[Title 28 CFR 4]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 4 - PROCEDURE GOVERNING APPLICATIONS FOR CERTIFICATES OF EXEMPTION UNDER THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, AND THE EMPLOYEE]
[From the U.S. Government Printing Office]
28JUDICIAL ADMINISTRATION12002-07-012002-07-01falsePROCEDURE GOVERNING APPLICATIONS FOR CERTIFICATES OF EXEMPTION UNDER THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, AND THE EMPLOYEE4PART 4JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 4--PROCEDURE GOVERNING APPLICATIONS FOR CERTIFICATES OF EXEMPTION UNDER THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, AND THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974--Table of Contents
Sec.
4.1 Definitions.
4.2 Who may apply for Certificate of Exemption.
4.3 Contents of application.
4.4 Supporting affidavit; additional information.
4.5 Character endorsements.
4.6 Institution of proceedings.
4.7 Notice of hearing; postponements.
4.8 Hearing.
4.9 Representation.
4.10 Waiver of oral hearing.
4.11 Appearance; testimony; cross-examination.
4.12 Evidence which may be excluded.
4.13 Record for decision. Receipt of documents comprising record;
timing and extension.
4.14 Administrative law judge's recommended decision; exceptions
thereto; oral argument before Commission.
4.15 Certificate of Exemption.
4.16 Rejection of application.
4.17 Availability of decisions.
Authority: Secs. 504, 606, 73 Stat. 536, 540 (29 U.S.C. 504, 526);
and secs. 411, 507a, 88 Stat. 887, 894 (29 U.S.C. 1111, 1137).
Cross Reference: For Organization Statement, U.S. Parole Commission,
see subpart V of part 0 of this chapter.
[[Page 204]]
Source: 44 FR 6890, Feb. 2, 1979, unless otherwise noted.
Sec. 4.1 Definitions.
As used in this part:
(a) Labor Act means the Labor-Management Reporting and Disclosure
Act of 1959 (73 Stat. 519).
(b) Pension Act means the Employee Retirement Income Security Act of
1974 (Pub. L. 93-406) (88 Stat. 829).
(c) Acts means both of the above statutes.
(d) Commission means the United States Parole Commission.
(e) Secretary means the Secretary of Labor or his designee.
(f) For proceedings under the ``Labor Act''
(1) Employer means the labor organization, or person engaged in an
industry or activity affecting commerce, or group or association of
employers dealing with any labor organization, which an applicant under
Sec. 4.2 desires to serve in a capacity for which he is ineligible under
section 504(a) of the ``Labor Act''.
(2) All other terms used in this part shall have the same meaning as
identical or comparable terms when those terms are used in the ``Labor
Act''.
(g) For proceedings under the ``Pension Act''
(1) Employer means the employee benefit plan with which an applicant
under Sec. 4.2 desires to serve in a capacity for which he is ineligible
under section 411(a) of the ``Pension Act'' (29 U.S.C. section 1111).
(2) All other terms used in this part shall have the same meaning as
identical or comparable terms when those terms are used in the ``Pension
Act''.
Sec. 4.2 Who may apply for Certificate of Exemption.
Any person who has been convicted of any of the crimes enumerated in
section 504(a) of the ``Labor Act'' whose service, present or
prospective, as described in that section is or would be prohibited by
that section because of such a conviction or a prison term resulting
therefrom; or any person who has been convicted of any of the crimes
enumerated in section 411(a) of the ``Pension Act'' (29 U.S.C. section
1111) whose service, present or prospective, as described in that
section is or would be prohibited by that section because of such a
conviction or a prison term resulting therefrom, may apply to the
Commission for a Certificate of Exemption from such a prohibition under
the applicable Act.
Sec. 4.3 Contents of application.
A person applying for a Certificate of Exemption shall file with the
Office of General Counsel, U.S. Parole Commission, 5550 Friendship
Boulevard, Chevy Chase, Maryland 20815-7286, a signed application under
oath, in seven copies, which shall set forth clearly and completely the
following information:
(a) The name and address of the applicant and any other names used
by the applicant and dates of such use.
(b) A statement of all convictions and imprisonments which prohibit
the applicant's service under the provisions of the applicable Act.
(c) Whether any citizenship rights were revoked as a result of
conviction or imprisonment and if so the name of the court and date of
judgment thereof and the extent to which such rights have been restored.
(d) The name and location of the employer and a description of the
office or paid position, including the duties thereof, for which a
Certificate of Exemption is sought.
(e) A full explanation of the reasons or grounds relied upon to
establish that the applicant's service in the office or employment for
which a Certificate of Exemption is sought would not be contrary to the
purposes of the applicable Act.
(f) A statement that the applicant does not, for the purpose of the
proceeding, contest the validity of any conviction.
(28 U.S.C. 509 and 510, 5 U.S.C. 301)
[44 FR 6890, Feb. 2, 1979, as amended at 46 FR 52354, Oct. 27, 1981]
Sec. 4.4 Supporting affidavit; additional information.
(a) Each application filed with the Commission must be accompanied
by a signed affidavit, in 7 copies, setting forth the following
concerning the personal history of the applicant:
[[Page 205]]
(1) Place and date of birth. If the applicant was not born in the
United States, the time of first entry and port of entry, whether he is
a citizen of the United States, and if naturalized, when, where and how
he became naturalized and the number of his Certificate of
Naturalization.
(2) Extent of education, including names of schools attended.
(3) History of marital and family status, including a statement as
to whether any relatives by blood or marriage are currently serving in
any capacity with any employee benefit plan, or labor organization,
group or association of employers dealing with labor organizations or
industrial labor relations group, or currently advising or representing
any employer with respect to employee organizing, concerted activities,
or collective bargaining activities.
(4) Present employment, including office or offices held, with a
description of the duties thereof.
(5) History of employment, including military service, in
chronological order.
(6) Licenses held, at the present time or at any time in the past
five years, to possess or carry firearms.
(7) Veterans' Administration claim number and regional office
handling claim, if any.
(8) A listing (not including traffic offenses for which a fine of
not more than $25 was imposed or collateral of not more than $25 was
forfeited) by date and place of all arrests, convictions for felonies,
misdemeanors, or offenses and all imprisonment or jail terms resulting
therefrom, together with a statement of the circumstances of each
violation which led to arrest or conviction.
(9) Whether applicant was ever on probation or parole, and if so the
names of the courts by which convicted and the dates of conviction.
(10) Names and locations of all employee benefit plans, labor
organizations or employer groups with which the applicant has ever been
associated or employed, and all employers or employee benefit plans
which he has advised or represented concerning employee organizing,
concerted activities, or collective bargaining activities, together with
a description of the duties performed in each such employment or
association.
(11) A statement of applicant's net worth, including all assets held
by him or in the names of others for him, the amount of each liability
owed by him or by him together with any other person and the amount and
source of all income during the immediately preceding five calendar
years plus income to date of application.
(12) Any other information which the applicant feels will assist the
Commission in making its determination.
(b) The Commission may require of the applicant such additional
information as it deems appropriate for the proper consideration and
disposition of his application.
Sec. 4.5 Character endorsements.
Each application filed with the Commission must be accompanied by
letters or other forms of statement (in three copies) from six persons
addressed to the Chairman, U.S. Parole Commission, attesting to the
character and reputation of the applicant. The statement as to character
shall indicate the length of time the writer has known applicant, and
shall describe applicant's character traits as they relate to the
position for which the exemption is sought and the duties and
responsibilities thereof. The statement as to reputation shall attest to
applicant's reputation in his community or in his circle of business or
social acquaintances. Each letter or other form of statement shall
indicate that it has been submitted in compliance with procedures under
the respective Act and that applicant has informed the writer of the
factual basis of his application. The persons submitting letters or
other forms of statement shall not include relatives by blood or
marriage, prospective employers, or persons serving in any official
capacity with an employee benefit plan, labor organization, group or
association of employers dealing with labor organizations or industrial
labor relations group.
Sec. 4.6 Institution of proceedings.
All applications and supporting documents received by the Commission
shall be reviewed for completeness by
[[Page 206]]
the Office of General Counsel of the Parole Commission and if complete
and fully in compliance with the regulations of this part the Office of
General Counsel shall accept them for filing. Applicant and/or his
representative will be notified by the Office of General Counsel of any
deficiency in the application and supporting documents. The amount of
time allowed for deficiencies to be remedied will be specified in said
notice. In the event such deficiencies are not remedied within the
specified period or any extension thereof, granted after application to
the Commission in writing within the specified period, the application
shall be deemed to have been withdrawn and notice thereof shall be given
to applicant.
Sec. 4.7 Notice of hearing; postponements.
Upon the filing of an application, the Commission shall:
(a) Set the application for a hearing on a date within a reasonable
time after its filing and notify the applicant of such date by certified
mail;
(b) Give notice, as required by the respective Act, to the
appropriate State, County, or Federal prosecuting officials in the
jurisdiction or jurisdictions in which the applicant was convicted that
an application for a Certificate of Exemption has been filed and the
date for hearing thereon; and
(c) Notify the Secretary that an application has been filed and the
date for hearing thereon and furnish him copies of the application and
all supporting documents.
Any party may request a postponement of a hearing date in writing from
the Office of General Counsel at any time prior to ten (10) days before
the scheduled hearing. No request for postponement other than the first
for any party will be considered unless a showing is made of cause
entirely beyond the control of the requester. The granting of such
requests will be within the discretion of the Commission. In the event
of a failure to appear on the hearing date as originally scheduled or
extended, the absent party will be deemed to have waived his right to a
hearing. The hearing will be conducted with the parties present
participating and documentation, if any, of the absent party entered
into the record.
Sec. 4.8 Hearing.
The hearing on the application shall be held at the offices of the
Commision in Washington, DC, or elsewhere as the Commission may direct.
The hearing shall be held before the Commission, before one or more
Commissioners, or before one or more administrative law judges appointed
as provided by section 11 of the Administrative Procedure Act (5 U.S.C.
3105) as the Commission by order shall determine. Hearings shall be
conducted in accordance with sections 7 and 8 of the Administrative
Procedure Act (5 U.S.C. 556, 557).
Sec. 4.9 Representation.
The applicant may be represented before the Commission by any person
who is a member in good standing of the bar of the Supreme Court of the
United States or of the highest court of any State or territory of the
United States, or the District of Columbia, and who is not under any
order of any court suspending, enjoining, restraining, or disbarring him
from, or otherwise restricting him in, the practice of law. Whenever a
person acting in a representative capacity appears in person or signs a
paper in practice before the Commission, his personal appearance or
signature shall constitute a representation to the Commission that under
the provisions of this part and applicable law he is authorized and
qualified to represent the particular person in whose behalf he acts.
Further proof of a person's authority to act in a representative
capacity may be required. When any applicant is represented by an
attorney at law, any notice or other written communication required or
permitted to be given to or by such applicant shall be given to or by
such attorney. If an applicant is represented by more than one attorney,
service by or upon any one of such attorneys shall be sufficient.
Sec. 4.10 Waiver of oral hearing.
The Commission upon receipt of a statement from the Secretary that
he does not object, and in the absence of any request for oral hearing
from the others to whom notice has been sent pursuant to Sec. 4.7 may
grant an application without receiving oral testimony with respect to
it.
[[Page 207]]
Sec. 4.11 Appearance; testimony; cross-examination.
(a) The applicant shall appear and, except as otherwise provided in
Sec. 4.10, shall testify at the hearing and may cross-examine witnesses.
(b) The Secretary and others to whom notice has been sent pursuant
to Sec. 4.7 shall be afforded an opportunity to appear and present
evidence and cross-examine witnesses, at any hearing.
(c) In the discretion of the Commission or presiding officer, other
witnesses may testify at the hearing.
Sec. 4.12 Evidence which may be excluded.
The Commission or officer presiding at the hearing may exclude
irrelevant, untimely, immaterial, or unduly repetitious evidence.
Sec. 4.13 Record for decision. Receipt of documents comprising record; timing and extension.
(a) The application and all supporting documents, the transcript of
the testimony and oral argument at the hearing, together with any
exhibits received and other documents filed pursuant to these procedures
and/or the Administrative Procedures Act shall be made parts of the
record for decision.
(b) At the conclusion of the hearing the presiding officer shall
specify the time for submission of proposed findings of fact and
conclusions of law (unless waived by the parties); transcript of the
hearing, and supplemental exhibits, if any. He shall set a tentative
date for the recommended decision based upon the timing of these
preliminary steps. Extensions of time may be requested by any party, in
writing, from the Parole Commission. Failure of any party to comply with
the time frame as established or extended will be deemed to be a waiver
on his part of his right to submit the document in question. The
adjudication will proceed and the absence of said document and reasons
therefor will be noted in the record.
Sec. 4.14 Administrative law judge's recommended decision; exceptions thereto; oral argument before Commission.
Whenever the hearing is conducted by an administrative law judge, at
the conclusion of the hearing he shall submit a recommended decision to
the Commission, which shall include a statement of findings and
conclusions, as well as the reasons therefor. The applicant, the
Secretary and others to whom notice has been sent pursuant to Sec. 4.7
may file with the Commission, within 10 days after having been furnished
a copy of the recommended decision, exceptions thereto and reasons in
support thereof. The Commission may order the taking of additional
evidence and may request the applicant and others to appear before it.
The Commission may invite oral argument before it on such questions as
it desires.
Sec. 4.15 Certificate of Exemption.
The applicant, the Secretary and others to whom notice has been sent
pursuant to Sec. 4.7 shall be served a copy of the Commission's decision
and order with respect to each application. Whenever the Commission
decision is that the application be granted, the Commission shall issue
a Certificate of Exemption to the applicant. The Certificate of
Exemption shall extend only to the stated employment with the
prospective employer named in the application.
Sec. 4.16 Rejection of application.
No application for a Certificate of Exemption shall be accepted from
any person whose application for a Certificate of Exemption has been
withdrawn, deemed withdrawn due to failure to remedy deficiencies in a
timely manner, or denied by the Commission within the preceding 12
months.
Sec. 4.17 Availability of decisions.
The Commission's Decisions under both Acts are available for
examination in the Office of the U.S. Parole Commission, 5550 Friendship
Boulevard, Chevy Chase, Maryland 20815-
[[Page 208]]
7286. Copies will be mailed upon written request to the Office of
General Counsel, U.S. Parole Commission, at the above address at a cost
of ten cents per page.
(28 U.S.C. 509 and 510, 5 U.S.C. 301)
[44 FR 6890, Feb. 2, 1979, as amended at 46 FR 52354, Oct. 27, 1981]