[Congressional Record Volume 142, Number 74 (Thursday, May 23, 1996)]
[Senate]
[Pages S5551-S5556]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S./GERMAN OPEN SKIES AGREEMENT
Mr. PRESSLER. Mr. President, a truly historic moment occurred in
Milwaukee today when the United States and the Federal Republic of
Germany formally signed an open skies agreement which will liberalize
air service between our two countries. To underscore the importance of
this agreement, I was pleased both President Clinton and Chancellor
Kohl were on hand to sign it.
As I have said before, the U.S./German open skies agreement is a
great economic victory for both countries and a very welcome
development for consumers. Under the agreement, airlines of both
countries will be free to operate to any points in either country, as
well as third countries, without limitation. It also liberalizes
pricing, charter services and further liberalizes the open skies cargo
regime already in place. In short, it allows market demand, not the
heavy hands of governments, to decide air service between the United
States and Germany.
In addition to direct benefits, I have long said such an agreement
would serve as a catalyst for liberalizing air service markets
throughout Europe. Recent news reports indicate the competitive impact
of the U.S./German open skies agreement is already being felt. For
instance, since last October the British government, which is highly
protective of the restrictive U.S./U.K. bilateral aviation agreement,
expressed no willingness to seek to improve air service opportunities
between the United States and the United Kingdom. This week, however,
British negotiators came to Washington whistling a very different tune.
The competitive impact of the U.S./German open skies agreement also
is being felt in U.S./France aviation relations. Since the French
renounced our bilateral aviation agreement in 1992, the French
government had shown no interest in negotiating a new air service
agreement with the United States. Like the British, the French too are
whistling a different tune as a result of the U.S./German open skies
agreement.
I welcome reports the Government of France finally has expressed an
interest in discussing a liberal bilateral aviation agreement. No doubt
this abrupt change in course is due to the competitive reality that
France is now virtually surrounded by countries enjoying open skies
agreements with the United States. Like a huge magnet, these countries
with open skies regimes are drawing passenger traffic away from French
airports.
For instance, last year combined traffic at the two major Paris
airports, Orly and Charles de Gaulle, fell nearly 1 percent. What makes
this statistic remarkable is elsewhere in Europe--particularly in
countries with open skies relations with the United States--passenger
traffic growth has been robust at major airports. For instance,
passenger traffic rose 8.7 percent at Frankfurt Main Airport, 7.6
percent at Amsterdam Schiphol Airport, and 11 percent at Brussels
Zaventem Airport.
Clearly, the French realize the U.S./German open skies agreement is
only going to make the problem of passenger traffic diversion much
worse. As I have said repeatedly, competition will be our best ally in
opening the remaining restrictive air service markets in Europe. At
great cost to its economy, the French are learning this lesson
firsthand.
Mr. President, I commend to my colleagues an article describing the
competitive impact of the U.S./German open skies agreement which
appeared today in the Aviation Daily. I ask unanimous consent that a
copy of that article be printed in the Record at the conclusion of my
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PRESSLER. Let me conclude by saying the U.S./German open skies
agreement is unquestionably our most important liberalized air service
agreement to date. I again praise the bold and steadfast leadership of
Secretary of Transportation Federico Pena and German Transport Minister
Matthias Wissmann in securing this agreement. Both the United States
and Germany will benefit greatly from their leadership which turned an
excellent opportunity into a truly historic trade agreement between our
two countries.
Exhibit 1
[From Aviation Daily, May 23, 1996]
New Carrier Alliances Fuel Hopes For U.S.-U.K., Europe Open Skies
The emergence of powerful, antitrust-immunized alliances
and increasingly open aviation regimes in fueling
expectations of breakthroughs in U.S.-U.K. and U.S.-European
Union relations. In a Senate floor speech Tuesday, Commerce
Committee Chairman Larry Pressler (R-S.D.) said ``a truly
historic opportunity may be at hand to finally force the
British to join us on the field of free and fair air service
competition.'' The chief catalyst for this opportunity is the
potential alliance between American and British Airways. With
published reports saying BA and American are close to
announcing ``a major business alliance,'' British officials
``came to Washington [Monday] to assess the price tag for the
regulatory relief the new alliance would require,'' said
Pressler. ``I am pleased initial reports indicate [DOT]
reaffirmed its longstanding position: Nothing short of full
liberalization of the U.S./U.K. air service market would be
acceptable,'' he said. ``If the administration stands firm,
as I believe it must, the current restrictive U.S.-U.K.
bilateral aviation agreement will be cast into the great
trash heap of protectionist trade policy, where it belongs.''
Pressler traced the potential for a U.K. breakthrough to
the U.S.-Germany open skies agreement, struck early this
year. ``Simply put, the possible British Airways/American
Airlines alliance is a competitive response to the U.S./
Germany open skies agreement and the grant of antitrust
immunity to the United Airlines/Lufthansa alliance,'' he
said. Pressler was active in developing the U.S.-Germany
pact, a point underscored on the Senate floor by Sen. Trent
Lott (R-Miss.), who said Pressler's ``steadfast leadership
was instrumental in securing'' the open skies agreement. Lott
made public letters from DOT Secretary Federico Pena, who
praised Pressler's ``bipartisan leadership role'' on the
issue, and German Transport Minister Matthias Wissmann, who
called Pressler ``a cornerstone in this development.''
In his speech, Pressler said, ``If the Delta alliance with
three smaller European carriers is granted a final antitrust
immunity order later this month, that alliance--in
combination with the United and Northwest alliances--will
mean nearly 50% of the passenger traffic between the United
States and Europe will be carried on fully integrated
alliances.'' This will leave BA ``with no choice but to
respond. It now appears to be doing so by seeking to ally
itself with the strongest U.S. carrier available and
ultimately, to seek antitrust [immunity] for its new
alliance.'' The price tag for the regulatory relief for such
an alliance ``must be nothing less than immediate open
skies,'' said Pressler.
Industry observers are looking toward next week's European
Transport Ministers Conference and a meeting of the European
Union Council of Ministers in mid-June for possible progress
in EU-U.S. aviation relations. Delta Chairman, President and
Chief Executive Ronald Allen urged the EU to move ``boldly
and swiftly'' toward an open skies relationship with the U.S.
as ``the next necessary step forward for world aviation. It
is important that we take the step soon.'' In a speech
yesterday before the European Aviation Club in Brussels,
Allen praised EU Transport Commissioner Neil Kinnock's
proposal that the European Commission be given a mandate to
negotiate EU-wide open skies with the U.S. ``He is trying to
open the door to meaningful transatlantic competition and
integration,'' Allen said. Some observers believe Kinnock
will gain at least limited authority at the Council of
Ministers Meeting.
Allen said Delta backed a number of proposals that may help
the talks, including an increase in permissible foreign
ownership of U.S. carriers from 25% to 49%. He said the
carrier will work for changes in U.S. bankruptcy laws that
allow airlines to continue operating while avoiding financial
responsibilities, but the EU must also change its policy
allowing state subsidies for troubled carriers. ``Both these
assistance measures distort marketplace competition and
penalize carriers that have made the difficult choices
necessary to make their companies competitive and financially
sound,'' said Allen. He added that the EU also must resist
moves to hamper competition through ``safety net''
regulations.
[[Page S5552]]
NOTICE OF PROPOSED RULEMAKING
Mr. THURMOND. Mr. President, pursuant to Section 304(b) of the
Congressional Accountability Act of 1995 (2 U.S.C. sec. 1384(b)), a
Notice of Proposed Rulemaking was submitted by the Office of
Compliance, U.S. Congress. The notice relates to Federal Service Labor-
Management Relations (Regulations under section 220(e) of the
Congressional Accountability Act.)
Section 304(b) requires this notice to be printed in the
Congressional Record, therefore I ask unanimous consent that the notice
be printed in the Record.
There being no objection, the notice was ordered to be printed in the
Record, as follows:
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 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
pursuant 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
[[Page S5553]]
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 practicable'' 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.
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 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 FLRAs 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
[[Page S5554]]
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' 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 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
standardless license to roam far afield from [the] executive
regulations.'' See 141 Cong. Rec. S626.
These 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 our 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) & 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) &
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 personnel work are not covered. See sections
7112(b)(2),(3) & 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 for all
employees in certain section 220(e)(2) offices also argued
that, absent such an exclusion, a Senator's employees would
be able to influence a Senator's legislative position in
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 sections 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 the 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 additional
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.
[[Page S5555]]
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
such conduct, then he or she could discipline or discharge an
employee who engaged in the forbidden 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 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
employers 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
commenter 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 is
``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 resolution; and (3) the version of the proposed
regulations that shall apply to
[[Page S5556]]
other covered employees and employing offices be approved by
the Congress by concurrent resolution.
Signed at Washington, D.C., on this 22nd 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 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) 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. 2472.2 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
Notwithstanding 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.
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