# 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

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## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** June 6, 1996
- **Citation:** 61 FR 28798

## Text

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.

-----------------------------------------------------------------------

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-14098. Public record. Not legal advice.