Notice of Opportunity To Submit Comments on Issues Arising Under the Presidential and Executive Accountability Act

FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Chapter XIV

Notice of Opportunity To Submit Comments on Issues Arising Under

the Presidential and Executive Accountability Act

AGENCY: Federal Labor Relations Authority

ACTION: Review of regulations, request for comment.

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SUMMARY: The Federal Labor Relations Authority (FLRA) is providing an

opportunity for all interested persons to comment on issues that have

arisen as the agency carries out its responsibilities under the

Presidential and Executive Office Accountability Act. The FLRA was

directed to issue regulations extending coverage of Chapter 71 of Title

5, United States Code, to the Executive Office of the President no

later than October 1, 1998.

DATES: Responses submitted in response to this notice will be

considered if received by mail or personal delivery in the Authority's

Office of Case Control by 5 p.m. on or before April 17, 1998.

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

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

415, Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Ms. Kim Weaver, Director of External

Affairs, 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 Act) was enacted on October 26, 1996, extending the

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

Executive Office of the President. The Act applies Chapter 71 of Title

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

Statute), to the Executive Office of the President and requires the

FLRA to promulgate regulations to implement the Act, no later than

October 1, 1998. Pursuant to legislative history urging the FLRA to

engage in ``extensive rulemaking,'' the FLRA is requesting comments on

the issues raised below.

The Executive Office of the President (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 pleasure 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 are covered by Title 5, and are civil

service employees serving under the same laws and regulations as other

career executive branch employees. The Title 5 employees work in the

other eight EOP offices, which were covered by Chapter 71 of Title 5

prior to the enactment of the Act.

2. Requirements Placed on the FLRA

The Act 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 Act'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

Act requires that the FLRA's regulations be the same as the substantive

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

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

(COI) or an appearance of a conflict of interest, that a modification

is required. For the remaining eight EOP offices, the Act imposes a

third requirement: the FLRA must also consider the impact of its

regulations on the President's or Vice President's constitutional

responsibilities. This compels the FLRA to review its regulations to

determine whether there are constitutional issues that require the FLRA

to modify its regulations for four of the eight Title 5 offices. See

Table 1-1.

Table. 1-1

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FLRA must review COI &

Previously covered by constitutional

Office [section 401(a)(4)] Type of employee chapter 71 responsibilities

[section 431(d)]

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White House Office.................. Title 3................ No..................... Yes.

Office of the Vice President........ Title 3................ No..................... Yes.

Office of Policy Development........ Title 3................ No..................... Yes.

Executive Residence at the White Title 3................ No..................... Yes.

House.

Official Residence of the Vice Title 3/Title 10....... No..................... No.

President.

Council of Economic Advisers........ Title 5................ Yes.................... Yes.

Council on Environmental Quality.... Title 5................ Yes.................... No.

[[Page 16142]]

National Security Council........... Title 5................ Yes.................... Yes.

Office of Administration............ Title 3/Title 5........ Yes (Title 5 employees) No.

Office of Management and Budget..... Title 5................ Yes.................... Yes.

Office of National Drug Control Title 5................ Yes.................... Yes.

Policy.

Office of Science and Technology Title 5................ Yes.................... No.

Policy.

Office of the US Trade Title 5................ Yes.................... No.

Representative.

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3. Issues on Which Comments Are Requested

The FLRA is reviewing its current regulations to determine whether

any modifications are necessary. As the review process continues, the

FLRA is requesting comment on the following issues:

1. Appropriateness of Bargaining Units and Eligibility

Section 7112 of the Statute gives the FLRA the authority to

determine the appropriateness of any unit. Section 7112(b) discusses

the types of employees who shall not be included in an appropriate

unit. Section 431(d)(1)(B) of the Act states that the Authority ``shall

exclude [employees] from coverage'' if there are any conflict of

interest or constitutional issues. Given the provision of section 7112,

the implementing regulations found at 5 CFR 2421.14, as well as the

requirements of section 431(d)(1)(B), are there factors that should be

included in the FLRA's regulations to address the appropriateness of

units in the EOP?

2. Remedies

Section 431(a) of the Act prohibits the FLRA from ordering

reinstatement as a remedy. Sections 7118(a)(7) and 7105(a)(2)(I) of the

Statute describe the remedial powers of the FLRA. Are there remedial

powers of the FLRA, in addition to reinstatement, that should be

examined in light of the Act's requirements?

3. Security Issues

The FLRA currently has the ability to investigate, prosecute, and

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

discussed. In addition to the precautions already taken in those cases,

are there additional security concerns that the FLRA should consider in

the drafting of its regulations?

4. Conflict of interest/Appearance of Conflict of Interest

Section 431(d)(1)(B)(i) of the Act requires the FLRA to exclude

certain covered employees if the FLRA determines such an exclusion is

required due to a conflict of interest or an appearance of a conflict

of interest. Do the following examples create a conflict or an

appearance of a conflict: (1) the FLRA Chair, General Counsel, and the

members of the Federal Service Impasses Panel serve at the pleasure of

the President, and therefore, are removable at will; or (2) that the

Office of Management and Budget controls the FLRA's budget and the FLRA

does not have so-called ``by-pass'' authority to allow it to request

additional funds from the Congress? Are there other issues that the

FLRA should consider in drafting its regulations?

5. Constitutional Issues

Section 431(d)(1)(B)(ii) of the Act requires the FLRA to exclude

certain covered employees if the FLRA determines such an exclusion is

required due to the President's or Vice President's constitutional

responsibilities. An initial review by the FLRA of the Constitution and

case law outlining the President and Vice President's constitutional

responsibilities did not yield any constitutional issues that would

require modification of current FLRA regulations. Are there any

constitutional issues that should be considered by the FLRA in drafting

the regulations?

6. Political Affiliation

Section 435(g) of the Act states that it:

shall not be a violation of any provision of this chapter to

consider, or make any employment decision based on, the party

affiliation, or political compatibility with the employing office *

* *.

Is there anything in the Statute or FLRA's current regulations that

will conflict with section 435(g)?

7. Head of an Agency

Sections 7102(1), 7114(c)(1)--(3), and 7117(c)(3) of the Statute

reference actions by the ``head of an agency.'' For the purposes of the

EOP operations, who should be considered the ``head of an agency'' for

each EOP office?

Solly Thomas,

Executive Director.

[FR Doc. 98-8649 Filed 4-1-98; 8:45 am]

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