§ 255. Statute of limitations.

Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the BaconDavis Act

(a) if the cause of action accrues on or after May 14, 1947-may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued;

(b) if the cause of action accrued prior to May 14, 1947-may be commenced within whichever of the following periods is the shorter: (1) two years after the cause of action accrued, or (2) the period prescribed by the applicable State statute of limitations; and, except as provided in paragraph (c) of this section, every such action shall be forever barred unless commenced within the shorter of such two periods;

(c) if the cause of action accrued prior to May 14, 1947, the action shall not be barred by paragraph (b) of this section if it is commenced within one hundred and twenty days after May 14, 1947 unless at the time commenced it is barred by an applicable State statute of limitations. (May 14, 1947, ch. 52, § 6, 61 Stat. 87.)

REFERENCES IN TEXT

The Fair Labor Standards Act, as amended, referred to in text, is set out as chapter 8 of this title.

For distribution in the Code of the Walsh-Healey Act and the Bacon-Davis Act, referred to in text, see subsec. (d) of section 262 of this title.

CROSS REFERENCES

Time when action by Administrator of the Wage and Hour Division is deemed to be commenced for purposes of subsec. (a) of this section, see sections 216 (c) and 216 note of this title.

§ 256. Determination of commencement of future actions.

In determining when an action is commenced for the purposes of section 255 of this title, an action commenced on or after May 14, 1947 under the Fair Labor Standards Act of 1938, as amended, the WalshHealey Act, or the Bacon-Davis Act, shall be considered to be commenced on the date when the complaint is filed; except that in the case of a collective or class action instituted under the Fair Labor Standards Act of 1938, as amended, or the Bacon-Davis Act, it shall be considered to be commenced in the case of any individual claimant

(a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or

(b) if such written consent was not so filed or if his name did not so appear on the subsequent date on which such written consent is filed in the court in which the action was commenced. (May 14, 1947, ch. 52, § 7, 61 Stat. 88.)

REFERENCES IN TEXT

The Fair Labor Standards Act, as amended, referred to in text, is set out as chapter 8 of this title.

For distribution in the Code of the Walsh-Healey Act and the Bacon-Davis Act, referred to in text, see subsec. (d) of section 262 of this title.

§ 257. Pending collective and representative actions.

The statute of limitations prescribed in section 255 (b) of this title shall also be applicable (in the case of a collective or representative action commenced prior to May 14, 1947 under the Fair Labor Standards Act of 1938, as amended) to an individual claimant who has not been specifically named as a party plaintiff to the action prior to the expiration of one hundred and twenty days after May 14, 1947. In the application of such statute of limitations such action shall be considered to have been commenced as to him when, and only when, his written consent to become a party plaintiff to the action is filed in the court in which the action was brought. (May 14, 1947, ch. 52, § 8, 61 Stat. 88.)

REFERENCES IN TEXT

The Fair Labor Standards Act, as amended, referred to in text, is set out as chapter 8 of this title.

§ 258. Reliance on past administrative rulings, etc.

In any action or proceeding commenced prior to or on or after May 14, 1947 based on any act or omission prior to May 14, 1947, no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any administrative regulation, order, ruling, approval, or interpretation, of any agency of the United States, or any administrative practice or enforcement policy of any such agency with respect to the class of employers to which he belonged. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect. (May 14, 1947, ch. 52, § 9, 61 Stat. 88.)

REFERENCES IN TEXT

The Fair Labor Standards Act, as amended, referred to in text, is set out as chapter 8 of this title.

For distribution in the Code of the Walsh-Healey Act and the Bacon-Davis Act, referred to in text, see subsec. (d) of section 262 of this title.

§ 259. Reliance in future on administrative rulings, etc. (a) In any action or proceeding based on any act or omission on or after May 14, 1947, no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regu

lation, order, ruling, approval, or interpretation, of the agency of the United States specified in subsection (b) of this section, or any administrative practice or enforcement policy of such agency with respect to the class of employers to which he belonged. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.

(b) The agency referred to in subsection (a) of this section shall be

(1) In the case of the Fair Labor Standards Act of 1938, as amended-the Administrator of the Wage and Hour Division of the Department of Labor;

(2) in the case of the Walsh-Healey Act-the Secretary of Labor, or any Federal officer utilized by him in the administration of such Act; and

(3) in the case of the Bacon-Davis Act-the Secretary of Labor. (May 14, 1947, ch. 52, § 10, 61 Stat. 89.)

REFERENCES IN TEXT

The Fair Labor Standards Act, as amended, referred to in text, is set out as chapter 8 of this title.

For distribution in the Code of the Walsh-Healey Act and the Bacon-Davis Act, referred to in text, see subsec. (d) of section 262 of this title.

TRANSFER OF FUNCTIONS

All functions of all other officers of the Department of Labor and functions of all agencies and employees of such Department were, with the exception of the functions vested by the Administrative Procedure Act (section 1001 et seq. of Title 5, Executive Departments and Government Officers and Employees) in hearing examiners employed by such Department, transferred to the Secretary of Labor, with power vested in him to authorize their performance or the performance of any of his functions by any of such officers, agencies, and employees, by 1950 Reorg. Plan No. 6, §§ 1, 2, 15 F. R. 3174, 64 Stat. 1263, set out in note under section 611 of Title 5, Executive Departments and Government Officers and Employees.

§ 260. Liquidated damages.

In any action commenced prior to or on or after May 14, 1947 to recover unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the Fair Labor Standards Act of 1938, as amended, the court may, in its sound discretion, award no liquidated damages or award any amount thereof not to exceed the amount specified in section 216 (b) of this title. (May 14, 1947, ch. 52, § 11, 61 Stat. 89.)

REFERENCES IN TEXT

The Fair Labor Standards Act, as amended, referred to in text, is set out as chapter 8 of this title.

§ 261. Applicability of “area of production" regulations. No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of

1938, as amended, on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of an activity engaged in by such employee prior to December 26, 1946, if such employer

(1) was not so subject by reason of the definition of an "area of production", by a regulation of the Administrator of the Wage and Hour Division of the Department of Labor, which regulation was applicable at the time of performance of the activity even though at that time the regulation was invalid;

or

(2) would not have been so subject if the regulation signed on December 18, 1946 (Federal Register, Vol. 11, p. 14648) had been in force on and after October 24, 1938. (May 14, 1947, ch. 52, § 12, 61 Stat. 89.)

REFERENCES IN TEXT

The Fair Labor Standards Act, as amended, referred to in text, is set out as chapter 8 of this title.

TRANSFER OF FUNCTIONS

All functions of all other officers of the Department of Labor and functions of all agencies and employees of such Department were, with the exception of the functions vested by the Administrative Procedure Act (section 1001 et seq. of Title 5, Executive Departments and Government Officers and Employees) in hearing examiners employed by such Department, transferred to the Secretary of Labor, with power vested in him to authorize their performance or the performance of any of his functions by any of such officers, agencies, and employees, by 1950 Reorg. Plan No. 6, §§ 1, 2, 15 F. R. 3174, 64 Stat. 1263, set out in note under section 611 of Title 5, Executive Departments and Government Officers and Employees.

§ 262. Definitions.

(a) When the terms "employer", "employee", and "wage" are used in this chapter in relation to the Fair Labor Standards Act of 1938, as amended, they shall have the same meaning as when used in such Act of 1938.

(b) When the term "employer" is used in this chapter in relation to the Walsh-Healey Act or Bacon-Davis Act it shall mean the contractor or subcontractor covered by such Act.

(c) When the term "employee" is used in this chapter in relation to the Walsh-Healey Act or the Bacon-Davis Act it shall mean any individual employed by the contractor or subcontractor covered by such Act in the performance of his contract or subcontract.

(d) The term "Wash-Healey Act" means sections 35-45 of Title 41; and the term "Bacon-Davis Act" means sections 276a to 276a-5 of Title 40.

(e) As used in section 255 of this title the term "State" means any State of the United States or the District of Columbia or any Territory or possession of the United States. (May 14, 1947, ch. 52, § 13, 61 Stat. 89.)

REFERENCES IN TEXT

The Fair Labor Standards Act, as amended, referred to in text, is set out as chapter 8 of this title.

1 So in original. Probably should read "Walsh-Healey Act".

NATIONAL LABOR RELATIONS ACT

Amended by

LABOR MANAGEMENT RELATIONS ACT, 1947 Effective August 22, 1947 (13 F. R. 5656) Amended to January 2, 1953

General Rules and Regulations

By virtue of the authority vested in it by the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, Public Law 101-80th Congress, 1st Session, the National Labor Relations Board has issued and caused to be published in the Federal Register simultaneously herewith, its Rules and Regulations— Series 5, which it has found necessary, as provided in Section 6 of the National Labor Relations Act, to carry out the provisions of that Act. These Rules and Regulations state the general Rules of Procedure followed by the Board in administering its functions. The following statements of the general course and method by which the Board's functions are channeled and determined, issued and published as proIvided in Section 3 (a) (2) of the Administrative Procedure Act, amplify and supplement these Rules of Procedure.

Subpart

A. Definitions.

B. Procedure under section 10 (a) to (i) of the Act for the prevention of unfair labor practices.

C. Procedure under section 9 (c) of the Act for the determination of questions concerning representation of employees.

D. Procedure for referendum under section 9 (e) of the Act.

E. Procedure to hear and determine disputes under section 10 (k) of the Act.

F. Procedure in cases under section 10 (j) and (1) of the Act.

G. Service of papers.

H. Certification and signature of documents.

I. Records and information.

J. Practice before the Board of former employees. K. Construction of rules.

L. Enforcement of rights, privileges, and immunities granted or guaranteed under section 222 (f), communications Act of 1934, as amended, to employees of merged telegraph carriers.

M. Amendments.

102.4 Region.

102.5 Regional Director, Regional Attorney. 102.6 Trial Examiner, Hearing Officer.

102.7 State.

102.8 Party.

§ 102.1. Terms defined in Section 2 of the Act. The terms "person," "employer," "employee," "representative,” “labor organization,” “commerce,” “affecting commerce," and "unfair labor practice," as used herein, shall have the meanings set forth in Section 2 of the National Labor Relations Act, as amended by Title I of the Labor Management Relations Act, 1947. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.2. Act, Board, Board Agent.

The term "Act" as used herein shall mean the National Labor Relations Act, as amended. The term "Board" shall mean the National Labor Relations Board, and shall include any group of three or more members designated pursuant to Section 3 (b) of the Act. The term "Board Agent" shall mean any member, agent or agency of the Board, including its General Counsel. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.3. General Counsel.

The term "General Counsel" as used herein shall mean the General Counsel under Section 3 (d) of the Act. (As amended Jan. 6, 1949, 14 F. R. 78.) § 102.4. Region.

The term "Region" as used herein shall mean that part of the United States or any Territory thereof fixed by the Board as a particular Region. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.5. Regional Director, Regional Attorney. The term "Regional Director" as used herein shall mean the agent designated by the Board as Regional Director for a particular Region. The term "Regional Attorney" as used herein shall mean the attorney designated by the Board as Regional Attorney for a particular Region. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.6. Trial Examiner, Hearing Officer.

The term "Trial Examiner" as used herein shall mean the agent of the Board conducting the hearing in an unfair labor practice or Telegraph Merger Act proceeding. The term "Hearing Officer" as used herein shall mean the agent of the Board conducting the hearing in a proceeding under Section 9 or in a dispute proceeding under Section 10 (k) of the Act. (As amended Jan. 6, 1949, 14 F. R. 78.)

Page 4490

§ 102.7. State.

The term "State" as used herein shall include the District of Columbia and all States, Territories, and possessions of the United States. (As amended Jan. 6, 1949, 14 F. R. 78.)

§ 102.8. Party.

The term "Party" as used herein shall mean the Regional Director in whose Region the proceeding is pending, and any person named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any Board proceeding, including, without limitation, any person filing a charge or petition under the Act, any person named as respondent, as employer, or as party to a contract in any proceeding under the Act, and any labor organization alleged to be dominated, assisted, or supported in violation of Section 8 (a) (1) or 8 (a) (2) of the Act; but nothing herein shall be construed to prevent the Board or its designated agent from limiting any party to participate in the proceedings to the extent of his interest only. (As amended Jan. 6, 1949, 14 F. R. 78.)

102.24 Motions; where to file prior to hearing and during hearing; contents; service on other parties.

102.25 Ruling on motions; where to file motions after hearing and before transfer of case to Board. 102.26 Motions; rulings and orders part of the record; rulings not to be appealed directly to Board without special permission; requests for special permission to appeal.

102.27 Review of granting of motion to dismiss entire complaint; reopening of record.

102.28 Filing of answer or other participation in proceedings not a waiver of rights.

INTERVENTION

102.29 Intervention; requisites; rulings on motions to intervene.

1 Procedure under Section 10 (1) to (1) of the Act is governed by Subparts E and F of these Rules and Regulations.

102.43 Continuance and adjournment. 102.44 Contemptuous conduct; refusal of witness to answer questions.

INTERMEDIATE REPORT AND TRANSFER OF CASE TO THE BOARD 102.45 Intermediate report and recommended order;

contents; service; transfer of the case to the Board; contents of record in case. EXCEPTIONS TO THE RECORD AND PROCEEDING 102.46 Exceptions or supporting briefs; time for filing; where to file; service on parties; extension of time; effect of failure to include matter in exceptions; oral arguments.

102.47 Filing of motion after transfer of case to Board. PROCEDURE BEFORE THE BOARD

102.48 Action of Board upon expiration of time to file exceptions to intermediate report.

102.49 Modification or setting aside of order of Board before record filed in court; action thereafter. 102.50 Hearings before Board or member thereof. 102.51 Settlement or adjustment of issues.

CHARGE

§ 102.9. Who may file; withdrawal and dismissal. A charge that any person has engaged in or is engaging in any unfair labor practice affecting commerce may be made by any person, Provided, That if such charge is filed by a labor organization, no complaint will be issued pursuant thereto, unless such labor organization is in compliance with the requirements of section 9 (f) (g) and (h) of the act, within the meaning of § 102.13. Any such charge may be withdrawn, prior to the hearing, only with the consent of the Regional Director with whom such charge was filed; at the hearing and until the case has been transferred to the Board pursuant to Section 102.45, upon motion, with the consent of the Trial Examiner designated to conduct the hearing; and after the case has been transferred to the Board pursuant to Section 102.45, upon motion, with the consent of the Board. Upon withdrawal of any charge, any complaint based thereon shall be dismissed by the Regional Director issuing the complaint, the Trial Examiner designated to conduct the hearing, or the Board.

§ 102.10. Where to file.

Except as provided in Section 102.33, such charge shall be filled with the Regional Director for the Region in which the alleged unfair labor practice has occurred or is occurring. A charge alleging that an unfair labor practice has occurred or is occurring in two or more Regions may be filed with the Regional Director for any of such Regions.

§ 102.11. Forms; jurat or declaration.

Such charge shall be in writing and signed, and shall either be sworn to before a notary public, Board agent, or other person duly authorized by law to administer oaths and take acknowledgments, or shall contain a declaration by the person signing it, under the penalties of the Criminal Code, that its contents are true and correct to the best of his knowledge and belief. Three additional copies of such charge shall be filed together with one additional copy for each named party respondent.2

§ 102.12. Contents.

Such charge shall contain the following:

(a) The full name and address of the person making the charge.

(b) If the charge is filed by a labor organization, the full name and address of any national or international labor organization of which it is an affiliate or constituent unit.

(c) The full name and address of the person against whom the charge is made (hereinafter referred to as the "respondent”).

(d) A clear and concise statement of the facts constituting the alleged unfair labor practices affecting commerce.

§ 102.13. Compliance with Section 9 (f), (g), and (h) of the Act.

(a) For the purpose of the regulations in this part, compliance with section 9 (f) and (g) of the act means (1) that the Secretary of Labor has issued to the labor organization, pursuant to the rules of the Department of Labor, a letter showing that the labor organization has filed the material required under section 9 (f) and (g) of the act; (2) that the labor organization has filed with the regional director, either as part of the charge (or petition) or otherwise, the duplicate copy of such compliance letter, and (3) that the labor organization has filed with the regional director for the region in which the proceeding is pending or in which it customarily files cases, either as part of the charge (or petition) or otherwise, a declaration executed by an authorized agent stating that the labor organization has complied with section 9 (f) (B) (2) of the act requiring that it furnish to all its members copies of the financial report filed with the Department of Labor, and setting forth the method by which such compliance was made.

(b) For the purpose of the regulations in this part, compliance with section 9 (h) of the act means (1) in the case of a national or international labor

2 A blank form for making a charge will be supplied by the Regional Director upon request.

organization, that it has filed with the general counsel in Washington, D. C., and (2) in the case of a local labor organization, that any national or international labor organization of which it is an affiliate or constituent body has filed with the general counsel in Washington, D. C., and that the labor organization has filed with the regional director in the region in which the proceeding is pending:

(1) A declaration by an authorized representative of the labor organization, executed contemporaneously with the charge (or petition) or within the preceding 12-month period, listing the titles of all offices of the filing organization and stating the name of the incumbent, if any, in each such office and the date of expiration of each incumbent's term.

(2) An affidavit by each officer referred to in subparagraph (1) of this paragraph, executed contemporaneously with the charge (or petition) or within the preceding 12-month period, stating that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.

(c) The term "officer" as used in paragraph (b) of this section shall mean any person occupying a position identified as an office in the constitution of the labor organization; except, however, that where the Board has reasonable cause to believe that a labor organization has omitted from its constitution the designation of any position as an office for the purpose of evading or circumventing the filing requirements of section 9 (h) of the act, the Board may, upon appropriate notice, conduct an investigation to determine the facts in that regard, and where the facts appear to warrant such action the Board may require affidavits from persons other than incumbents of positions identified by the constitution as offices before the labor organization will be recognized as having complied with section 9 (h) of the act.

§ 102.14. Service of charge.

Upon the filing of a charge, the charging party shall be responsible for the timely and proper service of a copy thereof upon the person against whom such charge is made. The Regional Director will as a matter of course, cause a copy of such charge to be served upon the person against whom the charge is made, but he shall not be deemed to assume responsibility for such service.

COMPLAINT

§ 102.15. When and by whom issued; contents; service. After a charge has been filed, if it appears to the Regional Director that formal proceedings in respect thereto should be instituted, he shall issue and cause to be served upon all the other parties a formal complaint in the name of the Board stating the charges and containing a Notice of Hearing before a Trial Examiner at a place therein fixed and at a time not less than 10 days after the service of the complaint.