(a) No interested person outside this Agency may, in an on-the-record proceeding of the types defined in § 102.128, make or knowingly cause to be made any prohibited ex parte communication to Board agents of the categories designated in that Section relevant to the merits of the proceeding.

(b) No Board agent of the categories defined in § 102.128, participating in a particular proceeding as defined in that section, may:

(i) Request any prohibited ex parte communications; or

(ii) Make or knowingly cause to be made any prohibited ex parte communications about the proceeding to any interested person outside this Agency relevant to the merits of the proceeding.

When used in this subpart:

(a) The term person outside this Agency, to whom the prohibitions apply includes any individual outside this Agency, partnership, corporation, association, or other entity, or an agent thereof, and the General Counsel or the General Counsel's representative when prosecuting an unfair labor practice proceeding before the Board pursuant to Section 10(b) of the Act.

(b) The term ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, subject however, to the provisions of §§ 102.129 and 102.130.

Unless otherwise provided by specific order of the Board entered in the proceeding, the prohibition of § 102.126 will 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 pre-election 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 the Director's staff who review the record and prepare a draft of the decision, and Board Members and their staff, 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 the Director's staff who review the record and prepare a draft of the report or decision, and Board Members and their staff, 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 Board Members and their staff, 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 Board Members and their staff, 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 Administrative Law Judge assigned to hear the case or to make rulings upon any motions or issues therein and Board Members and their staff, from the time the complaint and/or Notice of Hearing is issued, or the time the communicator has knowledge that a complaint or Notice of Hearing will be issued, whichever occurs first.

(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.

Except as provided in § 102.130, ex parte communications prohibited by § 102.126 include:

(a) Such communications, when written, if copies are not contemporaneously served by the communicator on all parties to the proceeding in accordance with the provisions of § 102.5(g).

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

Ex parte communications prohibited by § 102.126 do not include oral or written communications or requests:

(a) Which relate solely to matters which the Hearing Officer, Regional Director, Administrative Law Judge, or Board Member is authorized by law or Board Rules to entertain or dispose of on an ex parte basis.

(b) For information solely with respect to the status of a proceeding.

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

(d) Proposing settlement or an agreement for disposition of any or all issues in the proceeding.

(e) 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.

(f) From the General Counsel to the Board when the General Counsel is acting as counsel for the Board.

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

(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 the communicator that anything may be said in writing with copies to all parties. Any Board agent who receives, or who makes or knowingly causes to be made, an unauthorized ex parte communication will place or cause to be placed on the public record of the proceeding:

(1) The communication, if it was written;

(2) A memorandum stating the substance of the communication, if it was oral;

(3) All written responses to the prohibited communication; and

(4) Memoranda stating the substance of all oral responses to the prohibited communication.

(b) The Executive Secretary, if the proceeding is then pending before the Board, the Administrative Law Judge, if the proceeding is then pending before any such judge, or the Regional Director, if the proceeding is then pending before a Hearing Officer or the Regional Director, will serve copies of all such materials placed on the public record of the proceeding on all other parties to the proceeding and on the attorneys of record for the parties. Within 14 days after service of such copies, any party may file with the Executive Secretary, Administrative Law Judge, 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 prohibited communication. All such responses will be placed in the public record of the proceeding, and provision may be made for any further action, including reopening of the record which may be required under the circumstances. No action taken pursuant to this provision will constitute a waiver of the power of the Board to impose an appropriate penalty under § 102.133.

(a) Where the nature and circumstances of a prohibited communication made by or caused to be made by a party to the proceeding are such that the interests of justice and statutory policy may require remedial action, the Board, the Administrative Law Judge, or the Regional Director, as the case may be, may issue to the party making the communication a Notice to Show Cause, returnable before the Board within a stated period not less than 7 days from the date of issuance, why the Board may not determine that the interests of justice and statutory policy require that the claim or interest in the proceeding of a party who knowingly makes a prohibited communication, or knowingly causes a prohibited communication to be made may be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.

(b) 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. However, before the Board institutes formal proceedings under this paragraph (b), it will 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 may not take such action.

(c) 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.