Regulations Implementing Coverage of Federal Sector Labor Relations Laws to the Executive Office of the President

FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2420 through 2423, 2470 and 2472

Regulations Implementing Coverage of Federal Sector Labor

Relations Laws to the Executive Office of the President

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Labor Relations Authority (FLRA) proposes to

revise portions of its regulations in order to carry out its

responsibilities under the Presidential and Executive Office

Accountability Act. The FLRA was directed to issue regulations

implementing coverage of the Federal Service Labor-Management Relations

Statute to the Executive Office of the President no later than October

1, 1998. The FLRA is also providing an opportunity for all interested

persons to comment on an issue that has arisen during the consideration

of these regulatory revisions.

DATES: Comments must be received on or before July 31, 1998.

ADDRESSES: Mail or deliver written comments to the Office of Case

Control, Federal Labor Relations Authority, 607 14th Street, NW.,

Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Peter Constantine, Director, Office of

Case Control, at the address listed above or by telephone # (202) 482-

6500.

SUPPLEMENTARY INFORMATION:

1. Background

The Presidential and Executive Office Accountability Act (Pub. L.

104-331) (the EOAA) was enacted on October 26, 1996, extending the

coverage of eleven civil rights, labor, and employment laws to the

Executive Office of the President (EOP). The EOAA applies Chapter 71 of

Title 5, the Federal Service Labor-Management Relations Statute (the

Statute), to the EOP and requires the FLRA to promulgate regulations to

implement the EOAA, no later than October 1, 1998.

The EOP is comprised of thirteen separate offices: The White House

Office, the Executive Residence at the White House, the Office of the

Vice President, the Official Residence of the Vice President, the

Office of Policy Development, the Council of Economic Advisors, the

Council on Environmental Quality and Office of Environmental Quality,

the National Security Council, the Office of Administration, the Office

of Management and Budget, the Office of National Drug Control Policy,

the Office of Science and Technology, and the Office of the United

States Trade Representative.

According to House Report No. 104-820 (110 Stat. 4375), there are

roughly 1,700 employees working in the EOP. Less than one-third of

these are Title 3 employees, who traditionally serve at the discretion

of the President. The Title 3 employees work in the White House Office,

the Office of the Vice President, the Office of Policy Development, the

Executive Residence, and the Official Residence of the Vice President.

The remaining 1,150 employees working in the other eight EOP offices

are covered by Title 5, and are civil service employees serving under

the same laws and regulations as other career executive branch

employees. These Title 5 employees previously covered by Chapter 71 of

Title 5, are now covered under the provisions of the EOAA.

2. Requirements placed on the FLRA

The EOAA contains a general requirement that the FLRA issue

regulations for the EOP that are the same as the substantive

regulations promulgated by the FLRA for all other agencies under its

jurisdiction. This general requirement applies differently, however,

depending on the EOAA's classification of the EOP offices.

With respect to the first group of five designated offices (the

Council on Environmental Quality, the Office of Administration, the

Office of Science and Technology Policy, the Office of the U.S. Trade

Representative, and the Official Residence of the Vice President), the

EOAA requires that the FLRA's regulations be the same as the

regulations that apply to other agencies, except to the extent that the

Authority determines for good cause, or to avoid a conflict of interest

or an appearance of a conflict of interest, that a modification is

required. For the remaining eight EOP offices, the EOAA requires that

the FLRA exclude from coverage employees if the FLRA determines that

exclusion is required because of a conflict of interest, an appearance

of a conflict of interest, or the President's or Vice President's

constitutional responsibilities.

3. Prior Federal Register Notice

The FLRA published a Federal Register notice (63 FR 16141, Apr. 2,

1998) inviting parties to submit written recommendations on what, if

any, modifications to the FLRA's current regulations were necessary to

satisfy the requirements of the EOAA. Specifically, the FLRA asked for

comments regarding: Appropriate bargaining units under section 7112 of

the Statute and section 431(d)(1)(B) of the EOAA; appropriate remedies

for statutory violations based upon section 431(a) of the EOAA and

sections 7118(a)(7) and 7105(a)(2)(I) of the Statute; possible security

issues based upon the FLRA's ability to investigate, prosecute, and

adjudicate cases in which non-public information could be at issue or

discussed; possible conflict of interest/appearance of conflict of

interest issues based upon section 431(d)(1)(B)(i) of the EOAA;

possible constitutional issues based upon section 431(d)(1)(B)(ii) of

the EOAA; concerns regarding political affiliation; and appropriate

designation of the ``head of an agency'' under sections 7102(1),

7114(c)(1)-(3), and 7117(c)(3) of the Statute for each EOP office. No

comments were received specifically in response to the notice.

Additionally, the FLRA informally invited comment directly from

interested persons. In response, one comment noted that during the

FLRA's investigation, prosecution, and adjudication of cases involving

the EOP, the FLRA may receive documents that otherwise would not be

subject to public disclosure through the Freedom of Information Act

(FOIA). As the FLRA continues to review its regulations to determine

whether modifications are necessary in light of the EOAA, the FLRA is

requesting comments on this issue of information disclosure and the

interests of the EOP. Once the FLRA receives comments, it will consider

rulemaking on this issue, if necessary.

[[Page 35883]]

4. Summary of Amendments

As a result of the enactment of the EOAA, a number of amendments to

the FLRA's regulations are necessary.

A. Section 2420.1 Purpose and scope

The FLRA proposes to amend this section to reflect the fact that

the EOAA has made applicable Chapter 71 of Title 5 to the EOP.

B. Section 2421.2 Terms defined in 5 U.S.C. 7103(a)

The FLRA proposes to amend this section to incorporate applicable

definitions found in the EOAA.

C. Section 2421.14 Appropriate unit

The FLRA proposes to amend this section to reflect that when making

bargaining unit determinations for the eight offices listed in 3 U.S.C.

431(d)(2), pursuant to section 431 of the EOAA, the Regional Director

shall exclude employees if it is determined that such exclusion is

required because of a conflict of interest, an appearance of a conflict

of interest, or the President's or Vice President's constitutional

duties.

D. Section 2422.34(b) Rights and obligations during the pendency of

representation proceedings

The FLRA proposes to amend this section to include 3 U.S.C.

431(d)(2) as one of the statutory grounds for a party to take action

regarding the bargaining unit status of individual employees.

E. Section 2423.41 Action by the Authority; compliance with Authority

decisions and orders

The FLRA proposes to amend this section to reflect that, with

regard to employees covered by section 431 of the EOAA, on finding a

violation, the Authority may not issue an order of reinstatement.

F. Section 2470.1 Purpose

The FLRA proposes to amend this section to reflect the fact that

the EOAA has made applicable chapter 71 of title 5 to the Executive

Office of the President.

G. Section 2470.2 Definitions

The FLRA proposes to amend this section to incorporate applicable

definitions found in the EOAA.

H. Section 2472.1 Purpose

The FLRA proposes to amend this section to clarify that the

regulations contained in this part do not apply to employing offices,

employees, and representatives of those employees, who are subject to

the provisions of the EOAA.

Regulatory Flexibility Act Certification

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5

U.S.C. 605(b), the FLRA has determined that this regulation, as

amended, will not have a significant economic impact on a substantial

number of small entities. The amendments are required so that the FLRA

can carry out its responsibilities under the EOAA.

Unfunded Mandates Reform Act of 1995

This rule change will not result in the expenditure by state,

local, and tribal governments, in the aggregate, or by the private

sector, of $100,000,000 or more in any one year, and it will not

significantly or uniquely affect small government. Therefore, no

actions were deemed necessary under the provisions of the Unfunded

Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This action is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Fairness Act of 1996. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

The amended regulations contain no additional information

collection or record keeping requirement under the Paperwork Reduction

Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Parts 2420, 2421, 2422, 2423, 2470, and

2472

Administrative practice and procedure, Government employees, Labor-

management relations.

For the reasons stated in the preamble, the FLRA proposes to amend

parts 2420, 2421, 2422, 2423, 2470, and 2472 of chapter XIV, title 5 of

the Code of Federal Regulations as follows:

PART 2420--PURPOSE AND SCOPE

1. The authority citation for part 2420 is revised to read as

follows:

Authority: 3 U.S.C. 431; 5 U.S.C. 7134.

2. The introductory text of Sec. 2420.1 is revised to read as

follows:

Sec. 2420.1 Purpose and scope.

The regulations contained in this subchapter are designed to

implement the provisions of chapter 71 of title 5 and, where

applicable, section 431 of title 3 of the United States Code. They

prescribe the procedures, basic principles or criteria under which the

Federal Labor Relations Authority or the General Counsel of the Federal

Labor Relations Authority, as applicable, will:

* * * * *

PART 2421--MEANING OF TERMS AS USED IN THIS SUBCHAPTER

1. The authority citation for part 2421 is revised to read as

follows:

Authority: 3 U.S.C. 431; 5 U.S.C. 7134.

2. In Sec. 2421.2, paragraph (a) is revised to read as follows:

Sec. 2421.2 Terms defined in 5 U.S.C. 7103(a); General Counsel;

Assistant Secretary.

(a) The terms person, employee, agency, labor organization, dues,

Authority, Panel, collective bargaining agreement, grievance,

supervisor, management official, collective bargaining, confidential

employee, conditions of employment, professional employee, exclusive

representative, firefighter, and United States, as used herein shall

have the meanings set forth in 5 U.S.C. 7103(a). The terms covered

employee, employee, employing office, and agency, when used in

connection with the Presidential and Executive Office Accountability

Act, 3 U.S.C. 401 et seq., shall have the meaning set out in 3 U.S.C.

401(b), 431(b) and (d)(2). Employees who are employed in the eight

offices listed in 3 U.S.C. 431(d)(2) are excluded from coverage if the

Authority determines that such exclusion is required because of a

conflict of interest, an appearance of a conflict of interest, or the

President's or Vice President's constitutional responsibilities, in

addition to the exemptions currently set forth in 5 U.S.C. 7103(a).

* * * * *

3. Section 2421.14 is revised to read as follows:

Sec. 2421.14 Appropriate unit.

Appropriate unit means that grouping of employees found to be

appropriate for purposes of exclusive recognition under 5 U.S.C. 7111,

and for purposes of allotments to representatives under 5 U.S.C.

7115(c), and consistent with the provisions of 5 U.S.C. 7112. For the

eight offices listed in 3 U.S.C. 431(d)(2), in determining whether

particular employees are to be included in an appropriate unit in a

proceeding under part 2422 of this chapter, the Regional

[[Page 35884]]

Director shall exclude employees if it is determined that such

exclusion is required because of a conflict of interest or appearance

of a conflict of interest or because of the President's or Vice

President's constitutional responsibilities, in addition to the

standards set out in 5 U.S.C. 7112.

PART 2422--REPRESENTATION PROCEEDINGS

1. The authority citation for part 2422 is revised to read as

follows:

Authority: 3 U.S.C. 431; 5 U.S.C. 7134.

2. In Sec. 2422.34, paragraph (b) is revised to read as follows:

Sec. 2422.34 Rights and obligations during the pendency of

representation proceedings.

* * * * *

(b) Unit status of individual employees. Notwithstanding paragraph

(a) of this section and except as otherwise prohibited by law, a party

may take action based on its position regarding the bargaining unit

status of individual employees, pursuant to 3 U.S.C. 431(d)(2), 5

U.S.C. 7103(a)(2), and 7112(b) and (c): Provided, however, that its

actions may be challenged, reviewed, and remedied where appropriate.

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

1. The authority citation for part 2423 is revised to read as

follows:

Authority: 3 U.S.C. 431; 5 U.S.C. 7134.

2. In Sec. 2423.41, paragraph (c) is amended to read as follows:

Sec. 2423.41 Action by the Authority; compliance with Authority

decisions and orders.

* * * * *

(c) Authority's order. Upon finding a violation, the Authority

shall, in accordance with 5 U.S.C. 7118(a)(7), issue an order directing

the violator, as appropriate, to cease and desist from any unfair labor

practice, or to take any other action to effectuate the purposes of the

Federal Service Labor-Management Relations Statute. With regard to

employees covered by 3 U.S.C. 431, upon finding a violation, the

Authority's order may not include an order of reinstatement, in

accordance with 3 U.S.C. 431(a).

* * * * *

PART 2470--GENERAL

1. The authority citation for part 2470 is revised to read as

follows:

Authority: 3 U.S.C. 431; 5 U.S.C. 7119, 7134.

2. Section 2470.1 is revised to read as follows:

Sec. 2470.1 Purpose.

The regulations contained in this subchapter are intended to

implement the provisions of section 7119 of title 5 and, where

applicable, section 431 of title 3 of the United States Code. They

prescribe procedures and methods which the Federal Service Impasses

Panel may utilize in the resolution of negotiation impasses when

voluntary arrangements, including the services of the Federal Mediation

and Conciliation Service or any other third-party meditation, fail to

resolve the disputes. 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.

3. In Sec. 2470.2, paragraph (a) is revised to read as follows:

Sec. 2470.2 Definitions.

(a) The terms agency, labor organization, and conditions of

employment as used herein shall have the meaning set forth in 5 U.S.C.

7103(a). When used in connection with 3 U.S.C. 431, the term agency as

used in the Panel's regulations means an employing office as defined in

3 U.S.C. 401(a)(4).

* * * * *

PART 2472--IMPASSES ARISING PURSUANT TO AGENCY DETERMINATIONS NOT

TO ESTABLISH OR TO TERMINATE FLEXIBLE OR COMPRESSED WORK SCHEDULES

1. The authority citation for part 2472 is revised to read as

follows:

Authority: 5 U.S.C. 6131.

2. Section 2472.1 is revised to read as follows:

Sec. 2472.1 Purpose.

The regulations contained in this part are intended to implement

the provisions of section 6131 of title 5 of the United States Code,

but are not applicable to actions covered by section 431 of title 3 of

the United States Code. They prescribe procedures and methods which the

Federal Service Impasses Panel may utilize in the resolution of

negotiations impasses arising from agency determinations not to

establish or to terminate flexible and compressed work schedules.

Dated: June 26, 1998.

Kevin Kopper,

Director, Budget & Finance Division.

[FR Doc. 98-17503 Filed 6-30-98; 8:45 am]

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