Federal Service Impasses Panel; General; Procedures of the Panel; Impasses Arising Pursuant to Agency Determinations Not to Establish or to Terminate Flexible or Compressed Work Schedules; Miscellaneous Requirements

FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2470, 2471, 2472, and 2473

Federal Service Impasses Panel; General; Procedures of the Panel;

Impasses Arising Pursuant to Agency Determinations Not to Establish or

to Terminate Flexible or Compressed Work Schedules; Miscellaneous

Requirements

AGENCY: Federal Service Impasses Panel, FLRA.

ACTION: Notice of proposed rulemaking with request for comments.

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SUMMARY: The Federal Service Impasses Panel proposes to revise its

regulations to take advantage of existing technology and to make them

more easily understood by agencies, labor organizations, and

individuals. The proposed revisions will allow parties to file requests

for Panel assistance, and other documents, by facsimile transmission

and will generally reorganize and modify those portions of the rules

pertaining to filing and service. A proposed new section will establish

procedures by which a party to a Panel proceeding may seek to obtain a

subpena. These proposed revisions will make the regulations clearer and

more user-friendly and will provide quicker access to the Panel's

procedures. By separate notice published today, the Federal Labor

Relations Authority is providing interested persons with the

opportunity to submit written comments concerning, among other things,

contemplated revisions to the FLRA's regulations to permit the filing

and/or service of documents by facsimile transmissions.

DATES: Written comments in response to this notice will be considered

if received by close of business on July 8, 1996. Extensions of time

will not be granted.

ADDRESSES: Mail or deliver written comments to the Federal Service

Impasses Panel, 607 14th Street, NW., Suite 220, Washington, D.C.

20424-0001. Copies of all written comments will be available for

inspection and photocopying between 8 a.m. and 5 p.m., Monday through

Friday, at the above address.

FOR FURTHER INFORMATION CONTACT: Linda A. Lafferty, Executive Director,

Federal Service Impasses Panel, 607 14th Street, NW., Suite 220,

Washington, D.C. 20424-0001. Telephone (202) 482-6670.

SUPPLEMENTARY INFORMATION: The Federal Service Impasses Panel

established an internal work group to study and evaluate its

regulations. The following section-by-section analysis reflects

proposed revisions to Parts 2470--General; Part 2471--Procedures of the

Panel; and Part 2472--Impasses Arising Pursuant to Agency

Determinations Not to Establish or to Terminate Flexible or Compressed

Work Schedules. Following this analysis, an explanation of proposed

Part 2473-- Miscellaneous Requirements, which contains a new section on

subpenas, is provided.

Part 2470

Section 2470.1

A new last sentence has been added to reflect the Panel's

longstanding policy of encouraging parties to resolve disputes on terms

that are mutually agreeable without the need for Panel action.

Part 2471

Section 2471.2

A form is available for use in filing a request for assistance with

the Panel, but its use is not required, provided that the request

includes all of the information set forth in Sec. 2471.3. This provides

a filing party with the choice of using the prepared form or submitting

the required information in some other format. The Panel's address and

phone number are updated to reflect its current office location.

Section 2471.3

Requiring the filing party to provide the addresses, phone numbers,

and facsimile numbers of the parties to a dispute will facilitate

communication between the Panel and parties and will result in enhanced

customer service. The revision in paragraph (b)(4) reflects

developments in FLRA case law, set forth in Commander, Carswell Air

Force Base, Texas and American Federation of Government Employees,

Local 1364, 31 FLRA 620 (1988), which allows the Panel to resolve duty-

to-bargain questions under certain circumstances.

Section 2471.4

The Panel's address and phone number are updated to reflect its

current office location. The Panel's facsimile number is provided

consistent with the changes described in Sec. 2471.5 which allow filing

of requests for assistance, and other documents, by this method.

Section 2471.5

The Panel recognizes that the use of facsimile systems have become

more prevalent in both the private and public sectors and that private

delivery services are commonly used as an alternative to the United

States Postal Service. After careful consideration, it has been

determined that allowing the limited use of these methods of

communication will provide parties with quicker access to the Panel's

services.

Paragraph (a) establishes the requirements for filing and service

of requests for Panel assistance and requests for approval of a binding

arbitration procedure. Paragraph (a)(1) allows a filing party to submit

a request by a variety of methods, including facsimile transmission and

private delivery service. A party filing a request by facsimile

transmission must submit an original for the Panel's records, but

failure to do so shall not affect the validity of the filing, if

otherwise proper. Paragraph (a)(2), which establishes service

requirements, provides the same variety of methods as paragraph (a)(1),

except that the filing party may use facsimile transmission only with

the permission of the person receiving the request.

Paragraph (b) establishes the requirements for filing and service

of documents other than requests for assistance. Paragraphs (b)(1) and

(b)(2) provide for filing and service of documents with the Panel by

the same methods established in paragraph (a)(1) and (a)(2) except that

advance permission is required before a document other than a request

may be filed with the Panel by facsimile transmission.

Paragraph (d) establishes a method for determining the date of

service for documents served by private delivery service or by

facsimile transmission.

Paragraph (e) establishes a revised format for documents filed with

the Panel; it also states affirmatively that nonconforming documents

may, at the Panel's discretion, be rejected.

Section 2471.6

Paragraph (a)(2) establishes that when the Panel asserts

jurisdiction, it may recommend procedures for impasse resolution and/or

directly assist the parties through whatever methods the Panel

considers appropriate. The most common procedures used by the Panel are

now listed.

[[Page 28799]]

Paragraph (b) provides a streamlined approach for handling requests

for approval of a binding arbitration procedure. All requests filed

under this section will now be approved or disapproved normally within

5 workdays.

Section 2471.7

The amended wording clarifies that a notice of hearing is issued to

the parties only when the Panel appoints one or more of its designees

to conduct a factfinding hearing. Such a notice will not be issued when

a hearing is conducted by a private factfinder.

Section 2471.8

The heading is changed slightly to clarify that the provisions of

the section apply to factfinding, and other, hearings.

Section 2471.9

Since the reports and recommendations referred to in Sec. 2471.7,

2471.8, and 2471.9 are issued following a factfinding hearing, the

first sentence of paragraph (a) is amended accordingly.

Part 2472

Section 2472.2

Former paragraphs (d) through (n) are renumbered to become new

paragraphs (e) through (o). A new paragraph (d) is added which defines

``duly authorized delegatee'' as ``an official who has been delegated

the authority to act for the head of the agency in the matter

concerned.'' Since the amended wording of Sec. 2472.4(a)(6) includes

this term, its definition is provided in this section for clarity.

New paragraph (j) is amended by eliminating the words ``arbitration

hearing'' from the definition of the term ``hearing.'' Under 5 U.S.C.

6131, only the Panel, acting as a body, is authorized to decide

impasses arising from an agency determination not to establish, or to

terminate, a flexible or compressed work schedule. Since arbitration is

inconsistent with this statutory requirement, it is not an available

procedural option. The reference, therefore, is deleted.

Section 2472.3

A form is available for use in filing a request for assistance with

the Panel in cases arising under the Federal Employees Flexible and

Compressed Work Schedules Act, but its use is not required, provided

that the request includes all of the information set forth in

Sec. 2472.4. This provides a filing party with the choice of using the

prepared form or submitting the required information in some other

format. The Panel's address and phone number are updated to reflect its

current office location.

Section 2472.4

Consistent with the changes to Sec. 2471.3, paragraph (a)(1)

requires the filing party to provide the addresses, phone numbers, and

facsimile numbers of the parties to a dispute.

The amendment to paragraph (a)(6) reflects the fact that in

considering impasses under 5 U.S.C. 6131, the Panel is charged with

deciding whether an agency-head finding, that a flexible or compressed

work schedule has had, or would have, adverse agency impact, is

supported by evidence. This amendment requires the filing party to

submit the finding as part of the initial request. In addition,

although 5 U.S.C. 6131 identifies ``the head of an agency'' as the

individual responsible for making the finding, it is the Panel's

experience that in most cases, the finding is actually made by some

other individual. This being the case, evidence of a specific

delegation of authority is required in order to comply with the terms

of 5 U.S.C. 6131.

Section 2472.5

These changes are consistent with those set forth in Sec. 2471.4.

The Panel's address and phone number are updated to reflect its current

office location. The Panel's facsimile number is provided consistent

with the changes described in new Sec. 2472.6 which allow filing of

requests, and other documents, by this method.

Section 2472.6

This section is eliminated because many parties were confused as to

their obligations under it. Since new Sec. 2472.7 provides for

investigation of requests filed under this part, this section is

unnecessary. Former Sec. 2472.7 through 2472.12 are renumbered to

become Sec. 2472.6 through 2472.11, respectively.

New Sec. 2472.6 (a) and (b) establish the same methods of filing

and completing service as described in Sec. 2471.5 (a) and (b) except

that no reference is made to service upon a mediation service, since

under this part, mediation is not a prerequisite to seeking Panel

assistance. Consistent with the amendments to Sec. 2471.5, paragraph

(d) establishes a method for determining the date of service for

documents served by private delivery service or by facsimile

transmission, and paragraph (e) establishes a revised format for

documents filed with the Panel. Paragraph (f) is revised to clarify

that a request filed under this part must be perfected before any Panel

action will be taken.

Section 2472.7

Paragraph (b) is revised to set forth a more expansive list of

procedures that are used by the Panel when considering impasses filed

under this part.

Section 2472.8

Consistent with the amended wording of Sec. 2471.7, this section

clarifies that a notice of hearing is issued to the parties only when

the Panel appoints one or more of its designees to conduct a

factfinding hearing. Such a notice will not be issued when a hearing is

conducted by a private factfinder.

Section 2472.10

This section is modified to reflect the fact that reports are

issued after factfinding hearings and not after informal conferences.

This being the case, the reference to informal conferences is deleted.

Section 2472.11

Paragraph (b) is modified to clarify that if the finding on which

an agency determination under 5 U.S.C. 6131(c)(2) or (c)(3) is based is

not supported by evidence that the schedule is likely to cause, or has

caused, an adverse agency impact, the Panel shall take whatever action

is appropriate. This revision clarifies that the Panel has broad

discretion in resolving impasses, as described in 5 U.S.C. 7119.

Part 2473

Section 2473.1

This section is added to establish a procedure whereby a party may

seek to obtain a subpena requiring the attendance and testimony of

witnesses at a hearing and the production of documentary or other

evidence. Paragraph (a) identifies those individuals who may issue a

subpena. Paragraph (b) describes the circumstances where no subpena is

necessary. Paragraph (c) establishes the method and time limits for

submitting a request to the Executive Director or appropriate presiding

official during a hearing. Paragraph (d) prescribes the contents of the

request; sets forth a standard for the granting, or denying, of a

request; and establishes service requirements. Paragraph (e) provides a

process for challenging a subpena through a petition to revoke.

Paragraph (f) deals with enforcement of a subpena, and paragraph (g)

establishes additional filing and service requirements. Paragraph (h)

provides for witness fees and expenses.

[[Page 28800]]

List of Subjects

5 CFR Part 2470

Government employees, Labor-management relations.

5 CFR Parts 2471, 2472, and 2473

Administrative practice and procedure, Government employees, Labor-

management relations.

For the reasons set forth in the preamble, the Federal Service

Impasses Panel proposes to amend 5 CFR Ch. XIV, Parts 2470, 2471, and

2472, and add 5 CFR Ch. XIV, Part 2473, as follows:

PART 2470--GENERAL

1. The authority citation for Part 2470 continues to read as

follows:

Authority: 5 U.S.C. 7119, 7134.

2. In Sec. 2470.1, a new last sentence is added to read as follows:

Sec. 2470.1 Purpose.

* * * It is the policy of the Panel to encourage labor and

management to resolve disputes on terms that are mutually agreeable at

any stage of the Panel's procedures.

PART 2471--PROCEDURES OF THE PANEL

3. The authority citation for Part 2471 continues to read as

follows:

Authority: 5 U.S.C. 7119, 7134.

4. Section 2471.2 is revised to read as follows:

Sec. 2471.2 Request form.

A form is available for use by the parties in filing a request for

consideration of an impasse or approval of a binding arbitration

procedure. Copies are available from the Office of the Executive

Director, Federal Service Impasses Panel, 607 14th Street, NW., Suite

220, Washington, D.C. 20424-0001. Telephone (202) 482-6670. Use of the

form is not required provided that the request includes all of the

information set forth in Sec. 2471.3.

5. Section 2471.3 is amended by revising paragraphs (a)(1), (b)(1),

and (b)(4) to read as follows:

Sec. 2471.3 Content of request.

(a) * * *

(1) Identification of the parties and individuals authorized to act

on their behalf, including their addresses, telephone numbers, and

facsimile numbers;

* * * * *

(b) * * *

(1) Identification of the parties and individuals authorized to act

on their behalf, including their addresses, telephone numbers, and

facsimile numbers;

* * * * *

(4) Statement as to whether any of the proposals to be submitted to

the arbitrator contain questions concerning the duty to bargain and a

statement of each party's position concerning such questions; and

* * * * *

6. Section 2471.4 is revised to read as follows:

Sec. 2471.4 Where to file.

Requests to the Panel provided for in this part, and inquiries or

correspondence on the status of impasses or other related matters,

should be addressed to the Executive Director, Federal Service Impasses

Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001.

Telephone (202) 482-6670. Facsimile (202) 482-6674.

7. Section 2471.5 is amended by revising the section heading and

paragraphs (a), (b), (d), and (e) to read as follows:

Sec. 2471.5 Filing and service.

(a) Filing and service of request. (1) Any party submitting a

request for Panel consideration of an impasse or a request for approval

of a binding arbitration procedure shall file an original and one copy

with the Panel. A clean copy may be submitted for the original.

Requests may be submitted in person or by registered mail, certified

mail, regular mail, or private delivery service. Requests may also be

accepted by the Panel if transmitted to the facsimile machine of its

office. A party submitting a request by facsimile shall also file an

original for the Panel's records, but failure to do so shall not affect

the validity of the filing by facsimile, if otherwise proper.

(2) The party submitting the request shall serve a copy of such

request upon all counsel of record or other designated

representative(s) of parties, upon parties not so represented, and upon

any mediation service which may have been utilized. Service upon such

counsel or representative shall constitute service upon the party, but

a copy also shall be transmitted to the party. Service of a request may

be made in person or by registered mail, certified mail, regular mail,

or private delivery service. With the permission of the person

receiving the request, service may be made by facsimile transmission or

by any other agreed-upon method. When the Panel acts on a request from

the Federal Mediation and Conciliation Service or acts on a request

from the Executive Director under Sec. 2471.1(a), it will notify the

parties to the dispute, their counsel of record, if any, and any

mediation service which may have been utilized.

(b) Filing and service of other documents. (1) Any party submitting

a response to, or other document in connection with, a request for

Panel consideration of an impasse or a request for approval of a

binding arbitration procedure shall file an original and one copy with

the Panel. A clean copy may be submitted for the original. Documents

may be submitted to the Panel in person or by registered mail,

certified mail, regular mail, or private delivery service. Documents

may also be accepted by the Panel if transmitted to the facsimile

machine of its office, but only with advance permission, which may be

obtained by telephone. A party submitting a document by facsimile shall

also file an original for the Panel's records, but failure to do so

shall not affect the validity of the submission, if otherwise proper.

(2) The party submitting the document shall serve a copy of such

request upon all counsel of record or other designated

representative(s) of parties, or upon parties not so represented.

Service upon such counsel or representative shall constitute service

upon the party, but a copy also shall be transmitted to the party.

Service of a document may be made in person or by registered mail,

certified mail, regular mail, or private delivery service. With the

permission of the person receiving the document, service may be made by

facsimile transmission or by any other agreed-upon method.

* * * * *

(d) The date of service or date served shall be the day when the

matter served, if properly addressed, is deposited in the U.S. mail or

is delivered in person or is deposited with a private delivery service

that will provide a record showing the date the document was tendered

to the delivery service. Where service is made by facsimile

transmission, the date of service shall be the date on which

transmission is received.

(e) Unless otherwise provided by the Panel or its designated

representatives, any document or paper filed with the Panel under this

section, together with any enclosure filed therewith, shall be

typewritten on 8\1/2\ x 11 inch plain white paper, shall have margins

no less than 1 inch on each side, shall be in typeface no smaller than

10 characters per inch, and shall be numbered consecutively.

Nonconforming papers may, at the Panel's discretion, be rejected.

[[Page 28801]]

8. Section 2471.6 is amended by revising the section heading and

paragraphs (a)(2) and (b) to read as follows:

Sec. 2471.6 Investigation of request; Panel procedures; approval of

binding arbitration.

(a) * * *

(1) * * *

(2) Assert jurisdiction and--

(i) Recommend to the parties procedures for the resolution of the

impasse; and/or

(ii) Assist the parties in resolving the impasse through whatever

methods and procedures the Panel considers appropriate. The procedures

utilized by the Panel may include, but are not limited to: informal

conferences with a Panel designee; factfinding (by a Panel designee or

a private factfinder); written submissions; show cause orders; oral

presentations to the Panel; and arbitration or mediation-arbitration

(by a Panel designee or a private arbitrator). Following procedures

used by the Panel, it may issue a report to the parties containing

recommendations for settlement.

(b) Upon receipt of a request for approval of a binding arbitration

procedure, the Panel or its designee will promptly conduct an

investigation, consulting when necessary with the parties and with any

mediation service utilized. After due consideration, the Panel shall

promptly approve or disapprove the request, normally within five (5)

workdays.

9. The section heading and the first sentence of Sec. 2471.7 are

revised and paragraphs (b) (1) through (6) are redesignated as (a)

through (b), respectively. The revisions read as follows:

Sec. 2471.7 Preliminary factfinding procedures.

When the Panel determines that a factfinding hearing is necessary

under Sec. 2471.6, and it appoints one or more of its designees to

conduct such hearing, it will issue and serve upon each of the parties

a notice of hearing and a notice of prehearing conference, if any.

* * * * *

10. The section heading of Sec. 2471.8 is revised to read as

follows:

Sec. 2471.8 Conduct of factfinding and other hearings; prehearing

conferences.

* * * * *

11. Section 2471.9 is amended by revising paragraph (a) to read as

follows:

Sec. 2471.9 Report and recommendations.

(a) When a report is issued after a factfinding hearing is

conducted pursuant to Secs. 2471.7 and 2471.8, it normally shall be in

writing and, when authorized by the Panel, shall contain

recommendations.

* * * * *

PART 2472--IMPASSES ARISING PURSUANT TO AGENCY DETERMINATIONS NOT

TO ESTABLISH OR TO TERMINATE FLEXIBLE OR COMPRESSED WORK SCHEDULES

12. The authority citation for Part 2472 is revised to read as

follows:

Authority: 5 U.S.C. 6131.

13. In Sec. 2472.2, paragraphs (d) through (n) are redesignated as

paragraphs (e) through (o), new paragraph (d) is added, and paragraph

(j) is revised to read as follows:

Sec. 2472.2 Definitions.

* * * * *

(d) The term ``duly authorized delegatee'' means an official who

has been delegated the authority to act for the head of the agency in

the matter concerned.

* * * * *

(j) The term ``hearing'' means a factfinding hearing or any other

hearing procedures deemed necessary to accomplish the purpose of 5

U.S.C. 6131.

* * * * *

14. Section 2472.3 is revised to read as follows:

Sec. 2472.3 Request for Panel consideration.

Either party, or the parties jointly, may request the Panel to

resolve an impasse resulting from an agency determination not to

establish or to terminate a flexible or compressed work schedule by

filing a request as hereinafter provided. A form is available for use

by the parties in filing a request with the Panel. Copies are available

from the Office of the Executive Director, Federal Service Impasses

Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001.

Telephone (202) 482-6670. Use of the form is not required provided that

the request includes all of the information set forth in Sec. 2472.4.

15. Section 2472.4 is amended by revising paragraphs (a)(1) and

(a)(6) to read as follows:

Sec. 2472.4 Content of request.

(a) * * *

(1) Identification of the parties and individuals authorized to act

on their behalf, including their addresses, telephone numbers, and

facsimile numbers;

* * * * *

(6) A copy of the agency's written determination and the finding on

which the determination is based, including, in a case where the

finding is made by a duly authorized delegatee, evidence of a specific

delegation of authority to make such a finding; and

* * * * *

16. Section 2472.5 is revised to read as follows:

Sec. 2472.5 Where to file.

Requests to the Panel provided for in these rules, and inquiries or

correspondence on the status of impasses or other related matters,

should be directed to the Executive Director, Federal Service Impasses

Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001.

Telephone (202) 482-6670. Facsimile (202) 482-6674.

17. Section 2472.6 is removed and Sec. 2472.7 through 2472.12 are

redesignated as Sec. 2472.6 through 2472.11, respectively.

18. Newly designated Sec. 2472.6 is amended by revising the section

heading and paragraphs (a), (b), (d), (e), and (f) to read as follows:

Sec. 2472.6 Filing and service.

(a) Filing and service of request. (1) Any party submitting a

request for Panel consideration of an impasse filed pursuant to

Sec. 2472.3 shall file an original and one copy with the Panel. A clean

copy may be submitted for the original. Requests may be submitted in

person or by registered mail, certified mail, regular mail, or private

delivery service. Requests will also be accepted by the Panel if

transmitted to the facsimile machine of its office. A party submitting

a request by facsimile shall also file an original for the Panel's

records, but failure to do so shall not affect the validity of the

filing by facsimile, if otherwise proper.

(2) The party submitting the request shall serve a copy of such

request upon all counsel of record or other designated

representative(s) of parties, and upon parties not so represented.

Service upon such counsel or representative shall constitute service

upon the party, but a copy also shall be transmitted to the party.

Service of a request may be made in person or by registered mail,

certified mail, regular mail, or private delivery service. With the

permission of the person receiving the request, service may be made by

facsimile transmission or by any other agreed-upon method.

(b) Filing and service of other documents. (1) Any party submitting

a response to, or other document in connection with, a request for

Panel consideration of an impasse filed pursuant to Sec. 2472.3 shall

file an original and one copy with the Panel. A

[[Page 28802]]

clean copy may be submitted for the original. Documents may be

submitted to the Panel in person or by registered mail, certified mail,

regular mail, or private delivery service. Documents may also be

accepted by the Panel if transmitted to the facsimile machine of its

office, but only with advance permission, which may be obtained by

telephone. A party submitting a document by facsimile shall also file

an original for the Panel's records, but failure to do so shall not

affect the validity of the submission, if otherwise proper.

(2) The party submitting the document shall serve a copy of such

request upon all counsel of record or other designated

representative(s) of parties, or upon parties not so represented.

Service upon such counsel or representative shall constitute service

upon the party, but a copy also shall be transmitted to the party.

Service of a document may be made in person or by registered mail,

certified mail, regular mail, or private delivery service. With the

permission of the person receiving the document, service may be made by

facsimile transmission or by any other agreed-upon method.

* * * * *

(d) The date of service or date served shall be the day when the

matter served, if properly addressed, is deposited in the U.S. mail, is

delivered in person, or is deposited with a private delivery service

that will provide a record showing the date the document was tendered

to the delivery service. Where service is made by facsimile

transmission, the date of service shall be the date on which

transmission is received.

(e) Unless otherwise provided by the Panel or its designated

representatives, any document or paper filed with the Panel under this

part, together with any enclosure filed therewith, shall be typewritten

on 8\1/2\ x 11 inch plain white paper, shall have margins no less than

1 inch on each side, shall be in typeface no smaller than 10 characters

per inch, and shall be numbered consecutively. Nonconforming papers

may, at the Panel's discretion, be rejected.

(f) An impasse arising pursuant to section 6131(c) (2) or (3) of

the Act will not be considered to be filed, and no Panel action will be

taken, until the party initiating the request has complied with

Secs. 2472.4, 2472.5, of this section.

19. Newly designated Sec. 2472.7 is amended by revising paragraph

(b) to read as follows:

Sec. 2472.7 Investigation of request; Panel assistance.

* * * * *

(b) The procedures utilized by the Panel shall afford the parties

an opportunity to present their positions, including supporting

evidence and arguments orally and/or in writing. They include, but are

not limited to: informal conferences with a Panel designee; factfinding

(by a Panel designee or a private factfinder); written submissions;

show cause orders; and oral presentations to the Panel.

20. Newly designated Sec. 2472.8 is revised to read as follows:

Sec. 2472.8 Preliminary hearing procedures.

When the Panel determines that a hearing shall be held, and it

appoints one or more of its designees to conduct such a hearing, it

will issue and serve upon each of the parties a notice of hearing and a

notice of prehearing conference, if any. The notice will state:

(a) The names of the parties to the dispute;

(b) The date, time, place, type, and purpose of the hearing;

(c) The date, time, place, and purpose of the prehearing

conference, if any;

(d) The name of the designated representative(s) appointed by the

Panel;

(e) The issue(s) to be resolved; and

(f) The method, if any, by which the hearing shall be transcribed.

21. Newly designated Sec. 2472.10 is revised to read as follows:

Sec. 2472.10 Reports.

When a report is issued after a hearing conducted pursuant to

Sec. 2472.8 and 2472.9, it normally shall be in writing and shall be

submitted to the Panel, with a copy to each party, within a period

normally not to exceed 30 calendar days after the close of the hearing

and receipt of briefs, if any.

22. In newly designated Sec. 2472.11, the introductory text of

paragraph (a) and paragraph (b) are revised to read as follows:

Sec. 2472.11 Final action by the Panel.

(a) After due consideration of the parties' positions, evidence,

and arguments, including any report submitted in accordance with

Sec. 2472.10, the Panel shall take final action in favor of the

agency's determination if:

* * * * *

(b) If the finding on which an agency determination under 5 U.S.C.

6131(c)(2) or (c)(3) is based is not supported by evidence that the

schedule is likely to cause or has caused an adverse agency impact, the

Panel shall take whatever final action is appropriate.

* * * * *

PART 2473--MISCELLANEOUS REQUIREMENTS

23. Part 2473 is added to read as follows:

Sec.

2473.1 Subpenas.

Authority: 5 U.S.C. 7119, 7134.

Sec. 2473.1 Subpenas.

(a) Any member of the Panel, the Executive Director, or other

person designated by the Panel, may issue subpenas requiring the

attendance and testimony of witnesses and the production of documentary

or other evidence. However, no subpena shall be issued under this

section which requires the disclosure of intramanagement guidance,

advice, counsel, or training within an agency or between an agency and

the Office of Personnel Management.

(b) Where the parties are in agreement that the appearance of

witnesses or the production of documents is necessary, and such

witnesses agree to appear, no such subpena need be sought.

(c) A request for a subpena by any person, as defined in 5 U.S.C.

7103(a)(1), shall be in writing and filed with the Executive Director,

not less than fifteen (15) days prior to the opening of a hearing, or

with the appropriate presiding official(s) during the hearing.

(d) All requests shall name and identify the witnesses or documents

sought, and state the reasons therefor. The Panel, Executive Director,

or any other person designated by the Panel, as appropriate, shall

grant the request upon the determination that the testimony or

documents appear to be necessary to the matters under consideration and

the request describes with sufficient particularity the documents

sought. Service of an approved subpoena is the responsibility of the

party on whose behalf the subpoena was issued. The subpoena shall show

on its face the name and address of the party on whose behalf the

subpoena was issued.

(e) Any person served with a subpoena who does not intend to comply

shall within (5) days after the date of service of the subpoena upon

such person, petition in writing to revoke the subpoena. A copy of any

petition to revoke a subpoena shall be served on the party on whose

behalf the subpoena was issued. Such petition to revoke, if made prior

to the hearing, and a written statement of service, shall be filed with

the Executive Director. A petition to revoke a subpoena filed during

the hearing, and a written statement of service shall be filed with

[[Page 28803]]

the appropriate presiding official(s). The Executive Director, or the

appropriate presiding official(s) will, as a matter of course, cause a

copy of the petition to revoke to be served on the party on whose

behalf the subpoena was issued, but shall not be deemed to assume

responsibility for such service. The Panel, Executive Director, or any

other person designated by the Panel, as appropriate, shall revoke the

subpoena if the evidence the production of which is required does not

relate to any matter under consideration in the proceedings, or the

subpoena does not describe with sufficient particularity the evidence

the production of which is required, or if for any other reason

sufficient in law the subpoena is invalid. The Panel, Executive

Director, or any other person designated by the Panel, as appropriate,

shall make a simple statement of procedural or other ground for the

ruling on the petition to revoke. The petition to revoke, any answer

thereto, and any ruling thereon shall not become part of the official

record except upon the request of the party aggrieved by the ruling.

(f) Upon the failure of any person to comply with a subpoena

issued, upon the request of any party to the proceeding, the Solicitor

of the FLRA shall, on behalf of such party, institute proceedings in

the appropriate district court for the enforcement thereof, unless, in

the judgment of the Solicitor of the FLRA, the enforcement of such

subpoena would be inconsistent with law and the policies of the Federal

Service Labor-Management Relations Statute. The Solicitor of the FLRA

shall not be deemed thereby to have assumed responsibility for the

effective prosecution of the same before the court thereafter.

(g) All papers submitted to the Executive Director under this

section shall be filed in duplicate, along with a statement of service

showing that a copy has been served on the other party to the dispute.

(h)(1) Witnesses (whether appearing voluntarily or under a

subpoena) shall be paid the fee and mileage allowances which are paid

subpoenaed witnesses in the courts of the United States: Provided, that

any witness who is employed by the Federal Government shall not be

entitled to receive witness fees in addition to compensation received

in conjunction with official time granted for such participation,

including necessary travel time, as occurs during the employee's

regular work hours and when the employee would otherwise be in a work

or paid leave status.

(2) Witness fees and mileage allowances shall be paid by the party

at whose instance the witnesses appear except when the witness receives

compensation in conjunction with official time as described in

paragraph (h)(1) of this section.

Dated: May 31, 1996.

By direction of the Panel.

Linda A. Lafferty,

Executive Director, Federal Service Impasses Panel.

[FR Doc. 96-14098 Filed 6-5-96; 8:45 am]

BILLING CODE 6727-01-P