§ 2422.35 How do representation proceedings change when the Authority lacks a quorum?
(a) When the Authority lacks a quorum. The Authority lacks a quorum when the Authority has one or zero Members. The provisions of this section apply to proceedings that arise when the Authority lacks a quorum, consistent with section I.C. of appendix B to 5 CFR chapter XIV.
(b) Withdrawal/dismissal of a petition less than sixty (60) days before contract expiration. (1) Instead of § 2422.14(a), this paragraph (b) applies to proceedings that arise when the Authority lacks a quorum.
(2) If you withdraw a timely filed petition seeking an election, including a decertification election, or the FLRA dismisses the petition less than sixty (60) days before the existing agreement between the incumbent exclusive representative and the agency or activity expires, or any time after the agreement expires, another petition from you that seeks an election will not be considered timely if filed within a ninety (90) day period beginning with either:
(i) The date on which the FLRA approves the withdrawal; or
(ii) The date on which the Authority dismisses the petition; or
(iii) The date on which the Regional Director dismisses the petition when the Authority does not receive an application for review; or
(iv) The date on which the Authority rules on an application for review.
(3) Other pending petitions that have been timely filed under this part will continue to be processed.
(c) No interlocutory appeal of hearing determination. No party may file an interlocutory appeal with the Authority concerning a Regional Director's determination of whether to issue a Notice of Hearing.
(d) Appeal of Regional Director's Decision and Order. A party may file with the Authority an application for review of a Regional Director's Decision and Order.
(e) Contents of the record for appeal. All material submitted to, and considered by, the Regional Director during an investigation becomes part of the record. In addition, when a hearing has been held, the transcript and all material entered in evidence, as well as any posthearing briefs, become part of the record.
(f) Filing an application for review. A party must file an application for review with the Authority within sixty (60) days of a Regional Director's Decision and Order. The sixty (60) day time limit under 5 U.S.C. 7105(f) may not be extended or waived. The filing party must serve a copy on the Regional Director and all other parties, and must also file a statement of service with the Authority.
(g) Contents of the application for review. An application for review must be sufficient for the Authority to rule on the application without looking at the record. However, the Authority may, in its discretion, examine the record in evaluating the application. An application must specify the matters and rulings to which exception is taken, include a summary of evidence relating to any issue raised in the application, and cite specific pages in the transcript if a hearing was held. An application may not raise any issue or rely on any facts not timely presented to the Hearing Officer or Regional Director.
(h) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error; or
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
(i) Opposition. A party may file with the Authority an opposition to an application for review within ten (10) days after the party is served with the application. An opposition may not raise any issue or rely on any facts not timely presented to the Hearing Officer or Regional Director. The opposing party must serve a copy on the Regional Director and all other parties, and must also file a statement of service with the Authority.
(j) Regional Director's Decision and Order becomes the Authority's action. A Decision and Order of a Regional Director becomes the action of the Authority when:
(1) No party files an application for review with the Authority within sixty (60) days after the date of the Regional Director's Decision and Order; or
(2) A party files a timely application for review with the Authority and, while the Authority has a quorum, the Authority does not undertake to grant review of the Regional Director's Decision and Order within sixty (60) days; or
(3) A party files a timely application for review with the Authority and, after the Authority regains a quorum, the Authority denies an application for review of the Regional Director's Decision and Order.
(k) Authority grant of review and stay. The Authority may rule on the issue(s) in an application for review in its order granting the application for review. Neither a party filing, nor the Authority granting, an application for review will stay any action ordered by the Regional Director unless specifically ordered by the Authority.
(l) Briefs if review is granted. If the Authority does not rule on the issue(s) in the application for review in its order granting review, the Authority may, in its discretion, give the parties an opportunity to file briefs. The briefs will be limited to the issue(s) referenced in the Authority's order granting review. A party filing such a brief must serve a copy on the Regional Director and all other parties, and must also file a statement of service with the Authority.
(m) Service of process and Regional Directors' Decisions and Orders. Decisions and Orders of Regional Directors are subject to the requirements of § 2429.12(a), (b), and (c) of this subchapter.
(n) Certifications. Instead of § 2422.32(a), this paragraph (n) applies to proceedings that arise when the Authority lacks a quorum. The Regional Director issues an appropriate certification when:
(1) After an election, runoff, or rerun,
(i) No party files an objection or challenged ballots are not determinative, or
(ii) The Regional Director decides and resolves objections and determinative challenged ballots; or
(2) The Regional Director issues a Decision and Order requiring a certification, and the Decision and Order becomes the action of the Authority under paragraph (j) of this section; or
(3) The Authority directs the issuance of a certification.
[91 FR 13945, Mar. 24, 2026]