the Administrator setting forth theauthority desired and the reasons therefor.

(b) Action on such petitions.If, on review of the petition and after the com-

pletion of any necessary investigation supplementarythereto, the Administrator shall find that the au-thority prayed for, if granted, will not hamper orinterfere with the enforcement of the provisions ofthe Fair Labor Standards Act or any regulation ororders issued thereunder, he may then grant such

authority but limited by such conditions as he maydetermine are requisite, and subject to possible sub-sequent revocation. Where the authority grantedhereunder is sought to be revoked for failure to com-ply with the conditions determined by the Adminis-

trator to be requisite to its existence, the employer orgroups of employers involved shall be notified inwriting of the facts constituting such failure and

afforded an opportunity to achieve or demonstratecompliance. The grant of authority hereunder, andall revocations of such authority shall be publishedin the Federal Register.

(c) Compliance after submission of such petitions.No employer or group of employers is relieved of

any obligation to comply with all the requirements

of the regulations in this part applicable to him, orto them, as a result of the submission of a petitionor through delay of the Administrator in acting ona petition received. However, the Administratorshall give notice of the denial of any petition withdue promptness. (Formerly § 516.18 renumbered§ 516.19, Dec. 15, 1949, 14 F. R. 7516, eff. Jan. 25,1950.)

VII. REVISION OF REGULATIONS

§ 516.20. Amendment of regulations-(a) Petitions forrevision of regulations.

Any person wishing a revision of any of the terms

of the foregoing Regulations on records to be keptby employers may submit in writing to the Adminis-

trator a petition setting forth the changes desired

and the reasons for proposing them.

(b) Action on such petitions.

If upon inspection of the petition the Administra-

tor believes that reasonable grounds are set forth

for amendment of the Regulations, the Administra-

tor shall either schedule a hearing with due notice

to interested parties, or make other provisions foraffording interested parties an opportunity to Pre-

sent their views, both in support of and in oppositionto the petition. (Formerly § 516.19, renumbered§ 516.20, Dec. 15, 1949, 14 F. R. 7516, eff. Jan. 25,1950.)

Part 520. PART-TIME EMPLOYMENT OF STU-DENT-LEARNERS IN VOCATIONAL TRAININGPROGRAMS

§ 520.2. Applications for student-learner certificates.Notwithstanding any of the provisions of the gen-

eral learner regulations, Part 522 (Regulations Ap-plicable to the Employment of Learners, title 29,chapter V, Code of Federal Regulations), applica-tions for student-learner certificates may be filedwith the Administrator of the Wage and Hour Di-vision, United States Department of Labor, by anyofficer of the school, college, or university. Such ap-plication must be made on the official form fur-nished by the Wage and Hour Division; must clearlyoutline the vocational training program, showingthe nature of the processes in which he is to engageon the job and the related instruction furnishedthe student-learner in the school, college, or uni-versity; and must set forth all additional informa-tion required by such form, including, among otherthings, the total number of persons employed in theestablishment, data regarding the age of the em-ployee, the proposed hourly wage rate, and thelength of the period for, and the total weekly hoursdevoted to employment training and school instruc-tion. Each application must be signed by the em-ployer and by the student-learner.

§ 520.7. Prohibition; false evidence.(a) No employer shall employ any student-learner

under a student-learner certificate in violation ofany of the terms thereof.

(b) A student-learner certificate shall be null andvoid if the applicant shall have set forth any factor facts in his application which he knew or hadreasonable cause to believe to be false. Such nul-lification shall follow upon a determination of falsityand knowledge thereof, made in accordance withthe procedure established in § 520.8 hereof for therevocation of certificates.

§ 520.8. Revocation of certificates.Any certificate issued under the regulations in this

part may be canceled for cause by the Administratorafter the facts or conduct which may warrant suchcancelation shall have been called in writing to theattention of the student learner, the employer, andthe officer of the educational institution involved,and the parties accorded an opportunity to demon-strate or achieve compliance with all requirements.

Part 521. EMPLOYMENT OF APPRENTICES

§ 521.4. Request for special certificate.(a) Upon approval of the apprenticeship agree-

ment the employer shall immediately send theapproved apprenticeship agreement, or a true copythereof, to the Wage and Hour Division, U. S. Depart-ment of Labor, Washington, D. C., with a requestthat a special certificate be issued authorizing theemployment of the apprentice at the wage rate orrates, lower than the minimum wage rate applicableunder Section 6 of the Fair Labor Standards Act,1

129 U. S. C. § 206.

Page 1182§ 516.19


specified in the apprenticeship agreement. Or, theapproving agency, on behalf of the employer, maysend the approved agreement or a true copy thereofto the Wage and Hour Division and request acertificate.

(b) The requirement of this section that the ap-proved apprenticeship agreement be sent to theWage and Hour Division with a request for issuanceof a special certificate need not be met in the caseof an apprenticeship agreement which has beenapproved and registered prior to January 25, 1950,with either (1) a local joint apprenticeship commit-tee, consisting of an equal number of representativesof employers and of labor, whose membership andprocedures have been recognized by a recognizedstate apprenticeship council (or authority), or ifno such council (or authority) exists in the state,by the Federal Committee on Apprenticeship; or (2)a state apprenticeship council (or corresponding ap-prenticeship authority) if such council (or author-ity) has been recognized by the Federal Committeeon Apprenticeship; or (3) the Bureau of Appren-ticeship In the U. S. Department of Labor; and suchapproved and registered agreement shall be deemeda certificate authorizing employers to employ ap-prentices at the wage rates and for the periodspecified in said agreement, until such time as suchauthorization is rescinded, revoked or otherwisemodified: Provided, however, That nothing con-tained herein shall relieve an employer from com-plying with the requirements of the act or the regu-lations in this part prior to January 25, 1950. (Asamended Dec. 14, 1949, 14 F. R. 7501; Dec. 30, 1949,14 F. R. 7885.)

§521.7. Cancelation of certificates.

A special certificate may be canceled for violationof any of the terms of the certificate, and also forgood cause to effectuate the provisions of section 14of the Fair Labor Standards Act.2 Before any cer-tificate is canceled, however, interested parties shallbe notified in writing of the facts warranting suchcancelation and afforded an opportunity to demon-strate or achieve compliance.

Part 522. EMPLOYMENT OF LEARNERS

GENERALSec.522.14. Application for renewal [New].

GENERAL

§ 522.2. Applications on official forms.

All applications must be made upon official formsfurnished on request by the Wage and Hour Divi-sion and must contain all information required bysuch forms. Such forms require to be set forth,among other things, a list of products upon whichand occupations in which learners are to be em-ployed, the number of learners hired during thepreceding 12 months, the number of learners re-quested, their proposed hourly rates, and learningperiod in number of hours, the number of experi-

29 U. S. C. § 214.

enced workers, the average hourly earnings of ex-perienced workers during the last payroll period, andthe number of productive factory workers for onepayroll period during each of the preceding 12months. Any application which fails to present theinformation required by the form will not be con-sidered by the Administrator or his authorized rep-resentative but will be returned to the applicantwith a notation of deficiencies and without prejudiceagainst submission of a new application. Any ap-plicant may also submit such additional informationas he may believe to be pertinent.

§ 522.3. Posting notice of application in plant.At the time of filing an application, the applicant

must post a notice thereof on a form supplied by theWage and Hour Division in a conspicuous place ineach department of his plant where he proposesto employ learners at wages lower than the mini-mum wage applicable under section 6 of the FairLabor Standards Act.' The notice must set forth,among other things, the number of learners that theemployer has requested permission to employ, theoccupations in which the learners will be employed,and a statement that experienced workers are notavailable, and that the employment of learners isnecessary to prevent a curtailment of opportunitiesfor employment. Such notice must contain all theinformation required therein and shall remainposted until such time as the application shall havebeen acted upon by the Administrator or his author-ized representative.

§ 522.6. Procedure for hearings; industry; individual

certificate.

Any hearing held pursuant to these regulationswill be conducted by the Administrator or an author-ized representative. A notice of the time, place andscope of such a hearing will be published in the Fed-eral Register and made public by a general pressrelease at least five days before the date of the hear-ing. The applicant shall in all cases be given noticeby registered mail of any hearing to be held for thepurpose of determining whether any special certifi-cate shall be cancelled. All persons interested,including employees, employee groups, labor organ-izations, employers, employer groups and tradeassociations will be afforded an opportunity to pre-sent evidence and to be heard. The Administratorshall issue a subpoena for attendance at such hear-ings to any party upon request and upon a showingof general relevance and reasonable scope of theevidence sought. The Administrator may, on hisown motion, or that of his authorized representative,cause to be brought before him or his authorizedrepresentative any witness whose testimony hedeems material to the matters in issue.

§ 522.12. Revision of regulations.

The Administrator may at any time, upon his ownmotion or upon written request of any interestedparty setting forth reasonable grounds therefor, andafter a hearing or other opportunity to interested

129 U. S. C. § 206.

Page 1183 § 522.12


persons to present their views, amend or revoke anyof the terms of this part or any industry regulationissued pursuant to § 522.4.

§ 522.14. Application for renewal.No certificate regularly scheduled to expire at the

end of the term specified in this part shall expireuntil an application for renewal, properly executedin accordance with the requirements of this part,and filed not less than 15 nor more than 30 days priorto the expiration date, shall have been finally de-termined.

Part 523. EMPLOYMENT OF MESSENGERSSec.523.12. Cancellation of certificate [New].

§ 523.6. Witnesses.The Administrator shall issue a subpoena for at-

tendance at such hearings to any party upon re-quest and upon a showing of general relevance andreasonable scope of the evidence sought. The Ad-ministrator may, on his own motion, or that of hisauthorized representative, cause to be brought be-fore him or his authorized representative any wit-ness whose testimony he deems material to the mat-ters in issue.

§ 523.11. Delegations of authority.

Whenever it shall appear that the review proce-dure provided in § 523.9 will cause undue delay inarriving at a determination or decision, the Adminis-trator may delegate the authority vested in the Ad-ministrator to make the determination or decision toeither of the Deputy Administrators. Action sotaken by such persons shall not be subject to reviewby the Administrator under § 523.9.

§ 523.12. Cancellation of certificate.Any certificate granted under this part may be

canceled for violation of any of the terms of the cer-tificate, and also for good cause to effectuate theprovisions of section 14 of the Fair Labor StandardsAct. Before any certificate is canceled, however, in-terested parties shall be notified in writing of thefacts warranting such cancellation and afforded anopportunity to achieve or demonstrate compliance.

Part 524. EMPLOYMENT OF HANDICAPPEDPERSONS

§ 524.2. Application on official forms.Such application shall be made upon official forms

of the Wage and Hour Division and shall be signedby both the handicapped worker and the employer.Such forms require to be set forth, among otherthings, a description of the job at which the employeeis to be employed, the nature of the handicap, thetotal number of handicapped and nonhandicappedpersons in the establishment and the number doingthe same type of work, the amount per hour the firmproposes to pay or guarantee the employee, thehourly earnings range and the average hourly earn-ings of nonhandicapped workers performing thesame type of work for the most recent four-weekperiod, and the actual earnings of the employee forthe most recent 12 weeks.

§ 524.8. Termination of certificates.Special certificates shall be valid under the terms

set out in the certificate for a period of not more than12 months from the date of issuance or such shorterperiod as may be fixed in the certificate. Applica-tion for renewal of any certificate shall be filed inthe same manner as an original application underthese regulations. Certificates in effect within theState of Pennsylvania, expiring on September 1, 1940,by their own terms or by action of the Administratorpublished in the Federal Register August 12, 1939,shall be subject to reexamination by a specially au-thorized representative of the Administrator, andmay be extended for not more than a 2 months'period under the same terms in the discretion ofsuch representative. No certificate regularly sched-uled to expire at the end of the term specified in thispart shall expire until an application for renewal,properly executed in accordance with the require-ments of this part, and filed not less than 15 nor morethan 30 days prior to the expiration date, shall havebeen finally determined.

§ 524.9. Revocation and cancellation.

Any special certificate may be revoked by the au-thorized regional representative for cause at anytime. Before any request or petition by any personor any proceeding for the cancellation or nullifica-tion of any special certificate for the employmentof a handicapped worker will be considered by theauthorized regional representative of the Adminis-trator, reasonable notice of the time when and placewhere such petition or request is to be consideredwill be sent by registered mail to the handicappedworker and his employer named in such special cer-tificate, at their last known address or addresses.Such notice shall state the facts warranting cancel-ation or nullification, and the parties shall be af-forded an opportunity to achieve or demonstratecompliance.

§ 524.14. Vocational rehabilitation by Veterans Admin-istration.

(e) Where unusual conditions necessitate a periodof employment-training at a subminimum wage ratein excess of one year, a renewal certificate may beissued by the Wage and Hour Division, United StatesDepartment of Labor, upon the application and rec-ommendation of the authorized representative ofthe Veterans Administration. No certificate regu-larly scheduled to expire at the end of the term speci-fied in this part shall expire until an application forrenewal, properly executed in accordance with therequirements of this part, and filed not less than 15nor more than 30 days prior to the expiration date,shall have been finally determined.

* S * * *

Part 525. EMPLOYMENT OF HANDICAPPEDCLIENTS IN SHELTERED WORKSHOPS

§525.3. Applications for sheltered workshop certifi-cates.

Notwithstanding any of the provisions of Part 524of the Administrator's Regulations Applicable to the

§ 522.14 Page 1184


Employment of Handicapped Persons (Title 29,Chapter V, Code of Federal Regulations) applica-tions may be filed with the Administrator by anycharitable organization or institution conducted notfor profit and engaged in commerce or in the pro-duction of goods for commerce, desiring to securea sheltered workshop certificate. Such applicationmust be made on official forms furnished for thepurpose by the Wage and Hour Division, and mustclearly set forth facts upon which a finding couldbe based that the applicant is in fact a shelteredworkshop within the meaning of these regulations.In addition to the information called for above, suchforms require to be set forth, among other things,the facilities furnished to the clients, the mainsources of clients, the main sources of revenue, anda financial statement.

§ 525.5. Records to be kept.

(a) Every sheltered workshop shall keep, maintain,and have available for inspection by the Adminis-trator or his authorized representative at all timesthe records required under § 516.9 of this chapter,and, in addition, a record of the nature and extentof each client's physical or mental deficiency or in-jury, as shown by medical certificate or other reliableevidence.

(b) For each home-bound handicapped client thesheltered workshop shall keep the records requiredunder § 516.11 of this chapter, and in such form asmay be approved by the Wage and Hour Division.

§ 525.7. Duration of sheltered workshop certificates.

No sheltered workshop certificate issued pursuantto section 525.4 shall be valid for longer than oneyear from the date of its issuance. Any shelteredworkshop certificate may be renewed by the Admin-istrator or his authorized representative upon thefiling of a renewal application. No certificate regu-larly scheduled to expire at the end of the termspecified in this part shall expire until an applica-tion for renewal, properly executed in accordancewith the requirements of this part, and filed not lessthan 15 nor more than 30 days prior to the expira-tion date, shall have been finally determined.

§ 525.9. Employment at less than shop wage rate.

Whenever it is desired to employ a handicappedclient at a wage rate less than the rate establishedin the sheltered workshop certificate, applicationmust be made on forms provided for the purposefor a special certificate authorizing the employmentof such handicapped client at a wage rate less thanthe rate established in the sheltered workshop cer-tificate. These forms will be furnished on requestby the Wage and Hour Division and require to be setforth, among other things, a description of the workprogram contemplated for this client, the nature ofhis handicap, certain medical information, a wageand hour schedule of the most recent 8 weeks' earn-ings of this client in the workshop and the minimumhourly rate that the workshop proposes to pay theclient. Such application must clearly establish thatthe earning capacity of the client in question for the

work he is to perform is in fact impaired by age orphysical or mental deficiency or injury to the extentthat it is necessary, in order to prevent curtailmentof opportunities for employment, to provide for hisemployment at a wage rate below that establishedin the sheltered workshop certificate. A medicalcertificate or other satisfactory evidence of theclient's handicap must accompany such an applica-tion.

§ 525.14. Revocation of shop certificates.

If it is found by the Administrator or his author-ized representative that any sheltered workshop hasviolated any of the provisions of the act or of theseregulations or any of the terms or conditions in anycertificate issued hereunder, or if the Administratoror his authorized representative, on the basis ofmore complete or subsequent data, has reason tobelieve that a sheltered workshop certificate shouldnot have been issued, or is no longer necessary toprevent curtailment of opportunities for employ-ment, the certificate or certificates previously issuedto the sheltered workshop may be cancelled. Anycertificate issued under these regulations may alsobe cancelled for cause. Before any certificate iscancelled the Advisory Committee on ShelteredWorkshops through a member or members dulydesignated by the committee shall be notified andreasonable notice of the time when, and place where,such action is to be considered will be sent byregistered mail to the parties named in such certifi-cate at their last known address or addresses andsuch parties afforded an opportunity to demonstrateor achieve compliance.

§ 525.17. Rescinded.

Part 526. INDUSTRIES OF A SEASONAL NATURE

Sec.526.8 [Petition for revision of terms] [New].

§ 526.5. Procedure upon application for exemption.

(a) Upon consideration of the facts and reasonsstated in an application, the Administrator may,without further proceedings, deny the application onthe ground that it fails to allege facts entitling theindustry to an exemption as a seasonal industry.

(b) Upon consideration of the facts and reasonsstated in an application, and upon such furtherinvestigation as may appear appropriate, the Ad-ministrator may either (i) set the application forhearing before the Administrator or his authorizedrepresentative; or (ii) notify the applicant of, andpublish in the Federal Register and by general pressrelease, a preliminary determination that a primafacie case for the granting of an exemption has beenshown. In the event that the Administrator deter-mines that a prima facie case for exemption has beenshown, the Administrator for 15 days following thepublication of his preliminary determination will re-ceive objection to the granting of the exemption andrequest for hearing from any person interested, in-cluding but not limited to employees, employeegroups, and employee labor organizations, within theindustry claimed to be exempt. Upon receipt of

Page 1185 § 526.5


objection and request for hearing, the Administratorwill set the application for hearing before the Ad-ministrator or an authorized representative. If noobjection and request for hearing is received within15 days, the Administrator will make a finding uponthe prima facie case. The exemption shall becomeeffective 30 days after publication in the FederalRegister, or at such time prior thereto as may beprovided therein upon good cause found and pub-lished therewith.

§ 526.6. Procedure where application for exemption setfor hearing.

(d) The Administrator shall issue a subpoena forattendance at such hearings to any party upon re-quest and upon a showing of general relevance andreasonable scope of the evidence sought. The Ad-ministrator may, on his own motion, or that of hisauthorized representative, cause to be brought beforehim or his authorized representative any witnesswhose testimony he deems material to the mattersin issue.

(e) The Administrator or his authorized repre-sentative, as the case may be, will make his findingupon the record made at the hearing. If the find-ing, made by the Administrator himself, is that theindustry in question is of a seasonal nature withinthe meaning of § 526.3, the exemption shall becomeeffective 30 days after publication in the FederalRegister, or at such time prior thereto as may beprovided therein upon good cause found and pub-lished therewith. If the finding is by an authorizedrepresentative of the Administrator, the further pro-cedure set forth in section 526.7 is applicable.

§ 526.7. Petition for review of finding by authorizedrepresentative.

Where hearing is had before an authorized repre-sentative of the Administrator, any person ag-grieved by the finding of such representative maywithin 15 days after the action of such representa-tive file a petition with the Administrator request-ing a review by the Administrator of the action ofthe representative upon the record of hearing beforethe representative. If the request for review isgranted, all interested parties will be afforded anopportunity to be heard either in support of, or inopposition to, the matters prayed for in the petition.A notice of the time and place and scope of thehearing will be published in the Federal Registerand made public by a general press release at least5 days before the date of such hearing.

If no such petition for review is filed within 15days, or if such petition is filed and subsequently isdenied by the Administrator, the finding of the au-thorized representative shall become final. If suchfinding is that the industry in question is of a sea-sonal nature within the meaning of section 526.3,the exemption shall become effective 30 days afterpublication in the Federal Register, or at such time

prior thereto as may be provided therein upon goodcause found and published therewith.

If a petition for review is granted and upon hear-ing the Administrator confirms a finding by the rep-resentative that the industry is of a seasonal naturewithin the meaning of § 526.3, or if the Adminis-trator, rejecting a finding by the representative tothe contrary, finds on the record that the industryis of a seasonal nature within the meaning of § 526.3,the exemption shall become effective 30 days afterpublication in the Federal Register, or at such timeprior thereto as may be provided therein upon goodcause found and published therewith.

§ 526.8. [Petition for revision of terms.]

Any person wishing a revision of any of the termsof §H 526.1-526.7 may submit in writing to the Ad-ministrator a petition setting forth the changesdesired and the reason for proposing them. If, afterconsideration of the petition, the Administrator be-lieves that reasonable cause for amendment of theregulations is set forth, he shall either schedule ahearing, with due notice to interested parties, orshall make other provision for affording interestedparties an opportunity to present their views, bothin support of and in opposition to the proposedchanges.

Part 536. DEFINING THE TERM "AREA OFPRODUCTION"

§ 536.1. "Area of production" as used in section 7 (c)of tle Fair Labor Standards Act.'

(a) An employer shall be regarded as engaged inthe first processing of any agricultural or horticul-tural commodity (other than Puerto Rican leaf to-bacco) during seasonal operations within the "areaof production" within the meaning of section 7 (c)if he is so engaged in an establishment which islocated in the open country or in a rural communityand in which such first processing is performed oncommodities 95% of which come from normal ruralsources of supply located not more than the follow-ing air-line distances from the establishment:

(1) With respect to grain, soybeans, eggs, or to-bacco-50 miles;

(2) With respect to any other agricultural or hor-ticultural commodities-20 miles.

(b) For the purposes of this section:(1) "Open country or rural community" shall not

include any city, town or urban place of 2,500 orgreater population or any area within:

(i) One air line mile of any city, town, or urbanplace with a population of 2,500 up to but not includ-ing 50,000, or

(ii) Three air line miles of any city, town or urbanplace with a population of 50,000 up to but not in-cluding 500,000, or

(ill) Five air line miles of any city with a popula-tion of 500,000 or greater according to the latestavailable United States Census.

229 U. S. C. § 207.

§ 526.6 Page 1186


(2) The commodities shall be considered to comefrom "normal rural sources of supply" within thespecified distances from the establishment if theyare received (I) from farms within such specifieddistances, or (ii) from farm assemblers or other es-tablishments through which the commodity custo-marily moves, which are within such specified dis-tances and located in the open country or in a ruralcommunity, or (iii) from farm assemblers or otherestablishments not located In the open country or ina rural community provided it can be demonstratedthat the commodities were produced on farms withinsuch specified distances.

(3) The period for determining whether 95% ofthe agricultural or horticultural commodities arereceived from normal rural sources of supply shall bethe last preceding calendar month in which opera-tions were carried on for two workweeks or more, ex-cept that until such time as an establishment hasoperated for such a calendar month the period shallbe the time during which it has been in operation.

(4) The percentage of commodities received fromnormal rural sources of supply within the specifieddistances shall be determined by weight, volume orother physical unit of measure, except that dollarvalue shall be used if different commodities receivedIn the establishment are customarily measured inphysical units that are not comparable.

§ 536.2. "Area of production" as used in section 13 (a)

(10) of the Fair Labor Standards Act.'

(a) An individual shall be regarded as employedIn the "area of production" within the meaning ofsection 13 (a) (10) in handling, packing, storing,ginning, compressing, pasteurizing, drying, prepar-ing in their raw or natural state, or canning of agri-cultural or horticultural commodities for market,or in making cheese or butter or other dairy prod-ucts:

(1) If the establishment where he is employed islocated in the open country or in a rural communityand 95 percent of the commodities on which suchoperations are performed by the establishment comefrom normal rural sources of supply located not morethan the following air line distances from the es-tablishment:

(i) With respect to the ginning of cotton-10miles;

(ii) With respect to operations on fresh fruits andvegetables-15 miles;

(iii) With respect to the storing of cotton and anyoperations on commodities not otherwise specifiedin this subsection-20 miles;

(iv) With respect to the compressing and com-press-warehousing of cotton, and operations on to-bacco (other than Puerto Rican leaf tobacco), grain,soybeans, poultry or eggs--50 miles; or

(2) With respect to Puerto Rican leaf tobacco, ifhe is engaged in piling, bulking, or otherwise han-dling unstripped tobacco for market in an establish-ment which is a first concentration point for suchtobacco; Provided, That employees engaged in strip-

129 U. S. C. § 213.

ping tobacco or engaged in piling, bulking, or other-wise handling stripped tobacco shall not be deemedto fall within this definition.

(b) For the purposes of this section:(1) "Open country or rural community" shall not

include any city, town or urban place of 2,500 orgreater population or any area within:

(1) One air line mile of any city, town, or urbanplace with a population of 2,500 up to but not in-cluding 50.000 or

(ii) Three air line miles of any city, town or urbanplace with a population of 50,000 up to but not in-cluding 500,000, or

(ill) Five airline miles of any city with a popula-tion of 500,000 or greater according to the latestavailable United States Census.

(2) The commodities shall be considered to comefrom "normal rural sources of supply" within thespecified distances from the establishment if theyare received (i) from farms within such specifieddistances, or (ii) from farm assemblers or other es-tablishments through which the commodity custom-arily moves, which are within such specified distancesand located in the open country or in a rural com-munity, or (iii) from farm assemblers or other es-tablishments not located in the open country or in arural community provided it can be demonstratedthat the commodities were produced on farms withinsuch specified distances.

(3) The period for determining whether 95 per-cent of the commodities are received from normalrural sources of supply shall be the last precedingcalendar month in which operations were carried onfor two work weeks or more, except that until suchtime as an establishment has operated for such a cal-endar month the period shall be the time duringwhich it has been in operation.

(4) The percentage of commodities received fromnormal rural sources of supply within the specifieddistances shall be determined by weight, volume orother physical unit of measure, except that dollarvalue shall be used if different commodities receivedin the establishment are customarily measured inphysical units that are not comparable.

(c) For the purposes of paragraph (a) (2) of thissection: "First concentration point" means a placewhere such tobacco is first assembled from nearbyfarms for such preparation for market but shall notinclude any establishment normally receiving a por-tion of the tobacco assembled from other concentra-tion points, nor any establishment operated by amanufacturer for the preparation of tobacco forhis own use in manufacturing.

Part 541. DEFINING AND DELIMITING THETERMS "ANY EMPLOYEE EMPLOYED IN ABONA FIDE EXECUTIVE, ADMINISTRATIVE,PROFESSIONAL, OR LOCAL RETAILING CA-PACITY, OR IN THE CAPACITY OF OUTSIDESALESMAN"

SUBPART A--GENERAL REGULATIONSSec.541.1 Executive.541.2 Administrative.541.3 Professional.

Page 1187 § 536.2


Sec.541.4 Local retailing capacity.541.5 Outside salesman.541.6 Petition for amendment or regulations.

AuTHoarry: §§ 541.1 to 541.6 issued under 52 Stat. 1067,as amended; 29 U. S. C. 213.

SUBPART A-GENERAL REGULATIONS

§ 541.1. Executive.

The term "employee employed in a bona fideexecutive * * * capacity" in section 13 (a) (1)of the act shall mean any employee:

(a) Whose primary duty consists of the manage-ment of the enterprise in which he is employed or ofa customarily recognized department or subdivisionthereof; and

(b) Who customarily and regularly directs thework of two or more other employees therein; and

(c) Who has the authority to hire or fire otheremployees or whose suggestions and recommenda-tions as to the hiring or firing and as to the advance-ment and promotion or any other change of statusof other employees will be given particular weight;and

(d) Who customarily and regularly exercises dis-cretionary powers; and

(e) Who does not devote more than 20 percentof his hours worked in the workweek to activitieswhich are not directly and closely related to theperformance of the work described in paragraphs(a) through (d) of this section: Provided, That thisparagraph shall not apply in the case of an employeewho is in sole charge of an independent establish-ment or a physically separated branch establish-ment, or who owns at least a 20-percent interest inthe enterprise in which he is employed; and

(f) Who is compensated for his services on asalary basis at a rate of not less than $55 per week(or $30 per week if employed in Puerto Rico or theVirgin Islands) exclusive of board, lodging, or otherfacilities:

Provided, That an employee who is compensatedon a salary basis at a rate of not less than $100 perweek (exclusive of board, lodging, or other facili-ties), and whose primary duty consists of the man-agement of the enterprise in which he is employedor of a customarily recognized department or subdi-vision thereof, and includes the customary and regu-lar direction of the work of two or more otheremployees therein, shall be deemed to meet all ofthe requirements of this section. (As amended Dec.23, 1949, 14 F. R. 7705.)

§ 541.2. Administrative.

The term "employee employed in a bonafide * * * administrative * * * capacity" insection 13 (a) (1) of the act shall mean anyemployee:

(a) Whose primary duty consists of the perform-ance of office or nonmanual field work directlyrelated to management policies or general businessoperations of his employer or his employer's custo-mers; and

(b) Who customarily and regularly exercises dis-cretion and independent judgment; and

(c) (1) Who regularly and directly assists a pro-prietor, or an employee employed in a bona fideexecutive or administrative capacity (as such termsare defined in the regulations in this subpart), or

(2) Who performs under only general supervisionwork along specialized or technical lines requiringspecial training, experience or knowledge, or

(3) Who executes under only general supervisionspecial assignments and tasks; and

(d) Who does not devote more than 20 percent ofhis hours worked in the workweek to activitieswhich are not directly and closely related to theperformance of the work described in paragraphs (a)through (c) of this section; and

(e) Who is compensated for his services on asalary or fee basis at a rate of not less than $75per week (or $200 per month if employed in PuertoRico or the Virgin Islands) exclusive of board, lodg-ing, or other facilities:

Provided, That an employee who is compensatedon a salary or fee basis at a rate of not less than $100per week (exclusive of board, lodging, or other facili-ties), and whose primary duty consists of the per-formance of office or nonmanual field work directlyrelated to management policies or general businessoperations of his employer or his employer's custo-mers, which includes work requiring the exercise ofdiscretion and independent judgment, shall bedeemed to meet all of the requirements of thissection. (As amended Dec. 23, 1949, 14 F. R. 7705.)

§ 541.3. Professional.The term "employee employed in a bona

fide * * * professional * * * capacity" insection 13 (a) (1) of the act shall mean anyemployee:

(a) Whose primary duty consists of the perform-ance of work:

(1) Requiring knowledge of an advanced type ina field of science or learning customarily acquiredby a prolonged course of specialized intellectual in-struction and study, as distinguished from a generalacademic education and from an apprenticeship,and from training in the performance of routinemental, manual, or physical processes, or

(2) Original and creative in character in a recog-nized field of artistic endeavor (as opposed to workwhich can be produced by a person endowed withgeneral manual or intellectual ability and training),and the result of which depends primarily on theinvention, imagination, or talent of the employee;and

(b) Whose work requires the consistent exerciseof discretion and judgment in its performance; and

(c) Whose work is predominantly intellectual andvaried in character (as opposed to routine mental,manual, mechanical, or physical work) and is ofsuch a character that the output produced or theresult accomplished cannot be standardized in rela-tion to a given period of time; and

(d) Who does not devote more than 20 percentof his hours worked in the workweek to activitieswhich are not an essential part of and necessarilyincident to the work described in paragraphs (a)through (c) of this section; and

§ 541.1 Page 1188


(e) Who is compensated for his services on asalary or fee basis at a rate of not less than $75per week (or $200 per month if employed in PuertoRico or the Virgin Islands) exclusive of board, lodg-ing, or other facilities: Provided, That this para-graph shall not apply in the case of an employee whois the holder of a valid license or certificate per-mitting the practice of law or medicine or any oftheir branches and who is actually engaged in thepractice thereof:

Provided, That an employee who is compensatedon a salary or fee basis at a rate of not less than$100 per week (exclusive of board, lodging, or otherfacilities), and whose primary duty consists of theperformance of work either requiring knowledge ofan advanced type in a field of science or learning,which includes work requiring the consistent exer-cise of discretion and judgment, or requiring inven-tion, imagination, or talent in a recognized field ofartistic endeavor, shall be deemed to meet all ofthe requirements of this section. (As amended Dec.23, 1949, 14 P. R. 7705.)

§ 541.4. Local retailing capacity.The term "employee employed in a bona fide

* * * local retailing capacity" in section 13 (a)(1) of the act shall mean any employee:

(a) Who customarily and regularly is engaged in:(1) Making retail sales of goods or services of

which more than 50 percent of the dollar volume aremade within the State where his place of employ-ment is located, or

(2) Performing work immediately incidentalthereto, such as the wrapping or delivery of pack-ages; and

(b) Whose hours of work of a nature other thanthat described in paragraphs (a) (1) or (a) (2) ofthis section do not exceed 20 percent of the hoursworked in the workweek by nonexempt employees ofthe employer. (As amended Dec. 23, 1949, 14 F. R.7705.)

§ 541.5. Outside salesman.The term "employee employed In the

capacity of outside salesman" in section 13 (a) (1)of the act shall mean any employee:

(a) Who is employed for the purpose of and who iscustomarily and regularly engaged away from hisemployer's place or places of business in:

(1) Making sales within the meaning of section 3(k) of the act, or

(2) Obtaining orders or contracts for services orfor the use of facilities for which a consideration willbe paid by the client or customer; and

(b) Whose hours of work of a nature other thanthat described in paragraphs (a) (1) or (a) (2) ofthis section do not exceed 20 percent of the hoursworked in the workweek by nonexempt employees ofthe employer: Provided, That work performed in-cidental to and in conjunction with the employee'sown outside sales or solicitations, including inciden-tal deliveries and collections, shall not be regarded asnonexempt work. (As amended Dec. 23, 1949, 14P. R. 7705.)

§ 541.6. Petition for amendment of regulations.

Any person wishing a revision of any of the termsof the foregoing regulations may submit in writingto the Administrator a petition setting forth thechanges desired and the reasons for proposing them.If, upon inspection of the petition, the Administra-tor believes that reasonable cause for amendment ofthe regulations is set forth, the Administrator willeither schedule a hearing with due notice to in-

terested parties, or will make other provision foraffording interested parties an opportunity to pre-sent their views, either in support of or in oppositionto the proposed changes. In determining such futureregulations, separate treatment for different indus-tries and for different classes of employees may begiven consideration. (As amended Dec. 23, 1949, 14F. R. 7709.)

Page 1189 § 541.6

title 29.-labor, appendix - tile.loc.gov · national labor relations act, 49 stat. 449, as amend-ed...

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