[Congressional Record Volume 142, Number 74 (Thursday, May 23, 1996)]
[House]
[Pages H5563-H5568]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOTICE OF PROPOSED RULEMAKING

                                                    U.S. Congress,


                                         Office of Compliance,

                                     Washington, DC, May 22, 1996.
     Hon. Newt Gingrich,
     Speaker of the House, U.S. House of Representatives, 
         Washington, DC.
       Dear Mr. Speaker: Pursuant to Section 304(b) of the 
     Congressional Accountability Act of 1995 (2 U.S.C. 
     Sec. 1384(b)), I am transmitting on behalf of the Board of 
     Directors the enclosed notice of proposed rulemaking for 
     publication in the Congressional Record. The notice, which 
     the Board has approved, is being issued pursuant to 
     Sec. 220(e).
       The Congressional Accountability Act specifies that the 
     enclosed notice be published on the first day on which both 
     Houses are in session following this transmittal.
           Sincerely,
                                                    Glen D. Nager,
                                               Chair of the Board.


                          office of compliance

       The Congressional Accountability Act of 1995: Extension of 
     Rights, Protections and Responsibilities Under Chapter 71 of 
     Title 5, United States Code, Relating to Federal Service 
     Labor-Management Relations (Regulations under section 220(e) 
     of the Congressional Accountability Act).


                     notice of proposed rulemaking

       Summary: The Board of Directors of the Office of Compliance 
     is publishing proposed regulations to implement section 220 
     of the Congressional Accountability Act of 1995 (``CAA'' or 
     ``Act''), Pub. L. 104-1, 109 Stat. 3. Specifically, these 
     proposed regulations are published pursuant to section 220(e) 
     of the CAA.
       The provisions of section 220 are generally effective 
     October 1, 1996. 2 U.S.C. section 1351. However, as to 
     covered employees of certain specified employing offices, the 
     rights and protections of section 220 will be effective on 
     the effective date of Board regulations authorized under 
     section 220(e). 2 U.S.C. section 1351(f).
       The proposed regulations set forth herein, which are 
     published under section 220(e) of the Act, are to be applied 
     to certain employing offices of the Senate, the House of 
     Representatives, and the Congressional instrumentalities and 
     employees of the Senate, the House of Representatives, and 
     the Congressional instrumentalities. These regulations set 
     forth the recommendations of the Deputy

[[Page H5564]]

     Executive Director for the Senate, the Deputy Executive 
     Director for the House of Representatives and, the Executive 
     Director, Office of Compliance, as approved by the Board of 
     Directors, Office of Compliance. A Notice of Proposed 
     Rulemaking under section 220(d) is being published 
     separately.
       Dates: Comments are due within 30 days after publication of 
     this notice in the Congressional Record.
       Addresses: Submit written comments (an original and 10 
     copies) to the Chair of the Board of Directors, Office of 
     Compliance, Room LA 200, John Adams Building, 110 Second 
     Street, S.E., Washington, DC 20540-1999. Those wishing to 
     receive notification of receipt of comments are requested to 
     include a self-addressed, stamped post card. Comments may 
     also be transmitted by facsimile (``FAX'') machine to (202) 
     426-1913. This is not a toll-free call. Copies of comments 
     submitted by the public will be available for review at the 
     Law Library Reading Room, Room LM-201, Law Library of 
     Congress, James Madison Memorial Building, Washington, DC, 
     Monday through Friday, between the hours of 9:30 a.m. and 
     4:00 p.m.
       For Further Information Contact: Executive Director, Office 
     of Compliance at (202) 724-9250. This notice is also 
     available in the following formats: large print, braille, 
     audio tape, and electronic file on computer disk. Requests 
     for this notice in an alternative format should be made to 
     Mr. Russell Jackson, Director, Service Department, Office of 
     the Sergeant at Arms and Doorkeeper of the Senate, (202) 224-
     2705.
       SUPPLEMENTARY INFORMATION:
     I. Introduction
       The Congressional Accountability Act of 1995 (``CAA'' or 
     ``Act'') was enacted into law on January 23, 1995. In 
     general, the CAA applies the rights and protections of eleven 
     federal labor and employment law statutes to covered 
     Congressional employees and employing offices. Section 220 of 
     the CAA addresses the application of chapter 71 of title 5, 
     United States Code (``chapter 71''), relating to Federal 
     Service Labor-Management Relations. Section 220(a) of the CAA 
     applies the rights, protections, and responsibilities 
     established under sections 7102, 7106, 7111 through 7117, 
     7119 through 7122, and 7131 of chapter 71 to employing 
     offices, covered employees, and representatives of covered 
     employees. These provisions protect the legal right of 
     certain covered employees to organize and bargain 
     collectively with their employing offices within statutory 
     and regulatory parameters.
       Section 220(d) of the Act requires the Board of Directors 
     of the Office of Compliance (``Board'') to issue regulations 
     to implement section 220 and further states that, except as 
     provided in subsection (e), such regulations ``shall be the 
     same as substantive regulations promulgated by the Federal 
     Labor Relations Authority (``FLRA'') to implement the 
     statutory provisions referred to in subsection (a) except--
       (A) to the extent that the Board may determine, for good 
     cause shown and stated together with the regulations, that a 
     modification of such regulations would be more effective for 
     the implementation of rights and protections under this 
     section, or
       (B) as the Board deems necessary to avoid a conflict of 
     interest or appearance of conflict of interest.''
     The Board has separately published a Notice of Proposed 
     Rulemaking with respect to the issuance of regulations 
     pursaunt to section 220(d).
       Section 220(e)(1) of the CAA requires that the Board also 
     issue regulations ``on the manner and extent to which the 
     requirements and exemptions of chapter 71 [] should apply to 
     covered employees who are employed in the offices listed in'' 
     section 220(e)(2). The offices listed in section 220(e)(2) 
     are:
       (A) the personal office of any Member of the House of 
     Representatives or of any Senator;
       (B) a standing select, special, permanent, temporary, or 
     other committee of the Senate or House of Representatives, or 
     a joint committee of Congress;
       (C) the Office of the Vice President (as President of the 
     Senate), the Office of the President pro tempore of the 
     Senate, the Office of the Majority Leader of the Senate, the 
     Office of the Minority Leader of the Senate, the Office of 
     the Majority Whip of the Senate, the Conference of the 
     Majority of the Senate, the Conference of the Minority of the 
     Senate, the Office of the Secretary of the Conference for the 
     Majority of the Senate, the Office of the Secretary for the 
     Minority of the Senate, the Majority Policy Committee of the 
     Senate, the Minority Policy Committee of the Senate, and the 
     following offices within the Office of the Secretary of the 
     Senate: Offices of the Parliamentarian, Bill Clerk, 
     Legislative Clerk, Journal Clerk, Executive Clerk, Enrolling 
     Clerk, Official Reporters of Debate, Daily Digest, Printing 
     Services, Captioning Services, and Senate Chief Counsel for 
     Employment;
       (D) the Office of the Speaker of the House of 
     Representatives, the Office of the Majority Leader of the 
     House of Representatives, the Office of the Minority Leader 
     of the House of Representatives, the Offices of the Chief 
     Deputy Majority Whips, the Offices of the Chief Deputy 
     Minority Whips, and the following offices within the Office 
     of the Clerk of the House of Representatives: Offices of 
     Legislative Operations, Official Reporters of Debate, 
     Official Reporters to Committees, Printing Services, and 
     Legislative Information;
       (E) the Office of the Legislative Counsel of the Senate, 
     the Office of the Senate Legal Counsel, the Office of the 
     Legislative Counsel of the House of Representatives, the 
     Office of the General Counsel of the House of 
     Representatives, the Office of the Parliamentarian of the 
     House of Representatives, and the Office of the Law Revision 
     Counsel;
       (F) the offices of any caucus or party organization;
       (G) the Congressional Budget Office, the Office of 
     Technology Assessment, and the Office of Compliance; and;
       (H) such other offices that perform comparable functions 
     which are identified under regulations of the Board.

     These offices shall be collectively referred to as the 
     ``section 220(e)(2) offices.''
       Section 220(e)(1) provides that the regulations which the 
     Board issues to apply chapter 71 to covered employees in 
     section 220(e)(2) offices ``shall, to the greatest extent 
     practicable, be consistent with the provisions and purposes 
     of chapter 71 [] and of [the CAA].'' To this end, section 
     220(e)(1) mandates that such regulations ``shall be the same 
     as substantive regulations issued by the Federal Labor 
     Relations Authority under such chapter'' with two separate 
     and distinct provisos:
       First, section 220(e)(1), like every other CAA section 
     requiring the Board to issue implementing regulations (i.e., 
     sections 202(d)(2), 203(c)(2), 204(c)(2), 205(c)(2), 
     206(c)(2), 215(d)(2)), authorizes the Board to modify the 
     FLRA's regulations ``(A) to the extent that the Board may 
     determine, for good cause shown and stated together with the 
     regulation, that a modification of such regulations would be 
     more effective for the implementation of the rights and 
     protections under this section.''
       Second, independent of section 220(e)(1), section 220(e)(2) 
     requires the Board to issue regulations that ``exclude from 
     coverage under this section any covered employees who are 
     employed in offices listed in [section 220(e)(2)] if the 
     Board determines that such exclusion is required because of--
       (i) a conflict of interest or appearance of a conflict of 
     interest; or
       (ii) Congress' constitutional responsibilities.''
       The provisions of section 220 are effective October 1, 
     1996, except that, ``[w]ith respect to the offices listed in 
     subsection (e)(2), to the covered employees of such offices, 
     and to representatives of such employees, [section 220] shall 
     be effective on the effective date of regulations under 
     subsection (e).''
     II. The Advance Notice of Proposed Rulemaking
       A. Issues for Comment that Relate to Section 220(e)
       The Board sought comment on two issues related to section 
     220(e)(1)(A): (1) Whether and to what extent the Board should 
     modify the regulations promulgated by the FLRA for 
     application to employees in section 220(e)(2) offices? (2) 
     Whether the Board should issue additional regulations 
     concerning the manner and extent to which the requirements 
     and exemptions of chapter 71 apply to employees in section 
     220(e)(2) offices?
       The Board sought comment on four issues related to section 
     220(e)(1)(B): (1) What are the constitutional 
     responsibilities and/or conflicts of interest (real or 
     apparent) that would require exclusion of employees in 
     section 220(e) offices from coverage under section 220 of the 
     CAA? (2) Whether determinations as to such exclusions should 
     be made on an office-wide basis or on the basis of job duties 
     and functions? (3) Which job duties and functions in section 
     220(e) offices, if any, should be excluded from coverage, and 
     what is the legal and factual basis for any such exclusion? 
     (4) Are there any offices not listed in section 220(e)(2) 
     that are candidates for the application of the section 
     220(e)(1)(B) exclusion and, if so, why?
       In seeking comment on the issues related to section 220(e) 
     regulations, the Board emphasized that it needed detailed 
     legal and factual support for any proposed modifications in 
     the FLRA's regulations and for any additional proposed 
     regulations implementing sections 220(e)(1)(A) and (B).
       B. Summary of Comments Received
       The Board did not receive any comments on issues arising 
     under section 220(e)(1)(A), and received only two comments on 
     issues arising under section 220(e)(1)(B). These two comments 
     addressed the issue of whether the Board should grant a 
     blanket exclusion for all covered employees in the section 
     220(e)(2) offices. The Board summarizes those two comments 
     here.
       One commenter argued that nothing in the CAA warrants any 
     categorical exclusions from coverage. The commenter argued 
     that the CAA's instruction to the Board to issue regulations 
     which ``to the greatest extent practical'' are ``consistent 
     with the provisions and purposes of chapter 71'' invites 
     coverage as broad in scope as chapter 71 provides for 
     Executive Branch employees. The commenter argued that section 
     220(e)(1)(B) is an exception to the general rule mandating 
     coverage and that Congress did not purport to find that any 
     covered employees necessarily qualified for application of 
     such an exception. The commenter further argued that the 
     legislative history of section 220(e) indicates that Congress 
     simply authorized the Board to determine whether covered 
     employees in section 220(e)(2) offices should be excluded 
     without in any way suggesting that they should be excluded.

[[Page H5565]]

       The commenter then pointed out that, like Congress, the 
     President is charged with constitutional responsibilities and 
     that executive branch employees (other than statutorily 
     excepted employees) are nonetheless free to join and be 
     represented by unions of their choice. The commenter urged 
     that there is nothing in the functions of the legislative 
     branch that suggests that union representation of legislative 
     branch employees is any different than union representation 
     of executive branch employees (or that it poses any unique 
     concerns). From this argument, the commenter concluded that 
     no blanket exemption of all of the employees in section 
     220(e)(2) offices is warranted; and the commenter urged that 
     its conclusion is supported by the overall policy of the CAA 
     to bind Congress to the same set of rules that other 
     employers face.
       The second commenter took the position that all of the 
     covered employees in a number of the section 220(e)(2) 
     offices should receive a blanket exemption from coverage 
     under section 220. In support of this argument, the commenter 
     first described the Senate's constitutional responsibilities 
     to exercise the legislative authority of the United States; 
     to ``make all laws which shall be necessary and proper for 
     carrying into Execution'' its enumerated powers; to advise 
     and consent to treaties and certain presidential nominations; 
     and to try matters of impeachments. The commenter then stated 
     that, in fulfilling these responsibilities, the Senate must 
     be ``free from improper influence from outside sources so 
     that Members can fairly represent the interests of the United 
     States and its citizens.'' The commenter asserted that 
     exclusion from coverage of all employees in Senators' 
     personal offices is necessary to insulate the legislative 
     process from improper influence by outside parties.
       In so stating, the commenter recognized that a number of 
     such employees would already be excluded under chapter 71, 
     but argued that the participation of any employee of a 
     Senator's office in a labor organization would ``interfere 
     with the Senator's constitutional responsibilities, [ ] allow 
     unions to obtain an undue advantage in the legislative 
     process and to exercise improper influence over Members, and 
     [ ] create conflicts of interest.'' The commenter asserted 
     that allowing such employees to organize would ``provide 
     labor unions with unprecedented access to and influence over 
     the operations and legislative activities of Senators' 
     personal offices'' and turn the collective bargaining 
     process into ``a lobbying tool of organized labor''.
       The commenter contended that union representation of 
     employees in a Senator's personal office also could create 
     significant conflicts of interest, both because legislation 
     that affects union or management rights may have a direct 
     impact on a Senator's bargaining position with an employee 
     union, and because a Senator's voting position may be tainted 
     by the appearance that he or she is affected by the position 
     of the employee union. The commenter also claimed that 
     payment of union dues by a Senator's employees could create 
     the perception of a conflict of interest, because Senate 
     employees may not make political contributions to their 
     employer, but the employees may nonetheless pay dues to a 
     union that, in turn, contributes to that employer. The 
     commenter further argued that, if a Senator's employees are 
     permitted to organize, they may develop conflicting loyalties 
     that could render them politically incompatible with the 
     Senator for whom they work. The commenter contended that it 
     would be an unfair labor practice for an employer to 
     discharge an employee because of union affiliation even if 
     that union affiliation led to political incompatibility, thus 
     allegedly eviscerating section 502 of the CAA (which is said 
     to authorize an employing office to discharge an employee 
     based on such incompatibility). Finally, the commenter 
     asserted that, if employees of Senators' offices are granted 
     the right to organize, they will be the only employees of 
     Federal elected officials who are organized.
       The commenter also took the position that the concerns 
     stated regarding union organization in Senators' personal 
     offices are equally applicable to employees in Senate 
     leadership and committee offices. The commenter further 
     asserted that employees in offices under the jurisdiction of 
     the Secretary of the Senate (Offices of the Parliamentarian, 
     Bill Clerk, Legislative Clerk, Journal Clerk, Executive 
     Clerk, Enrolling Clerk, Official Reporters of Debate, Daily 
     Digest and Printing Services, Office of Senate Chief Counsel 
     for Employment) should be excluded from coverage because they 
     allegedly occupy confidential positions that are integral to 
     the Senate's constitutional functions. The commenter also 
     asserted that employees in the Office of the Senate Chief 
     Counsel for Employment should be excluded because attorneys 
     in that office will engage in labor negotiations on behalf of 
     management in Senate offices and because all employees in the 
     office have access to privileged and confidential 
     information. The commenter similarly stated that employees in 
     the Office of the Legislative Counsel and the Office of the 
     Senate Legal Counsel should be excluded because they have 
     direct access to privileged and confidential information 
     relating to the constitutional functions of the Senate.
       Finally, the commenter contended that, pursuant to 
     220(e)(2)(H), employees in four other offices should be 
     subject to a blanket exclusion. Employees in the Executive 
     Office of the Secretary of the Senate, because they are privy 
     to confidential information about both the legislative 
     functions of the Senate and the labor management policies of 
     the Office of the Secretary; employees in the Office of 
     Senate Security, because they have access to highly sensitive 
     and confidential information relating to the constitutional 
     responsibilities of the Senate, as well as to matters of 
     national security; employees in the Senate Disbursing Office, 
     because they have access to confidential financial 
     information that could enhance a union's bargaining position; 
     and employees in the Administrative Office of the Sergeant at 
     Arms, because they have access to confidential information 
     about the office and the Senate.
     III. Notice of Proposed Rulemaking
       In developing its proposed regulations, the Board has 
     carefully considered both its responsibilities under section 
     220(e) and the two directly contradictory comments that the 
     Board received concerning the regulations that it must issue. 
     For the reasons that follow, the Board's judgment is that a 
     blanket exclusion of all of the employees in the section 
     220(e)(2) offices is not ``required'' under the stated 
     statutory criteria. But the Board will propose regulations 
     that allow the exclusion issue to be raised with respect to 
     any particular employee in any particular case. The Board 
     also urges commenters who support any categorical exclusions, 
     in commenting on these proposed regulations, to explain why 
     particular jobs or job duties require exclusion of particular 
     employees so that the Board may exclude them by regulation, 
     where appropriate. Through this initial regulation and any 
     categorical exclusions that may appropriately be included in 
     its final regulations, the Board intends to carry out its 
     statutory responsibility under section 220(e) to exclude 
     employees from coverage where required, and to make changes 
     in the FLRA's regulations where necessary.
       A. Section 220(e)(1)(A)
       Section 220(e)(1)(A) authorizes the Board to modify the 
     FLRA's regulations ``to the extent that the Board may 
     determine, for good cause shown and stated together with the 
     regulation, that a modification of such regulations would be 
     more effective for the implementation of the rights and 
     protections under [section 220(e)].'' No commenter took the 
     position that there was good cause to modify the FLRA 
     regulations for more effective implementation of section 
     220(e). Equally important, no commenter took the position 
     that a blanket exclusion of all of the covered employees in 
     any of the section 220(e) offices would be ``more effective 
     for the implementation of the rights and protections under 
     [section 220(e)].'' And, at present, the Board has not 
     independently found any basis to exercise its authority to 
     modify the FLRA regulations for more effective implementation 
     of section 220(e). The Board therefore does not propose to 
     issue separate regulations pursuant to section 220(e)(1)(A)--
     that is, except as to employees whose exclusion from coverage 
     under section 220 is required, the Board proposes that the 
     regulations that it issues under section 220(d) will apply to 
     employing offices, covered employees, and their 
     representatives under section 220(e).
       B. Section 220(e)(1)(B)
       Section 220(e)(1)(B) provides that the Board ``shall 
     exclude from coverage under [section 220] any covered 
     employees in [section 220(e)(2) offices] if the Board 
     determines that such exclusion is required because of--
       (i) a conflict of interest or appearance of a conflict of 
     interest; or
       (ii) Congress' constitutional responsibilities.''

     The question here for resolution, then, is to what extent the 
     Board should exclude covered employees in the section 
     220(e)(2) offices from coverage.

    1. The statutory language and legislative history indicate that 
 exclusions are proper only where ``required'' by the stated statutory 
                                criteria

       Section 220(e)(1)(B) states that the Board ``shall'' 
     exclude any covered employee of a section 220(e)(2) office 
     where such exclusion is ``required'' by the stated statutory 
     criteria. The statutory specification that the exclusion be 
     ``required'' by Congress' constitutional responsibilities or 
     a conflict of interest is telling. In this context, the term 
     ``required'' means ``insist[ed] upon usu[ally] with certainty 
     and urgency.'' See Webster's Third New International 
     Dictionary (1986); see also Black's Law Dictionary (4th ed. 
     1968) (``direct[ed], order[ed], demand[ed], instruct[ed], 
     command[ed]''). Thus, merely being helpful to or in 
     furtherance of the stated statutory criteria is 
     insufficient; rather, the exclusion must be necessary to 
     the conduct of Congress's constitutional responsibilities 
     or to the avoidance of a conflict of interest (real or 
     apparent).
       Although legislative history should always be consulted 
     with due care and regard for its limitations, the scant 
     legislative history directly attached to section 220(e)(1)(B) 
     here appears to confirm that exclusions are proper only where 
     necessary to achieve the stated statutory criteria. See 141 
     Cong. Rec. S626 (section-by-section analysis of CAA). What is 
     now section 220(e) was added to a predecessor to the CAA in 
     October 1994 in the Senate Governmental Affairs Committee. 
     The Committee's Report explains that this provision was added 
     in response to several Members' concerns that the application 
     of labor laws to the legislative offices might interfere with 
     Congress' ability to fulfill its constitutional functions: 
     ``For example, there was a

[[Page H5566]]

     concern that, if legislative staff belonged to a union, that 
     union might be able to exert undue influence over legislative 
     activities or decisions. Even if such a conflict of interest 
     between employees' official duties and union membership did 
     not actually occur, the mere appearance of undue influence or 
     access might be very troubling. Furthermore, there is a 
     concern that labor actions could delay or disrupt vital 
     legislative activities.'' [S. Rep. No. 397, 103d Cong., 2d 
     Sess. 8 (1994).]
       The Report went on to explain that the proposed bill 
     addressed the Members' concerns in two ways: First, rather 
     than applying the National Labor Relations Act (``NLRA'') to 
     Congress, the bill would apply chapter 71 whose ``provisions 
     and precedents . . . address problems of conflict of interest 
     in the governmental context and . . . prohibit strikes and 
     slowdowns.'' Second, ``as an extra measure of precaution,'' 
     the bill would not apply to the section 220(e)2) offices 
     ``until the Board has conducted a special rulemaking to 
     consider such problems as conflict of interest.'' Id. at 8.
       The above-described Senate Report does not reveal--either 
     expressly or implicitly--any congressional expectation that 
     exclusions would necessarily result as a consequence of the 
     Board's special rulemaking. Instead, the Report explains that 
     the concerns of several Members were principally addressed by 
     the incorporation of chapter 71 (rather than the NLRA) in the 
     bill and that, ``as an extra measure of precaution,'' the 
     Board should consider in a special rulemaking whether 
     application of even chapter 71 to employees in section 220(e) 
     would defeat Congress' responsibilities or cause insoluble 
     conflicts of interest (real or apparent). See 141 Cong. Rec. 
     S444-45 (remarks of Senator Grassley). Indeed, the section-
     by-section analysis of the bill that became the CAA states 
     that section 220(e) should not be construed as ``a standard 
     license to roam far afield from [the] executive 
     regulations.'' See 141 Cong. Rec. S626.
       The legislative materials suggest that section 220(e) 
     requires the Board to exclude employees in section 220(e)(2) 
     offices only where ``required'' by the statutory criteria--
     i.e., where exclusion is necessary to the accomplishment of 
     the statutory criteria. The legislative materials leave no 
     room for the exclusion of covered employees in the absence of 
     a demonstrated and substantial need for doing so.

2. Exclusion of all employees in section 220(e) offices is not required 
by Congress' constitutional responsibilities or concerns about real or 
                     apparent conflicts of interest

       On the basis of the comments received to date, the Board is 
     unable to find a demonstrated and substantial need for the 
     blanket exclusion of all employees in the section 220(e)(2) 
     offices. Such a blanket exclusion of all covered employees 
     does not appear to be required by either Congress' 
     constitutional responsibilities or any real or apparent 
     conflicts of interest.

     a. Exclusion is not necessitated by Congress' constitutional 
                            responsibilities

       The key premise of the commenter's argument that exclusion 
     of all section 220(e)(2) office employees is required by 
     Congress' constitutional responsibilities is the assertion 
     that collective bargaining rights for section 220(e) 
     employees are categorically inconsistent with the effective 
     functioning of the Legislative Branch. But the legislative 
     judgment embodied in chapter 71 is that collective bargaining 
     rights are entirely consistent with--and, indeed, enhance--
     the efficient and effective functioning of the Executive 
     Branch. See 5 U.S.C. Sec. 7101. More to the point, the 
     legislative judgment in chapter 71 is that collective 
     bargaining is consistent with--and, indeed, supportive of--
     the Executive Branch's fulfillment of the President's 
     constitutional responsibility faithfully to execute the laws 
     of the United States. The Board has not yet been presented 
     with any facts or legal argument that would support a 
     determination that, in contrast to the situation in the 
     Executive Branch, all employees of the section 220(e)(2) 
     offices must be excluded from collective bargaining in order 
     for the Legislative Branch to be able to fulfill its 
     constitutional charge.
       For example, although the commenter asserts that, if a 
     Senator is required to bargain with his or her employees' 
     union, the employees' union will obtain an undue advantage in 
     the legislative process by dint of its members' special 
     access to the Senator and its members' influence over the 
     Senator's legislative positions, the Board does not believe 
     that a Senator can be brought to his constitutional knees so 
     easily. The commitment of our Nation's elected 
     representatives to the performance of their constitutional 
     duties is great; and, access or no access by unions, it must 
     be presumed that out elected representatives will carry out 
     their constitutional responsibilities with fervor. Moreover, 
     it must also be recognized that, in doing so, our elected 
     representatives will be supported by many employees who 
     simply do not have the right to organize. Supervisors--
     defined as individuals with authority to hire, direct, 
     assign, promote, reward, transfer, furlough, layoff, recall, 
     suspend, discipline, or remove employees, or to adjust their 
     grievances, or to effectively recommend such action--are not 
     even covered by chapter 71 as applied by the CAA. See 
     sections 7103(a)(2)(iii) and 7103(a)(10). Likewise, 
     management officials--defined as individuals in positions 
     whose duties and responsibilities require or authorize the 
     individual to formulate, determine, or influence the policies 
     of their employer--are not covered. See sections 
     7103(a)(2)(iii) and 7103(a)(11). Furthermore, confidential 
     employees--defined as employees who act in a confidential 
     capacity with respect to individuals who formulate or 
     effectuate management policies in the field of labor-
     management relations--and employees engaged in personal work 
     are not covered. See sectons 7112(b)(2),(3) and 7103(a)(13). 
     Finally, employees whose participation in the management of a 
     labor organization or whose representation of a labor 
     organization results in a conflict or apparent conflict of 
     interest or is otherwise incompatible with law or with 
     official job duties are not covered. See section 7120(e). 
     Cumulatively, these exclusions undermine the claim that all 
     employees of a section 220(e)(2) office--including 
     secretaries and messengers--must be excluded from coverage in 
     order for the Legislative Branch to fulfill its 
     constitutional charge; to the extent that a union obtains 
     access, it will be on behalf of employees who are not at the 
     center of the Senator's management core.
       The commenter supporting blanket exclusion of all employees 
     in certain section 220(e)(2) office also argued that, absent 
     such an exclusion, a Senator's employees would be able to 
     influence a Senators' legislative position of exchange for 
     concessions at the bargaining table. This argument, however, 
     ignores the fact that, for those employees not exempted (such 
     as certain secretaries and messengers), chapter 71 provides 
     only a limited set of labor relations rights. Once organized, 
     employees may bargain about their conditions of employment. 
     But they may not bargain about matters ``specifically 
     provided for by Federal statute,'' a category which includes 
     inter alia a number of restrictions on pay, health insurance, 
     and retirement benefits for legislative employees. See 
     section 7102(2), 7103(a)(12), 7103(a)(14)(C). Moreover, they 
     may only bargain about their ``terms and conditions of 
     employment''; their Senator's legislative positions are not 
     properly on the table. And in the event that nonexempt 
     employees in section 220(e)(2) offices fail to come to terms 
     with an employing office about their terms and conditions of 
     employment, the employees do not have their principle 
     coercive weapons that organized labor uses to further its 
     employment goals, see Allis Chalmers v. NLRB, 388 U.S. 175 
     (1967), because they lack the right to strike or slow down. 
     See sections 7103(a)(2)(v), 7311. These limitations make it 
     clear that exclusion of all employees in a section 220(e)(2) 
     office (such as certain secretaries and messengers) is not 
     necessary to prevent the allegedly improper influence that 
     concerns the commenter; and they make self-evident that such 
     a blanket exclusion of all section 220(e)(2) office employees 
     is not required by Congress' constitutional responsibilities.
       The commenter supporting blanket exclusion of all employees 
     in section 220(e)(2) offices further argued that all members 
     of a Senator's staff--no matter how routine their job 
     duties--are privy to inside information about the Senator, 
     including information about the Senator's legislative 
     positions. The commenter expressed a concern that a Senator's 
     organized employees might reveal this confidential 
     information to their union and that a union might then use 
     the confidential information to exert improper influence on 
     the Senator and thus on the legislative process. The 
     commenter also feared that a Senator's organized employees 
     would not wholeheartedly perform their duties if the Senator 
     were to take a position inimical to the interests of unions. 
     But, again, these concerns are not sufficient to justify 
     blanket exclusions, if only because they can be addressed by 
     other means.
       The confidentiality of information and loyal performance of 
     duties can be ensured without exclusion of all section 
     220(e)(2) office employees. Nothing in federal law, and 
     certainly nothing in chapter 71 or the CAA, limits a Member's 
     right to establish neutral work rules designed to assure 
     productivity, discipline, and confidentiality and to 
     discipline and/or discharge any employee who violates those 
     rules. An employee who violates one of these work rules may 
     be discharged for that reason.
       This point answers the commenter's argument that 
     categorical exclusion is necessary because a Senator would 
     not be able to discharge or discipline an employee who leaks 
     confidential information, or one who openly and actively 
     supports legislation that the Senator opposes. If the Senator 
     had in place and enforced a work rule neutrally forbidding 
     conduct without regard to the employee's union membership or 
     activity (so long as the employee's constitutional rights 
     were not violated). The Senator would only violate section 
     220 of the CAA if he or she simply forbid inconsistent 
     conduct that related to union membership or activities or 
     enforced a facially neutral rule in a discriminatory manner. 
     Exclusion of all covered employees is thus not ``required'' 
     to address the confidentiality and loyalty concerns that 
     have been advanced here.

   b. Exclusion of all employees in section 220(e)(2) offices is not 
       ``required'' by any real or apparent conflicts of interest

       Nor is the Board prepared at this point to accept the 
     argument that blanket exclusion of all employees in section 
     220(e)(2) offices is ``required'' to avoid conflicts of 
     interest, real or apparent. The exclusions in chapter 71 for 
     supervisory, confidential and other such employees are 
     sufficient to take care of most potential conflict of 
     interest questions created by employee organization; indeed, 
     chapter 71 itself allows exclusion of employees

[[Page H5567]]

     with additional insoluble conflicts of interest. While the 
     Board is prepared to exclude appropriate categories of 
     employees where required by conflicts of interest, the 
     suggestion that all employees in section 220(e)(2) offices 
     must be excluded because of such alleged conflicts does not 
     appear well-founded.
       The commenter expressed a fear that organized employees 
     would necessarily have a loyalty to the union and to union 
     goals that would be inconsistent with loyal service to a 
     Member and to his or her legislative positions. There may 
     indeed be such tensions and potential conflicts that arise 
     from union membership of covered employees. But such tensions 
     and conflicts also arise in connection with a covered 
     employee's membership and participation in other special 
     interest groups, such as the Sierra Club, the National Rifle 
     Association, the National Right to Work Foundation, or the 
     National Organization of Women. Indeed, an employee's outside 
     associations--whatever they may be--all give rise to a 
     possible tension between the employee's interests and 
     loyalties (as expressed by outside associations) and the 
     Member's legislative positions. Nonetheless, Congress has not 
     imposed a blanket prohibition on employee membership and 
     participation in outside associations; and, under chapter 71, 
     the tensions and potential conflicts that arise in connection 
     with union membership have not been enough to justify a 
     blanket exclusion of all employees from organization in the 
     Executive Branch. While the Board is prepared to consider 
     whether such associations might preclude organization rights 
     for particular employees in particularly sensitive positions, 
     it cannot accept the suggestion that the possible tensions 
     between employee interests and loyalties and Member positions 
     ``requires'' the blanket exclusion of all employees in 
     section 220(e)(2) offices; there are surely less restrictive 
     means for mitigating these potential conflicts for many, if 
     not all, of the employees of section 220(e)(2) offices.
       The commenter also asserted that exclusion of all employees 
     is required by an apparent conflict of interest for Members 
     voting on legislation that affects unions: according to the 
     commenter, if the Members support the legislation, they may 
     be perceived as caving to union pressure; if they oppose it, 
     they may be perceived as attempting to enhance their 
     bargaining positions with the union; in either instance, they 
     would not be perceived as serving their constituents. But 
     this situation does not appear to differ from that faced by 
     the President when he or Executive Branch officials acting on 
     his behalf take a position on pending labor legislation. That 
     apparent conflict is inherent to employee organization in the 
     public sector; and yet chapter 71 reflects a judgment that 
     this apparent conflict does not require the categorical 
     exclusion of all employees from collective organization. The 
     judgment in chapter 71, which Congress incorporated by 
     reference in the CAA, prevents the Board from accepting any 
     argument that this apparent conflict requires exclusion of 
     all employees in a section 220(e)(2) office.
       Indeed, with respect to both alleged conflicts of interest, 
     the Board finds it significant that, in chapter 71's 
     statement of congressional findings and purpose, Congress 
     expressly found that ``labor organizations and collective 
     bargaining in the civil service are in the public interest'' 
     because they ``safeguard[ ] the public interest,'' 
     ``contribute[ ] to the effective conduct of public 
     business,'' and ``facilitate[ ] and encourage[ ] the amicable 
     settlements of disputes between employees and their employers 
     involving conditions of employment. See Section 7101. Section 
     220(e)(1) of the CAA instructs the Board to hew as closely as 
     possible to ``the provisions and purposes of chapter 71.'' In 
     doing so, the Board has no choice but to reject the 
     proposition that all employees in a section 220(e)(2) office 
     must be excluded from coverage because of a real or apparent 
     conflict that their organization would create for their 
     Member of Congress. The premise of chapter 71, and thus the 
     CAA, is that employees in unions may loyally serve government 
     employees and that the public will not view government acts 
     in response to union demands as illegitimate responses to 
     union pressure.

           3. Proposed regulations under section 220(e)(1)(B)

       For these reasons, the Board does not propose to issue 
     regulations that grant blanket exclusion of all employees in 
     any of the section 220(e)(2) offices. In the Board's 
     judgment, the issuance of blanket exclusions from the 
     application of section 220 for all employees in section 
     220(e)(2) offices would represent a significant departure 
     from the overall purposes and policies of the CAA. The Board 
     would promptly take that step if it were necessary because of 
     a conflict of interest (real or apparent) or Congress' 
     constitutional responsibilities. But no necessity has been 
     shown or yet been found for the exclusion of all employees in 
     section 220(e)(2) offices.
       The Board further notes that no commenter took the position 
     that there were job duties of employees within section 
     220(e)(2) offices that required application of section 
     220(e)(1)(B)'s exception to coverage; a fortiori, no comments 
     provided the Board with any facts or legal argument in 
     support of the issuance of regulations providing that 
     employees in section 220(e)(2) offices who perform certain 
     job duties are not covered by section 220. For this reason, 
     the Board does not propose to issue any such regulations at 
     this time. Of course, the Board stands ready to use its 
     rulemaking authority to propose and issue such regulations 
     when and if the Board is presented with facts and legal 
     argument demonstrating that the application of section 
     220(e)(1)(B) to employees performing particular job duties in 
     ``required.'' The Board again urges commenters to provide the 
     Board with such information and authorities.
       The commenter supporting blanket exclusion of all employees 
     in section 220(e)(2) offices argued that, pursuant to its 
     power under section 220(e)(2)(H), the Board should propose 
     regulations (i) adding the Executive Office of the Secretary 
     of the Senate, the Office of Senate Security, the Senate 
     Disbursing Office, and the Administrative Office of the 
     Sergeant at Arms to the statutory list of section 220(e)(2) 
     offices, and (ii) granting a blanket exclusion of all covered 
     employees in these offices. By its analysis above, the Board 
     has effectively rejected the argument that any offices, 
     including these four, are entitled to blanket exclusion of 
     all of their employees from application of section 220. The 
     Board agrees, however, with the commenter's assertion that 
     employees in these offices perform functions ``comparable'' 
     to those performed by employees in the other section 
     220(e)(2) offices, and thus the Board proposes, pursuant to 
     section 220(e)(2)(H), to treat these offices as section 
     220(e)(2) offices for all purposes, including the 
     determination of the effective date of sections 220(a) and 
     (b). For all other offices--that is, all offices that are not 
     either listed in section 220(e)(2) or defined as section 
     220(e)(2) offices here--the effective date of sections 
     220(a) and (b) is October 1, 1996.
       No commenter took the position that the Board should adopt 
     a regulation authorizing parties and/or employees in 
     appropriate proceedings to assert, and the Board to decide, 
     where appropriate and relevant, that a covered employee 
     employed in a section 220(e)(2) office is required to be 
     excluded from coverage under section 220(e) because of a 
     conflict of interest (real or apparent) or because of 
     Congress' constitutional responsibilities. The Board, 
     however, proposes to issue such a regulation. By doing so, 
     the Board intends to ensure that an exclusion may be provided 
     where the law and the facts require it. The proposed 
     regulation of the Board allows the issue of exclusions under 
     section 220(e)(1)(B) to be raised and decided on a case-by-
     case basis.
     IV. Method of Approval
       The Board recommends that (1) the version of the proposed 
     regulations that shall apply to the Senate and employees of 
     the Senate be approved by the Senate by resolution; (2) the 
     version of the proposed regulations that shall apply to the 
     House of Representatives and employees of the House of 
     Representatives be approved by the House of Representatives 
     by resolutions; and (3) the version of the proposed 
     regulations that shall apply to other covered employees and 
     employing offices be approved by the Congress by concurrent 
     resolution.
       Signed at Washington, D.C. on this 22 day of May, 1996.

                                                Glen D. Nager,

                                               Chair of the Board,
                                             Office of Compliance.

     Sec. 2472. Specific regulations regarding certain offices of 
                   Congress

     Sec. 2472.1. Purpose and Scope

       The regulations contained in this section implement the 
     provisions of chapter 71 as applied by section 220 of the CAA 
     to covered employees in the following employing offices:
       (A) the personal office of any Member of the House 
     Representatives or of any Senator;
       (B) a standing select, special, permanent, temporary, or 
     other committee of the Senate or House of Representatives, or 
     a joint committee of Congress;
       (C) the Office of the Vice President of the Senate), the 
     Office of the President pro tempore of the Senate, the Office 
     of the Majority Leader of the Senate, the Office of the 
     Minority Leader of the Senate, the Office of the Majority 
     Whip of the Senate, the Conference of the Majority of the 
     Senate, the Conference of the Minority of the Senate, the 
     Office of the Secretary of the Conference for the Majority of 
     the Senate, the Office of the Secretary for the Minority of 
     the Senate, the Majority Policy Committee of the Senate, the 
     Minority Policy Committee of the Senate, and the following 
     offices within the Office of the Secretary of the Senate: 
     Offices of the Parliamentarian, Bill Clerk, legislative 
     Clerk, Journal Clerk, Executive Clerk, Enrolling Clerk, 
     Official Reporters of Debate, Daily Digest, Printing 
     Services, Captioning Services, and Senate Chief Counsel for 
     Employment.
       (D) the Office of the Speaker of the House of 
     Representatives, the Office of the Majority Leader of the 
     House of Representatives, the Office of the Minority Leader 
     of the House of Representatives, the Offices of the Chief 
     Deputy Majority Whips, the Offices of the Chief Deputy 
     Minority Whips, and the following offices within the Office 
     of the Clerk of the House of Representatives: Offices of 
     Legislative Operations, Official Reporters of Debate, 
     Official Reports to Committees, Printing Services, and 
     Legislative Information;
       (E) the Office of the Legislative Counsel of the Senate, 
     the Office of the Senate Legal Counsel, the Office of the 
     Legislative Counsel of the House Representatives, the Office 
     of the General Counsel of the House of Representatives, the 
     Office of the Parliamentarian of the House of 
     Representatives, and the Office of the Law Revision Counsel;

[[Page H5568]]

       (F) the offices of any caucus or party organization;
       (G) the Congressional Budget Office, the Office of 
     Technology Assessment, and the Office of Compliance; and;
       (H) the Executive Office of the Secretary of the Senate, 
     the Office of Senate Security, the Senate Disbursing Office 
     and the Administrative Office of the Sergeant at Arms.

     Sec. 247.2. Application of Chapter 71

       (a) The requirements and exemptions of chapter 71 of title 
     5, United States Code, as made applicable by section 220 of 
     the CAA, shall apply to covered employees who are employed in 
     the offices listed in section 2472.1 in the same manner and 
     to the same extent as those requirements and exemptions are 
     applied to other covered employees.
       (b) The regulations of the Office, as set forth at sections 
     2420-29 and 2470-71, shall apply to the employing offices 
     listed in section 2472.1, covered employees who are employed 
     in those offices and representatives of those employees.

     Sec. 2472.3. Exclusion from coverage

       Notwithstading any other provision of these regulations, 
     any covered employee who is employed in an office listed in 
     section 2472.1 shall be excluded from coverage under section 
     220 if it is determined in an appropriate proceeding that 
     such exclusion is required because of (a) a conflict of 
     interest or appearance of a conflict of interest, or (b) 
     Congress' constitutional responsibilities.

                          ____________________