§ 102.125 Action on petition.

Upon the filing of such petition, the Board shall consider the same and may thereupon either grant or deny the petition in whole or in part, conduct an appropriate hearing thereon, or make other disposition of the petition. Should the petition be denied in whole or in part, prompt notice shall be given of the denial, accompanied by a simple statement of the grounds unless the denial is self-explanatory.

Subpart P-Ex Parte Communications

SOURCE: The provisions of this Subpart P appear at 31 F.R. 13850, Oct. 28, 1966; 31 F.R. 14394, Νον. 9, 1966, unless otherwise noted.

§ 102.126 Unauthorized communications.

No person who is a party to, an agent of a party to, or who intercedes in, an onthe-record proceeding of the types defined in § 102.128, shall make an unauthorized ex parte communication to Board agents of the categories designated in that section, concerning the dispesition on the merits of the substantive and procedural issues in the proceeding.

§ 102.127 Definitions.

When used in this subpart:

(a) The term "person who is a party," to whom the prohibitions apply, shall include any individual outside this agency (whether in public or private life), partnership, corporation, association, or other entity, who is named or admitted as a party or who seeks admission as a party, and the general counsel or his representatives when prosecuting an unfair labor practice proceeding before the Board pursuant to section 10(b) of the act.

(b) The term "person who intercedes," to whom the prohibitions apply, shall include any individual outside this agency (whether in public or private life), partnership, corporation, association, or other entity, other than a party or an agent of a party, who volunteers a communication which he may be expected to know may advance or adversely affect the interests of a particular party to the proceeding, whether or not he acts with the knowledge or consent of any party or any party's agent.

[24 F.R. 9102, Nov. 7, 1959, as amended at 32 F.R. 8406, June 13, 1967]

ceedings; categories of Board agents; and duration of prohibition.

Unless otherwise provided by specific order of the Board entered in the proceeding, the prohibition of § 102.126 shall be applicable in the following types of on-the-record proceedings to unauthorized ex parte communications made to the designated categories of Board agents who participate in the decision, from the stage of the proceeding specified until the issues are finally resolved by the Board for the purposes of that proceeding under prevailing rules and practices:

(a) In a preelection proceeding pursuant to section 9 (c) (1) or 9(e), or in a unit clarification or certification amendment proceeding pursuant to section 9(b), of the Act, in which a formal hearing is held, communications to the regional director and members of his staff who review the record and prepare a draft of his decision, and members of the Board and their legal assistants, from the time the hearing is opened.

(b) In a postelection proceeding pursuant to section 9(c) (1) or 9(e) of the Act, in which a formal hearing is held, communications to the hearing officer, the regional director and members of his staff who review the record and prepare a draft of his report or decision, and members of the Board and their legal assistants, from the time the hearing is opened.

(c) In a postelection proceeding pursuant to section 9(c) (1) or 9(e), or in a unit clarification or certification amendment proceeding pursuant to section 9(b), of the Act, in which no formal hearing is held, communications to members of the Board and their legal assistants, from the time the regional director's report or decision is issued.

(d) In a proceeding pursuant to section 10(k) of the Act, communications to members of the Board and their legal assistants, from the time the hearing is opened.

(e) In an unfair labor practice proceeding pursuant to section 10(b) of the Act, communications to the trial examiner assigned to hear the case or to make rulings upon any motions or issues therein and members of the Board and their legal assistants, from the time the complaint is issued.

(f) In any other proceeding to which the Board by specific order makes the prohibition applicable, to the categories of personnel and from the stage of the proceeding specified in the order. [24 F.R. 9102, Nov. 7, 1959, as amended at 32 F.R. 8406, June 13, 1967]

§ 102.129 Communications prohibited. Except as provided in § 102.130 ex parte communications prohibited by §102.126 shall include:

(a) Such communications, when written, if copies thereof are not contemporaneously served by the communicator on all parties to the proceeding in accordance with the provisions of § 102.112.

(b) Such communications, when oral, unless advance notice thereof is given by the communicator to all parties in the proceeding and adequate opportunity afforded to them to be present.

§ 102.130 Communications not prohibited.

Ex parte communications prohibited by § 102.126 shall not include:

(a) Oral or written communications which relate solely to matters which the hearing officer, regional director, trial examiner, or member of the Board is authorized by law or Board rules to entertain or dispose of on an ex parte basis.

(b) Oral or written requests for information solely with respect to the status of a proceeding.

(c) Oral or written communications which all the parties to the proceeding agree, or which the responsible official formally rules, may be made on an ex parte basis.

(d) Oral or written communications proposing settlement or an agreement for disposition of any or all issues in the proceeding.

(e) Oral or written communications which concern matters of general significance to the field of labor-management relations or administrative practice and which are not specifically related to pending on-the-record proceedings. § 102.131

agents.

Communications by Board

No Board agent of the categories defined in § 102.128, participating in a particular proceeding as defined in that section, shall (a) request or entertain any prohibited ex parte communications; or (b) make any prohibited ex parte communications about the proceeding to any person who is a party to the proceeding, any agent of any person who is a party, or any other person, whom he has reason

to know may transmit the communication to a person who is a party or to an agent of a person who is a party.

§ 102.132 Solicitation of prohibited communications.

No person shall knowingly and willfully solicit the making of an unauthorized ex parte communication by any other person.

§ 102.133 Receipt of prohibited communications; reporting require

ments.

(a) Any Board agent of the categories defined in § 102.128 to whom a prohibited oral ex parte communication is attempted to be made shall refuse to listen to the communication, inform the communicator of this rule, and advise him that if he has anything to say it should be said in writing with copies to all parties. Any such Board agent who receives a written ex parte communication which he has reason to believe is prohibited by this subpart shall promptly forward such communication to the Office of the Executive Secretary if the proceeding is then pending before the Board, to the chief trial examiner if the proceeding is then pending before a trial examiner, or to the regional director involved if the proceeding is then pending before a hearing officer or the regional director. If the circumstances in which the unauthorized communication was made are not apparent from the communication itself, a statement describing those circumstances shall also be submitted. The executive secretary, the chief trial examiner, or the regional director to whom such a communication is forwarded shall then place the communication in the public file maintained by the agency and shall serve copies of the communication on all other parties to the proceeding and attorneys of record for the parties. Within 10 days after the mailing of such copies, any party may file with the executive secretary, the chief trial examiner, or regional director serving the communication, and serve on all other parties, a statement setting forth facts or contentions to rebut those contained in the unauthorized communication.

(b) Upon appropriate motion to the regional director, the trial examiner, or the Board, before whom the proceeding is pending, under circumstances in which such presiding authority shall determine that the dictates of fairness so require, the unauthorized communication and

:

response thereto may be made part of the record of the proceeding, and provision made for any further action, including reopening of the record, which may be required under the circumstances. No action taken pursuant to this provision shall constitute a waiver of the power of the Board to impose an appropriate penalty under § 102.134.

§102.134 Penalties and enforcement.

Upon notice and hearing, the Board may censure, suspend, or revoke the privilege of practice before the agency of any person who knowingly and willfully makes or solicits the making of a prohibited ex parte communication. To the extent permitted by law, the Board may, under appropriate circumstances, deny or limit remedial measures otherwise available under the act to any party who shall, directly or indirectly, knowingly and willfully make or solicit the making of an unauthorized communication. However, before the Board institutes formal proceedings under this section, it shall first advise the person or persons concerned in writing that it proposes to take such action and that they may show cause, within a period to be stated in

such written advice, but not less than 7 days from the date thereof, why it should not take such action. The Board may censure, or, to the extent permitted by law, suspend, dismiss, or institute proceedings for the dismissal of, any Board agent who knowingly and willfully violates the prohibitions and requirements of this rule.

(32 F.R. 8406, June 13, 1967]

PART 103-OTHER RULES 1

Subpart A-Jurisdictional Standards

§ 103.1 Colleges and universities.

The Board will assert its jurisdiction in any proceeding arising under sections 8, 9, and 10 of the Act involving any private nonprofit college or university which has a gross annual revenue from all sources (excluding only contributions which, because of limitation by the grantor, are not available for use for operating expenses) of not less than $1 million.

[35 F.R. 18370, Dec. 3, 1970]