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

SUMMARY: The Federal Service Impasses Panel is amending its

regulations, primarily to take advantage of existing technology and to

make them more easily understood by agencies, labor organizations, and

individuals. The final 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 final new section will establish

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

subpena. These final revisions will make the regulations clearer and

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

procedures.

EFFECTIVE DATE: August 18, 1996.

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

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

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

SUPPLEMENTARY INFORMATION:

Notice and Opportunity to Comment

The Federal Service Impasses Panel proposed revisions to its

regulations to take advantage of existing technology and to make them

more easily understood by agencies, labor organizations, and

individuals. The proposed revisions primarily were for the purpose of

permitting parties to file requests for Panel assistance, and other

documents, by facsimile transmission (Parts 2471 and 2472), and to

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

obtain a subpena (Part 2473). The proposed rules were published in the

Federal Register for notice and comment on June 6, 1996. Formal written

comments were submitted by one agency. The comments have been

considered, and two have prompted revisions to the proposed rules, one

pertaining to Part 2471, the other to Part 2472. These revisions are

noted in the sectional analysis.

Sectional Analysis

The following sectional analysis reflects three revisions to the

proposed changes. The changes involve Part 2471--Procedures of the

Panel (Sec. 2471.6(a)(2)(ii)), Part 2472--Impasses Arising Pursuant to

Agency Determinations Not to Establish or to Terminate Flexible or

Compressed Work Schedules (Sec. 2472.3), and Part 2473--Miscellaneous

Requirements (Sec. 2473.1(f)). For Part 2470--General, and all other

sections of Parts 2471, 2472, and 2473, no sectional analysis is

provided because the final rules are the same as the proposed rules.

Part 2471

Section 2471.6(a)(2)(ii)

Paragraph (a)(2)(ii) lists the most common procedures used by the

Panel, and ends with the sentence: ``Following procedures used by the

Panel, it may issue a report to the parties containing recommendations

for settlement.'' The commenter noted that the sentence was unclear

because it implied that there may be times when the Panel only

recommends methods for settlements instead of issuing a final and

binding decision. If this were the case, because most parties come to

the Panel for a binding decision, the commenter suggested that the

factors considered by the Panel in deciding whether to issue a final

and binding decision or recommendations for settlement should be

spelled out in the regulation. Agreeing that the proposed regulation

may be interpreted to imply that there are times when the Panel's final

action is the issuance of a recommendation for settlement, the final

regulation has been revised to clarify that such recommendations for

settlement, when they occur, are only issued by the Panel prior to

taking final action to resolve the impasse.

Part 2472

Section 2472.3

This section, among other things, updates the Panel's address and

phone number to reflect its current office location. The commenter

recommended that the Panel's facsimile number also be provided. The

final regulation has been revised to include the Panel's facsimile

number.

Part 2473

Section 2473.1(f)

Section 2473.1(f) generally establishes a procedure for the

enforcement of subpenas issued under this part. It has been revised to

be clearer and more consistent with the regulations of the FLRA

pertaining to the same topic (5 CFR 2429.7). It now specifies that,

upon the failure of any person to comply with an issued subpena, the

party on whose behalf the subpena was issued may request the Solicitor

of the FLRA to institute enforcement proceedings in the appropriate

district court, unless to do so would be inconsistent with the law and

policies of the Federal Service Labor-Management Relations Statute.

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 amends 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:

[[Page 41294]]

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, DC. 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.

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

[[Page 41295]]

Panel, it may issue a report to the parties containing recommendations

for settlement prior to taking final action to resolve the impasse.

(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. Sec. 2471.7, the section heading and the introductory text are

revised; (paragraphs (a) and (b), introductory text, are removed, and

paragraphs (b) (1) through (6) are redesignated as (a) through (f)

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 Sec. 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 newly

redesignated 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, DC 20424-0001.

Telephone (202) 482-6670. Facsimile (202) 482-6674. 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, DC 20424-0001.

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

Secs. 2472.7 through 2472.12 [Redesignated as Secs. 2472.6 through

2472.11]

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 of these rules 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 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

[[Page 41296]]

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

Sec. 2472.4, 2472.5, and 2472.6 of these regulations.

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 Sec. 2472.11, the introductory text of paragraph (a) and

paragraph (b) are amended 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.

* * * * *

23. Part 2473 is added to read as follows:

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 subpena is the responsibility of the

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

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

was issued.

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

shall within five (5) days after the date of service of the subpena

upon such person, petition in writing to revoke the subpena. A copy of

any petition to revoke a subpena shall be served on the party on whose

behalf the subpena 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 subpena filed during the

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

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

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

subpena does not describe with sufficient particularity the evidence

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

sufficient in law the subpena 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

[[Page 41297]]

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 subpena issued,

and upon the request of the party on whose behalf the subpena was

issued, the Solicitor of the FLRA shall, on behalf of such party,

institute proceedings in the appropriate district court for the

enforcement thereof, unless to do so 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 subpena)

shall be paid the fee and mileage allowances which are paid subpenaed

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.

(5 U.S.C. 7119, 7134).

Dated: August 2, 1996.

Linda A. Lafferty,

Executive Director, Federal Service Impasses Panel.

[FR Doc. 96-20138 Filed 8-7-96; 8:45 am]

BILLING CODE 6727-01-P