1 July 1998
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html

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

[Federal Register: July 1, 1998 (Volume 63, Number 126)]
[Proposed Rules]
[Page 35882-35884]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy98-30]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

[[Page 35882]]

=======================================================================
-----------------------------------------------------------------------

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.

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

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]
BILLING CODE 6727-01-P
