Sec.

25.7 Fees; cost; expenses; decisions. 25.8 Construction of rules.

AUTHORITY: The provisions of this Part 25 issued under sec. 11, E.O. 10988, 3 CFR 1959-1963 Comp. p. 521.

SOURCE: The provisions of this Part 25 appear at 28 F.R. 9941, Sept. 13, 1963, unless otherwise noted.

§ 25.1 Purpose and scope.

These procedures govern the nomination of arbitrators by the Secretary to perform the advisory functions specified under section 11 of Executive Order 10988. Any arbitrators so nominated will be available for either or both of the following purposes: (a) To investigate the facts and issue an advisory decision with respect to the appropriateness of a unit of Federal employees for the purpose of exclusive recognition and as to related issues submitted for consideration; or (b) to determine and advise whether an employee organization represents a majority of employees in an appropriate unit by conducting or supervising an election (wherein a majority of those voting, provided there is a representative vote, cast their ballots for or against representation), or by other appropriate means. A request for a nomination will be considered as contemplating the performance of functions within the above categories if it specifies as a purpose obtaining an advisory decision on one or more questions involved in a unit determination or determination of majority status, such as an advisory decision on the eligibility of voters or the right to appear on the ballot, arising in connection with an election to be held, or on a question relating to matters affecting the results of an election which took place afer the agreement to conduct the election had been entered into, provided such conduct materially affected the results of the election. Subject to compliance with these procedures, the Secretary will nominate an arbitrator whenever he is so requested by an agency or by an employee organization which is seeking recognition as the exclusive representative of Federal employees in a prima facie appropriate unit and which meets all the prerequisites for seeking such recognition.

When used in these procedures, (a) "Order" means Executive Order No. 10988;

(b) "Agency", "employee organization", and "employee" have the same meaning as in the Order;

(c) "Recognition" means recognition which is or may be accorded to an employee organization pursuant to the provisions of the Order;

(d) "Secretary" means the Secretary of Labor.

§ 25.3 Requests for nomination of arbi. trators: filing, disputes, parties, time. (a) Requests for nominations should be filed only where there exists a dispute or problem which cannot more appropriately be resolved through regular agency procedures. Parties, therefore, are expected to eliminate from their requests matters not necessary to the resolution of such dispute or problem and to use their best efforts to secure agreement on as many issues as possible before making the request.

(b) Requests for nominations may be filed either by an agency, or by an employee organization as described in § 25.1, or jointly by an agency and one or more employee organizations. Joint requests are encouraged.

(c) Subject to the provisions of paragraph (a) of this section, the Secretary will entertain on its merits a request by an employee organization for nomination of an arbitrator on a question of unit determination which is made within 30 days after receipt of an agency's final unit determination or 75 days after an appropriate request for exclusive recognition and no final unit determination has been received from the agency, provided the organization has observed any reasonable time limits established by the agency for the processing of such requests within the agency. The Secretary will entertain on its merits a request by an employee organization for nomination of an arbitrator on a question of majority representation which is made within 15 days after an agency's decision with respect to a determination of majority representation. Any request by an employee organization for the nomi

nation of an arbitrator will be considered untimely if:

(1) A written request for exclusive recognition was not made prior to the grant of such recognition to another organization provided such grant was preceded by posted notice to all employees in the unit and written notice to all organizations known to represent such employees that a request for exclusive recognition was under consideration.

(2) A written request for exclusive recognition was not made within 5 days after the agency posted appropriate notice of its intention to conduct an election to determine majority status, or more than 10 days before the date of the election.

(3) It was made less than 12 months after an agency's final unit determination with respect to such unit or subdivision thereof in a proceeding in which the organization sought exclusive recognition but failed to file a timely request for arbitration under these rules.

(4) It was made less than 12 months after a unit determination following a section 11 proceeding covering such unit or any subdivision thereof.

(5) The time limits set forth in this paragraph will be applied to all requests filed on or after October 15, 1963.

(d) No request contemplating an advisory determination as to whether an employee organization should become or continue to be recognized as the exclusive representative of employees in any unit will be entertained if the request is filed within 12 months after a prior determination of exclusive status has been made pursuant to the Order with respect to such unit unless the agency has withdrawn exclusive recognition from an employee organization by reason of its failure to maintain its compliance with sections 2 and 3(a) of the Order or with the Standards of Conduct for Employee Organizations and Code of Fair Labor Practices and the agency advises the Secretary that it has no objection to a new determination of exclusive representation being made within the 12-month period.

(e) No request contemplating an advisory determination as to whether an employee organization should become or continue to be recognized as the exclusive representative of employees in any unit will be entertained during the period within which a signed agreement

between an agency and an employee organization is in force or awaiting approval at a higher management level, but not to exceed an agreement period of two years, unless (1) a request for redetermination is filed with the agency between the 90th and 60th day prior to the terminal date of such agreement or two years, whichever is earlier, or (2) unusual circumstances exist which will substantially affect the unit or the majority representation. When an agreement has been extended more than 60 days before its terminal date, such extension shall not serve as a basis for the denial of a request under this section submitted in accordance with the time limitations provided above.

[28 F.R. 9941, Sept. 13, 1963, as amended at 29 F.R. 11972, Aug. 21, 1964]

(1) The name of the agency and the name and address of any office or branch of the agency below the national level that may be involved;

(2) A description of the unit appropriate for exclusive representation or claimed to be appropriate for such representation;

(3) The number of employees in the appropriate unit or any alleged appropriate unit;

(4) If the request is by an employee organization, the name, affiliation, if any, and address of the organization and the names, if known, of all other employee organizations claiming exclusive recognition, or having requested or attained formal or informal recognition with respect to any of the employees in the unit involved;

(5) If the request is by an agency, the names, affiliation, if any, and addresses of the employee organization or organizations claiming exclusive recognition and of any employee organization which has requested or attained formal or informal recognition with respect to any of the employees in the unit involved;

(6) A brief statement indicating specifically the matter or matters with respect to which an advisory decision or determination is sought;

1 Requests should be on forms which will be supplied by the Secretary upon request.

(7) A brief statement of procedures followed by and before the agency prior to the request, two copies of any appropriate agency determination and two copies of all correspondence relating to the dispute or problem;

(8) If the request is made by an employee organization, an indication of the interest of such organization, including information or data such as membership lists, employee petitions or dues records showing prima facie that the organization has sufficient membership to qualify for formal recognition, and that it represents no less than 30 percent of the employees, in the appropriate unit or alleged appropriate unit; and

(9) Any other relevant facts.

(b) A party making a request shall furnish copies to all other parties or organizations listed in the request in compliance with paragraph (a) of this section; except that membership lists, employee petitions or dues records need not be furnished by the requesting employee organization to the other parties or organizations.

(c) Any employee organization claiming to have an interest in the matter or matters to be considered by an arbitrator as to the appropriateness of a unit or majority representation must have advised the agency of its position, in the manner prescribed by the agency's rules, and must have satisfied all of the requirements of section 5 of the Order and paragraph (a) (8) of this section; except that, any employee organization which has satisfied all of the requirements of section 5 of the Order except for the 10 percent membership requirement shall be entitled to receive notice of the proceeding and to participate therein if it represents at least two members and/or is designated by at least two employees as their representative in the unit alleged to be appropriate by the employee organization seeking exclusive recognition or the unit alleged to be appropriate by the agency, provided, however, that such intervening employee organization may not request a unit different than that sought by the employee organization seeking exclusive recognition or the unit claimed to be appropriate by the agency.

(d) Within fifteen (15) days following the receipt of a copy of any request for a nomination filed with the Secretary, the agency or any employee organization may file a response thereto with the Sec

retary, raising any matter which is relevant to the request including the adequacy of the showing of interest and the appropriateness of the unit under terms of the Order or these procedures. A copy of any response shall be furnished to other parties and organizations listed in the request, in the manner provided in paragraph (b) of this section.

§ 25.5

Action to be taken by the Secretary; nomination and selection.

(a) Upon receipt of a request and the responses, if any, the Secretary shall make such further inquiries as may be necessary to determine his authority under the Order and these procedures; whether a timely request for nomination has been made; whether a valid question concerning representation exists in a prima facie appropriate unit; or for the purpose of obtaining a further specification of the issues or matters to be submitted for an advisory decision or determination, or assisting or advising the persons nominated or considered for nomination or otherwise facilitating submission of the matter to such person or persons in a manner that will permit an expeditious decision or determination.

(b) The Secretary will determine the adequacy of the showing of interest administratively, and such determination shall not be subject to collateral attack at a hearing before an arbitrator.

(c) The Secretary shall nominate not less than three arbitrators. Within 5 days the parties may indicate their order of preference from among those nominated. The Secretary will thereafter make a selection from among the nominees listed.

§ 25.6

Time; additional time after service by mail.

(a) In computing any period of time prescribed or allowed by the rules of this part, the date of the act, event, or default after which the designated period of time begins to run, is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or a Federal legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a Federal legal holiday. When the period of time prescribed, or allowed, is less than 7 days, Intermediate Saturdays, Sundays and holidays shall be excluded from the computations. Whenever a party has the right or is required to do some act or

take some other proceedings within a prescribed period after service of a notice or other paper upon the Secretary or a party and the notice is served upon him by mail, 3 days shall be added to the prescribed period: Provided, however, That 3 days shall not be added if any extension of such time may have been granted.

(b) When these rules require the filing of any paper, such document must be received by the Secretary or a party before the close of business of the last day of the time limit, if any, for such filing or extension of time that may have been granted.

§ 25.7 Fees; cost; expenses;

decisions.

(a) Arbitrator's fees, per diem and travel expenses, and election expenses for notices, ballots, postage, rentals, assistance, etc., shall be borne entirely by the agency.

(b) The standard fee for the services of an arbitrator should be $100 per day. Travel and per diem should be paid at the maximum rate payable to Government employees under the Standardized Government Travel Regulations.

(c) The agency should provide the arbitrator with a copy of the transcript of testimony taken at the hearing, such transcript to be returned to the agency upon the issuance of the arbitrator's advisory decision.

(d) Costs involving assistance rendered by the Secretary's Office in connection with advisory decisions or determinations under section 11 of the order shall be limited to per diem, travel expenses and services on a time-worked basis.

(e) Upon request, the Secretary will make available copies of advisory decisions of arbitrators.

AUTHORITY: The provisions of this Part 26 issued under sec. 1577, 80 Stat. 1017; 10 U.S.C. 1577.

SOURCE: The provisions of this Part 26 appear at 32 F.R. 7207, May 13, 1967, unless otherwise noted.

§ 26.1 Purpose and scope.

(a) Public Law 89-690 amends Part II of Subtitle A of Title 10, United States Code, in that it authorizes the award of Exemplary Rehabilitation Certificates to any person discharged or dismissed from the Armed Forces under conditions other than honorable, or who received a general discharge, upon his being able to establish that he has rehabilitated himself, and that his character, conduct, activities, and habits since he was so discharged or dismissed have been exemplary for at least 3 years.

(b) The Act does not affect, change, or supersede the previous discharge in any way, nor would it allow any veterans' benefits to which the individual would not otherwise be entitled. It would allow these persons to receive special counseling and job development assistance through the national system of public employment offices.

§ 26.2 Application for certificate.

Any person desiring to apply for an Exemplary Rehabilitation Certificate may do so by filing an application form prescribed by the Department of Labor. The form may be obtained from and should be filed with:

Bureau of Employment Security, U.S. Department of Labor, Washington, D.C. 20210, Attention: XRC.

of fingerprints to be used for positive identification purposes;

(d) List all prior addresses for the preceding 3 years, in order that certified statements from chief law enforcement officers of towns, cities, or counties in which the applicant has resided may be received attesting to his general reputation, so far as police and court records are concerned;

(e) Provide notarized or witnessed statements from not less than 5 persons, other than relatives, attesting that they have personally known him for at least the 3 years preceding the date of application as a person of good reputation and exemplary conduct, and the extent of personal contact they have had with him.

§ 26.4 Consideration for issuance of

certificate.

(a) The Administrator of the Manpower Administration or his authorized representative may consider an application for, and issue to that person, an Exemplary Rehabilitation Certificate if it is established to his satisfaction that such person has rehabilitated himself, that his character is good, and that his conduct, activities and habits since he was discharged or dismissed have been exemplary for a reasonable period of time, but not less than 3 years prior to the date of application.

(b) The Administrator shall supply a copy of each such Exemplary Rehabilitation Certificate which is issued, to the Secretary of Defense, who shall place such copy in the military personnel record of the individual to whom the certificate is issued.

[32 F.R. 7207, May 13, 1967, as amended at 35 F.R. 532, Jan. 15, 1970]

§ 26.5 Matters to be considered.

Matters to be considered in determining whether a Certificate is to be issued may include the following:

(a) All material submitted in accordance with § 26.3;

(b) The nature of the previous discharge and the reasons for it;

(c) The certified statements received from the chief law enforcement officers in the applicant's locale, as to his conduct for the previous 3 years;

(d) Federal Bureau of Investigation reports obtained through examination of the applicant's fingerprints;

(e) Such independent investigation as the Administrator may make, or as may

50-065-71- 8

(a) If the Administrator of the Manpower Administration or his authorized representative has reason to deny an application for an Exemplary Rehabilitation Certificate, he shall send the applicant a proposal to deny the certificate together with a statement of the reasons therefor.

(b) Within 30 days following the issuance of a proposed denial, the applicant may request that further consideration be given to the matter. Such request shall be mailed to the Administrator, Manpower Administration, U.S. Department of Labor, Washington, D.C. 20210 Attention: XRC. It shall state the reasons why he feels the proposed denial is improper and may include any documents which he may wish to have considered. If the applicant wishes to appear in person or by counsel regarding this matter, he should so state in his request and should indicate whether he wishes to be heard in Washington, D.C., or at the nearest regional office of the U.S. Department of Labor. Thereafter, he will be notified of the time and place at which he will be heard and the officer who will hear the applicant's presentation and make recommendations to the Administrator.

(c) If no request for further consideration is made in accordance with paragraph (b) of this section, the proposed denial shall become the final action of the Department of Labor.

(d) Following the close of these proceedings, the entire record shall be considered and the Administrator will make his final decision which shall be transmitted to the applicant. The Administrator's final decision shall be subject to review only by the Secretary of Labor. Requests for such review must be submitted in writing to the Secretary of Labor, U.S. Department of Labor, Washington, D.C. 20210, not more than 30 days following the issuance of the Administrator's decision.

[32 F.R. 7207, May 13, 1967, as amended at 35 F.R. 532, Jan. 15, 1970]