[Congressional Record Volume 142, Number 119 (Wednesday, September 4, 1996)]
[House]
[Pages H10019-H10030]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOTICE OF PROPOSED RULEMAKING


                                         Office of Compliance,

                                  Washington, DC, August 19, 1996.
     Hon. Newt Gingrich,
     Speaker of the House, 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 adoption of regulations, 
     together with a copy of the regulations for publication in 
     the Congressional Record. The adopted regulations are being 
     issued pursuant to Section 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 adoption of regulations and submission for approval

       Summary: The Board of Directors of the Office of 
     Compliance, after considering comments to both the Advance 
     Notice of Proposed Rulemaking published on March 16, 1996 in 
     the Congressional Record and the Notice of Proposed 
     Rulemaking published on May 23, 1996 in the Congressional 
     Record, has adopted, and is submitting for approval by 
     Congress, final regulations implementing section 220(e) of 
     the Congressional Accountability Act of 1995, Pub. L. 104-1, 
     109 Stat. 3.
       For Further Information Contact: Executive Director, Office 
     of Compliance, 110 2nd Street, S.E., Room LA 200, John Adams 
     Building, Washington, D.C. 20540-1999, (202) 724-9250.
       Supplementary Information:
     I. Statutory Background
       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.
       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 the 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 adopted final regulations under section 220(d), and 
     submitted them to Congress for approval on July 9, 1996.
       Section 220(e)(1) of the CAA requires that the Board 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 Office of the Minority 
     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 of the Majority of 
     the Senate, the Office of the Secretary of the Conference of 
     the Minority of the Senate, the Office of the Secretary 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

[[Page H10020]]

     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)(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 this section.''
       Second, section 220(e)(1)(B) directs 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. Advance Notice of Proposed Rulemaking
       In an Advance Notice of Proposed Rulemaking (``ANPR'') 
     published on March 16, 1996, the Board provided interested 
     parties and persons with the opportunity to submit comments, 
     with supporting data, authorities and argument, concerning 
     the content of and bases for any proposed regulations under 
     section 220. Additionally, the Board sought comment on two 
     specific 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? and (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 also 
     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? (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? 
     and (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 
     these issues, the Board emphasized the need for 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).
       The Board received two comments in response to the ANPR. 
     These comments addressed only the issue of whether the Board 
     should grant a blanket exclusion for all covered employees in 
     certain section 220(e)(2) offices. Neither commenter 
     addressed issues arising under section 220(e)(1)(A) or any 
     other issues arising under 220(e)(1)(B).
     III. The Notice of Proposed Rulemaking
       On May 23, 1996, the Board published a Notice of Proposed 
     Rulemaking (``NPR'') (142 Cong. R. S5552-56, H5563-68 (daily 
     ed., May 23, 1996)) in the Congressional Record. Pursuant to 
     section 304(b)(1) of the CAA, the NPR set forth the 
     recommendations of the Executive Director and the Deputy 
     Executive Directors for the House and the Senate.
       A. Section 220(e)(1)(A)
       In its proposed regulations, the Board noted that, under 
     section 220(e)(1)(A), the Board is authorized to modify the 
     FLRA's regulations only ``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)].'' The Board further noted 
     that no commenter had taken the position that there was good 
     cause to modify the FLRA's regulations for more effective 
     implementation of section 220(e). Nor did the Board 
     independently find any basis to exercise its authority to 
     modify the FLRA regulations for more effective implementation 
     of section 220(e). Thus, the Board proposed that, except as 
     to employees whose exclusion from coverage was found to be 
     required under section 220(e), the regulations adopted under 
     section 220(d) would apply to employing offices, covered 
     employees, and their representatives under section 220(e).
       B. Section 220(e)(1)(B)
       With regard to section 220(e)(1)(B), the Board concluded 
     that the requested blanket exclusion of all of the employees 
     in certain section 220(e)(2) offices was not required under 
     the stated statutory criteria. However, the Board did propose 
     a regulation that would have allowed the exclusion issue to 
     be raised with respect to any particular employee in any 
     particular case. In addition, the Board again urged 
     commenters who supported any categorical exclusions, in 
     commenting on the proposed regulations, to explain why 
     particular jobs or job duties require exclusion of particular 
     employees so that the Board could exclude them by regulation, 
     where appropriate.
       C. Section 220(e)(2)(H)
       Finally, in response to a commenter's assertion and 
     supporting information, the Board found that employees in 
     four offices identified by the commenter performed functions 
     ``comparable'' to those performed by employees in the other 
     section 220(e)(2) offices. Accordingly, the Board proposed, 
     pursuant to section 220(e)(2)(H), to identify those offices 
     in its regulations as section 220(e)(2) offices.
     IV. Analysis of Comments and Final Regulations
       The Board received six comments on the NPR, five from 
     congressional offices and one from a labor organization. Five 
     commenters objected to the proposed regulations because all 
     covered employees in the section 220(e)(2) offices were not 
     excluded from coverage. These commenters further suggested 
     that the Board has good cause, pursuant to section 
     220(e)(1)(A), to modify the FLRA's regulations by 
     promulgating certain additional regulations. One of the 
     commenters stated its approval of the proposed regulations.
       The Board has carefully reexamined the statutory 
     requirements embodied in 220(e), and evaluated the comments 
     received, as well as the recommendations of the Office's 
     statutory appointees. Additionally, the Board has looked to 
     ``the principles and procedures'' set forth in the 
     Administrative Procedure Act, 5 U.S.C. Sec. 553 (``APA''), 
     which sections 220(e) and 304 of the CAA require the Board to 
     follow in its rulemakings. See 2 U.S.C. Sec. 1384(b). 
     Finally, the Board has carefully considered the 
     constitutional provisions and historical practices that make 
     Congress a distinct institution in American government.
       Based on its analysis of the foregoing, on the present 
     rulemaking record, the Board has determined that:
       Under the terms of the CAA, the requirements and exemptions 
     of chapter 71 shall apply to covered employees who are 
     employed in section 220(e)(2) offices in the same manner and 
     to the same extent as those requirements and exemptions are 
     applied to covered employees in all other employing offices;
       No additional exclusions from coverage of any covered 
     employees of section 220(e) offices because of (i) a conflict 
     of interest or appearance of conflict of interest or (ii) 
     Congress' constitutional responsibilities are required; and
       In accord with section 220(e)(2)(H) of the CAA, eight 
     additional offices beyond those identified in the Board's NPR 
     perform ``comparable functions'' to those offices identified 
     in section 220(e)(2).
       The Board is adopting final regulations that effectuate 
     these conclusions. The Board's reasoning for its 
     determinations, together with its analysis of the comments 
     received, is as follows:
       A. Section 220(e)(1)(A) Modifications
       Section 220(e)(1) provides that the Board ``shall issue 
     regulations pursuant to section 304 on the manner and extent 
     to which the requirements and exemptions of chapter 71 should 
     apply to covered employees'' in section 220(e)(2) offices. In 
     response to the Board's ANPR, no commenter suggested that the 
     Board's regulations should apply differently to section 
     220(e)(2) employees and employing offices than to other 
     covered employees and employing offices. Several commenters 
     have now suggested that the regulations should be modified in 
     various respects for section 220(e)(2) employees who are not 
     excluded pursuant to section 220(e)(1)(B). The Board, 
     however, is not persuaded by any of these suggestions.
       First, contrary to one suggestion, the Board is neither 
     required nor permitted ``to issue regulations specifying in 
     greater detail the application of [Chapter 71] to the 
     specific offices listed in section 220(e)(2).'' Section

[[Page H10021]]

     220(e)(1) provides that the Board's ``regulations shall, to 
     the greatest extent practicable, be consistent with the 
     provisions and purposes of chapter 71 and of this Act.'' 
     Section 220(e)(1) further specifically states that the 
     Board's ``regulations shall be the same as subjective 
     regulations issued by the Federal Labor Relations Authority 
     under'' chapter 71. (Emphasis added.) While section 
     220(e)(1)(B) makes an ``except[ion]'' to these statutory 
     restrictions ``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,'' this exception neither 
     authorizes nor compels the requested regulations.
       As the Board has explained in other rulemakings, it is not 
     possible to clarify by regulation the application of the 
     pertinent statutory provisions and/or the pertinent executive 
     branch agency's regulations (here, the FLRA's regulations) 
     while at the same time complying with the statutory 
     requirement that the Board's regulations be ``the same as 
     substantive regulations'' of the pertinent executive branch 
     agency. Moreover, modification of substantive law is legally 
     distinct from clarification of it. In this context, to 
     conclude otherwise would improperly defeat the CAA's 
     intention that, except where strictly necessary, employing 
     offices in the legislative branch should live with and under 
     the same regulatory regime--with all of its attendant 
     burdens and uncertainties--that private employers and/or 
     executive branch agency employers live with and under. 
     Much as the Chairman of the House Committee on Economic 
     and Educational Opportunities stated at the time of 
     passage of the CAA: ``The Congress should not be allowed 
     to escape the problems created by its own failure to draft 
     laws properly and, perhaps, through this approach [it] 
     will be forced to revisit and clarify existing laws which, 
     because of a lack of clarity, are creating confusion and 
     litigation.'' 141 Cong. Rec. H264 (Jan. 17, 1995) (remarks 
     of Rep. Goodling).
       Indeed, in the Board's judgment, adding new regulatory 
     language of the type requested here (e.g., references to job 
     titles) would be contrary to the effective implementation of 
     the rights and protections of the CAA. Such new regulatory 
     language would itself have to be interpreted, would not be 
     the subject of prior interpretations by the FLRA, and would 
     needlessly create new ground for litigation about additional 
     interpretive differences.
       Second, the Board cannot accede to the request that it 
     issue regulations providing that all employees of personal, 
     committee, Leadership, General Counsel, and Employment 
     Counsel offices are ``confidential employees'' within the 
     meaning of 5 U.S.C. Sec. 7103(13). As noted above, to the 
     extent that this commenter seeks a declaratory statement that 
     clarifies the appropriate application of 5 U.S.C. 
     Sec. 7103(13), the Board is not legally free to provide such 
     clarifications through its statutorily limited rulemaking 
     powers. Moreover, contrary to the proposal of a commenter, 
     the Supreme Court has approved, and the NLRB and the FLRA 
     have applied, a definition of ``confidential employee'' that 
     is narrowly framed and that applies only to employees who, in 
     the normal course of their specific job duties, properly and 
     necessarily obtain in advance or have regular access to 
     confidential information about management's positions 
     concerning pending contract negotiations, the disposition of 
     grievances, and other labor relations matters. See NLRB v. 
     Hendricks County, et al., 454 U.S. 170, 184 (1981); In re 
     Dept. of Labor, Office of the Solicitor, Arlington Field 
     Office and AFGE Local 12, 37 F.L.R.A. 1371, 1381-1383 (1990). 
     In fact, in both the private and public sectors, it has been 
     held that ``bargaining unit eligibility determinations [must 
     be based] on testimony as to an employee's actual duties at 
     the time of the hearing rather than on duties that may exist 
     in the future;'' ``[b]argaining unit eligibility 
     determinations are not based on evidence such as written 
     position descriptions or testimony as to what duties had been 
     or would be performed by an employee occupying a certain 
     position, because such evidence might not reflect the 
     employee's actual duties.'' Id. at 1377 (emphasis added). 
     Since these rulings have not been addressed or distinguished 
     by the commenter, the Board must conclude that the requisite 
     ``good cause'' to modify the FLRA's regulations has not been 
     established.
       Third, the Board similarly must decline the request that it 
     promulgate regulations: (a) excluding from bargaining units 
     all employees of the Office of Compliance as employees 
     ``engaged in administering the provisions of this chapter,'' 
     within the meaning of 5 U.S.C. Sec. 7112(b)(4); and (b) 
     excluding from bargaining units all employees of the Office 
     of Inspector General as employees ``primarily engaged in 
     investigation or audit functions relating to the work of 
     individuals employed by an agency whose duties directly 
     affect the internal security of the agency,'' within the 
     meaning of 5 U.S.C. Sec. 7112(b)(7). To the extent that these 
     requests seek clarification concerning the application of 
     existing statutory provisions, the Board is foreclosed by 
     statute from providing such regulatory clarifications 
     (especially for the Office of Inspector General, which does 
     not appear to be a section 220(e)(2) office and which, in 
     contrast to inspector general offices in the executive 
     branch, appears primarily to audit or investigate employees 
     of other employing offices, as opposed to auditing employees 
     of its own agency). Moreover, to the extent that these 
     requests seek to have the Board make eligibility 
     determinations in advance of a specific unit determination 
     and without a developed factual record, the commenters again 
     seek a modification in the substantive law for which no 
     ``good cause'' justification has been established.
       Fourth, the Board similarly must decline the suggestion 
     that it promulgate regulations: (a) limiting representation 
     of employees of section 220(e)(2) offices to unions 
     unaffiliated with noncongressional unions; (b) clarifying 
     that a Member's legislative positions are not properly the 
     subject of collective bargaining; (c) clarifying the ability 
     of a Member to discharge or discipline an employee for 
     disclosing confidential information or for taking legislative 
     positions inconsistent with the Member's positions; and (d) 
     authorizing section 220(e)(2) offices to forbid their 
     employees from acting as representatives of the views of 
     unions before Congress or from engaging in any other lobbying 
     activity on behalf of unions. The issues raised by the 
     suggested regulations are of significant public interest. 
     But, to the extent that the suggested regulations are 
     requested merely to clarify the application of existing 
     statutory or regulatory provisions, the Board may not 
     properly use its limited rulemaking authority to promulgate 
     such regulatory clarifications. Moreover, there is not ``good 
     cause'' to so ``modify'' the FLRA's regulations, as section 
     220(e) does not itself provide the Board with authority to 
     modify statutory requirements such as those found in 5 U.S.C. 
     Sec. 7112(c) (specifying limitations on whom a labor 
     organization may represent), 5 U.S.C. Sec. Sec. 7103(A)(12), 
     7106, 7117 (specifying subjects that are not negotiable), 5 
     U.S.C. Sec. 7116(a) (specifying prohibited employment 
     actions), and 5 U.S.C. Sec. 7102 (specifying scope of 
     protected employee rights).
       Finally, for similar reasons, the Board must reject the 
     request that it place regulatory limitations and prohibitions 
     on the proper uses of union dues. Again, the Board cannot 
     properly use its statutorily-limited regulatory powers either 
     to clarify what commenters find ambiguous or to codify what 
     commenters find unambiguous. Moreover, nothing in chapter 71 
     (or the CAA) authorizes a labor organization and an employing 
     office to establish a closed shop, union shop, or even an 
     agency shop; accordingly, under chapter 71 (and the CAA), 
     employees cannot be compelled by their employers to join 
     unions against their free will and, concomitantly, employees 
     can resign from union membership and cease paying dues at any 
     time without risk to the security of their employment. In 
     these circumstances, there is no evident basis--legal or 
     factual--for the Board to seek to regulate the proper uses of 
     voluntarily-paid union dues.
       In sum, the proposed modifications of the FLRA's 
     regulations are not a proper exercise of the Board's section 
     220(e) and section 304 rulemaking powers. Accordingly, the 
     Board may not adopt them.
       B. Section 220(e)(1)(B) Exclusions
       Section 220(e)(1)(B) provides that, in devising its 
     regulations, 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.'' Accordingly, the Board has, with the 
     assistance of the Office's Executive Director and two 
     Deputy Executive Directors, carefully examined the 
     comments received, other publicly available materials 
     about the workforces of the section 220(e)(2) offices, and 
     the likely constitutional, ethical, and labor law issues 
     that could arise from application of chapter 71 to these 
     workforces. The Board has also carefully examined the 
     adequacy of the requirements and exemptions of chapter 71 
     and section 220(d) of the CAA for: (a) addressing any 
     actual or reasonably perceived conflicts of interests that 
     may arise in the context of collective organization of 
     employees of section 220(e)(2) offices; and (b) 
     accommodating Congress' constitutional responsibilities. 
     Having done so, on the present rulemaking record the Board 
     concludes that additional exclusions from coverage beyond 
     those contained in chapter 71 and section 220(d) are not 
     required by either Congress' constitutional 
     responsibilities or a real or apparent conflict of 
     interest; and the Board now further concludes that an 
     additional regulation specially authorizing consideration 
     of these issues in any particular case is unnecessary in 
     light of the authority available to the Board under 
     chapter 71's implementing provisions and precedents and 
     the Board's regulations under section 220(d).

  1. Additional exclusions from coverage are justified under section 
     220(e)(1)(B) only where necessary to the conduct of Congress' 
   constitutional responsibilities or to the resolution of a real or 
                     apparent conflict of interest

       In the preamble to its NPR, the Board expressed its view 
     that additional exclusions of employees from coverage are 
     justified under section 220(e)(1)(B) only where necessary to 
     the conduct of Congress' constitutional responsibilities or 
     to the resolution of a real or apparent conflict of interest. 
     Although several commenters have objected to the Board's 
     construction of the statute, the Board is not persuaded by 
     these objections.
       First, the Board finds no basis for the suggestion that 
     ``the Board has been instructed

[[Page H10022]]

     by the statute to exclude offices from coverage based on any 
     of the specified'' statutory criteria. (Emphasis added.) What 
     is mandated is an inquiry by the Board concerning whether 
     exclusion of an employee is justified by the statutory 
     criteria; specifically, an exclusion of a covered employee is 
     mandated only ``if [as a result of the Board's inquiry] the 
     Board determines such exclusion is required.'' (Emphasis 
     added). Thus, the exclusion provision is only conditional, 
     and the exclusion inquiry is to be addressed on an employee-
     by-employee basis, not on an office-by-office basis, as the 
     commenter erroneously suggests.
       Second, contrary to another commenter's suggestion, the 
     statutory language does not require exclusion of employees 
     where such exclusions would merely be ``suitable'' or 
     ``appropriate'' to the conduct of Congress' constitutional 
     responsibilities or to the resolution of a real or apparent 
     conflict of interest. The statutory language cannot properly 
     be read in this fashion.
       The statute expressly states that an exclusion of an 
     employee is appropriate only ``if the Board determines that 
     such exclusion is required because of'' the stated-statutory 
     criteria. (Emphasis added.) The term ``[r]equired implies 
     something mandatory, not something permitted. . . .'' 
     Mississippi River Fuel Corporation v. Slayton, 359 F.2d 106, 
     119 (8th Cir. 1966) (Blackmun, J.). Moreover, while the term 
     ``required'' is capable of different usages, the usage 
     equating with ``necessity'' or ``indispensability'' is the 
     most common one. See Webster's Third New International 
     Dictionary 1929 (1986). And, as part of an ``except[ion]'' to 
     a statutory requirement that the Board's regulations be ``the 
     same'' as the FLRA's regulations and be consistent with the 
     ``provisions and purposes'' of chapter 71 to the ``greatest 
     extent practicable,'' it is highly unlikely that Congress 
     would mandate ``exclusion from coverage''--with loss of not 
     only organization rights, but also rights against discipline 
     or discharge because of engagement in otherwise protected 
     activities--when less restrictive alternatives (e.g., 
     exclusion from a bargaining unit; limitation on the union 
     that may represent the employee) would adequately safeguard 
     Congress' constitutional responsibilities and resolve any 
     real or apparent conflicts of interest.
       In these circumstances, the term ``required'' cannot 
     properly be read to require additional exclusions from 
     coverage merely because they would be ``suitable'' or 
     ``appropriate'' to the conduct of Congress' constitutional 
     responsibilities or to the resolution of a real or apparent 
     conflict of interest. Such an interpretation would not be, 
     ``to the greatest extent practicable,'' ``consistent with the 
     provisions and purposes of chapter 71,'' as section 220(e) 
     requires. Moreover, such an interpretation would be contrary 
     to the CAA's promise that, except where strictly necessary, 
     Congress will be subject to the same employment laws to which 
     the private sector and the executive branch are subject. 
     Indeed, contrary to the CAA's purpose, such an interpretation 
     would rob Members of direct experience with traditional labor 
     laws such as chapter 71, and leave them without the first-
     hand observations that would help them decide whether and to 
     what extent labor law reform is needed and appropriate.
       Third, for these reasons, the Board also rejects one 
     commenter's suggestion that the omission of a ``good cause'' 
     requirement from section 220(e)(1)(B) suggests that a lesser 
     standard for exclusion from coverage was intended. The 
     omission of a ``good cause'' requirement in section 
     220(e)(1)(B) is more naturally explained: The term 
     ``required'' sets the statutory standard in section 
     220(e)(1)(B), and the ``good cause'' standard is simply not 
     needed.
       Finally, contrary to the objections, the legislative 
     history does not support the commenters' view that additional 
     exclusions from coverage are mandated even if not strictly 
     necessary to the conduct of Congress' constitutional 
     responsibilities or to the resolution of a real or apparent 
     conflict of interest. It appears that, at one point in the 
     preceding Congress, some Members expressed: ``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 
     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).

     But the legislative sponsors did not respond to these 
     concerns by excluding all legislative staff from coverage or 
     by requiring exclusion of any section 220(e)(2) office's 
     employees wherever it would be ``suitable'' or 
     ``appropriate.''
       Rather, the legislative sponsors responded by applying 
     chapter 71 (rather than the NLRA) to the legislative branch. 
     Senators John Glenn and Charles Grassley urged this course on 
     the ground that chapter 71 ``includes provisions and 
     precedents that address problems of conflict of interest in 
     the governmental context and that prohibit strikes and 
     slowdowns.'' Id. at 8; 141 cong. rec. S444-45 (daily ed., 
     Jan. 5, 1995) (statement of Sen. Grassley).
       To be sure, the legislative sponsors further provided that, 
     ``as an extra measure of precaution, the reported bill would 
     not apply labor-management law to Members' personal 
     or committee offices or other political offices until the 
     Board has conducted a special rulemaking to consider such 
     problems as conflict of interest.'' Id. However, the 
     legislative sponsors made clear that an appropriate 
     solution to a real or apparent conflict of interest would 
     include, for example, precluding certain classes of 
     employees ``from being represented by unions affiliated 
     with noncongressional or non-Federal unions.'' Contrary to 
     the commenter's argument, exclusion of section 220(e)(2) 
     office employees from coverage was not viewed as 
     inevitably required, even where a conflict of interest is 
     found to exist. 141 Cong. Rec. S626 (daily ed., Jan. 9, 
     1995). Moreover, the legislative sponsors expressly stated 
     that the rulemaking so authorized ``is not a standardless 
     license to roam far afield from such executive branch 
     regulations. The Board cannot determine unilaterally that 
     an insupportably broad view of Congress' constitutional 
     responsibilities means that no unions of any kind can work 
     in Congress.'' Id. That, of course, would be precisely the 
     result of the commenters' proposed standard.

 2. No additional exclusion from coverage of any covered employee of a 
   section 220(e)(2) office is necessary to the conduct of Congress' 
   constitutional responsibilities or to the resolution of a real or 
                     apparent conflict of interest

       The question for the Board, then, is whether, on the 
     present rulemaking record, the additional exclusion from 
     coverage of any covered employee of a section 220(e)(2) 
     office is necessary to the conduct of Congress' 
     constitutional responsibilities or to the resolution of a 
     real or apparent conflict of interest. The Board concludes 
     that no such additional exclusions from coverage are 
     required.

 a. No additional exclusion from coverage is necessitated by Congress' 
                    constitutional responsibilities

       The CAA does not expressly define the ``constitutional 
     responsibilities'' with which section 220(e)(1)(B) is 
     concerned. But, as one commenter has suggested, it may safely 
     be presumed that this statutory phrase encompasses at least 
     the responsibility to exercise the legislative authority of 
     the United States; to advise and consent to treaties and 
     certain presidential nominations; and to try matters of 
     impeachment. Even so defined, however, the Board has no 
     factual or legal basis for concluding that any additional 
     employees of the section 220(e)(2) offices must be excluded 
     from coverage in order for Congress to be able to carry out 
     these constitutional responsibilities or any others assigned 
     to Congress by the Constitution.
       Chapter 71 was itself ``designed to meet the special 
     requirements and needs of the Government.'' 5 U.S.C. 
     Sec. 7101(b). Thus, chapter 71 authorizes the exclusion of 
     any agency or subdivision thereof where necessary to the 
     ``national security,'' and completely excludes from coverage 
     aliens and noncitizens who occupy positions outside of the 
     United States, members of the uniformed services, and 
     ``supervisors'' and ``management officials.'' Id. at 
     Sec. Sec. 7103(a)(2), 7103(b). In addition, chapter 71 
     requires that bargaining units not include ``confidential'' 
     employees, employees ``engaged in personnel work,'' employees 
     ``engaged in administering'' chapter 71, both ``professional 
     employees and other employees,'' employees whose work 
     ``directly affects national security,'' and employees 
     ``primarily engaged in investigation or audit functions 
     relating to the work of individuals'' whose duties ``affect 
     the internal security of the agency.'' Id. at Sec. 7112(b). 
     Likewise, chapter 71 provides that a labor organization that 
     represents (or is affiliated with a union that represents) 
     employees to whom ``any provision of law relating to labor-
     management relations'' applies may not represent any employee 
     who administers any such provision of law; and, chapter 71 
     prohibits according exclusive recognition to any labor 
     organization that ``is subject to corrupt influences or 
     influences opposed to democratic principles,'' id. at 
     Sec. Sec. 7112(c), 7111(f), and precludes an employee from 
     acting in the management of (or as a representative for) a 
     labor organization where doing so would ``result in a 
     conflict or apparent conflict of interest or would otherwise 
     be incompatible with law or with the official duties of the 
     employee.'' Id. at Sec. 7120(e). Furthermore, chapter 71 
     broadly preserves ``Management rights,'' limits collective 
     bargaining to ``conditions of employment,'' and, in that 
     regard, among other things, specifically excludes matters 
     that ``are specifically provided for by Federal statute.'' 
     Id. at 7106, 7103(12)(a), (14). Finally, chapter 71 makes it 
     unlawful for employees and their labor organizations to 
     engage in strikes, slowdowns, or picketing that interferes 
     with the work of the agency. Id. at 7116(b)(7).
       Just as the provisions and precedents of chapter 71 are 
     sufficient to allow the Executive Branch to carry out its 
     constitutional responsibilities, the provisions and 
     precedents of chapter 71 are fully sufficient to allow the 
     Legislative Branch to carry out its constitutional 
     responsibilities. Congress is, of course, a constitutionally 
     separate branch of government with distinct functions and 
     responsibilities. But, by completely excluding 
     ``supervisors'' and ``management officials'' from coverage, 
     and by preserving ``Management rights,'' chapter 71 ensures 
     that Congress is not limited in the exercise of its 
     constitutional powers. Furthermore, by denying ``exclusive 
     recognition'' to any labor organization that ``is subject to 
     corrupt influences or influences opposed to democratic 
     principles,'' chapter 71 ensures that labor organizations 
     will not become a foothold for those who might seek to 
     undermine or overthrow our nation's republican

[[Page H10023]]

     form of government. In addition, by outlawing strikes and 
     other work stoppages, chapter 71 ensures that employee rights 
     to collective organization and bargaining may not be used 
     improperly to interfere with Congress' lawmaking and other 
     functions. Indeed, by specifying that its provisions, 
     ``should be interpreted in a manner consistent with the 
     requirement of an effective and efficient Government,'' 5 
     U.S.C. Sec. 7101(b), chapter 71 makes certain that its 
     provisions will expand and contract to accommodate the 
     legitimate needs of Government, which no doubt in this 
     context include the fulfillment of Congress' constitutional 
     responsibilities.
       The Board cannot legally accept the suggestion of some 
     commenters that collective organization and bargaining rights 
     for section 220(e)(2) office employees are ``inherently 
     inconsistent'' with the conduct of Congress' constitutional 
     responsibilities. These commenters' position may be 
     understood in political and administrative terms. But, under 
     the CAA, such a claim must legally be viewed with great 
     skepticism, for the CAA adopts the premise of our nation's 
     Founders, as reflected in the Federalist papers and other 
     contemporary writings, that government work better and is 
     more responsible when it is accountable to the same laws as 
     are the people and is not above those laws. Such interpretive 
     skepticism is particularly warranted in this context, for the 
     claim that collective bargaining and organization rights for 
     section 220(e)(2) office employees are ``inherently 
     inconsistent'' with Congress' constitutional responsibilities 
     is in considerable tension with the CAA's express requirement 
     that the Board examine the exclusion issue on an employee-by-
     employee basis. Indeed, section 220(e) of the CAA expressly 
     requires the Board to accept, ``to the greatest extent 
     practicable,'' the findings of Congress in chapter 71 that 
     ``statutory protection of the right of employees to 
     organize, bargain collectively, and participate through 
     labor organizations of their own choosing in decisions 
     which affect them--(A) safeguards the public interest, (B) 
     contributes to the effective conduct of public business, 
     and (C) facilitates and encourages the amicable 
     settlements of disputes between employees and their 
     employers involving conditions of employment.'' 5 U.S.C. 
     Sec. 7101(a). The statutory instruction to honor these 
     findings to ``the greatest extent practicable'' is 
     directly at odds with the commenters' ``inherent 
     inconsistency'' argument.
       Moreover, contrary to the commenters' suggestion, neither 
     the allegedly close working relationships between the 
     principals of section 220(e)(2) offices and their staffs nor 
     the allegedly close physical quarters in which section 
     220(e)(2) office employees work can legally justify the 
     additional exclusions from coverage that the commenters seek. 
     Chapter 71 already excludes from coverage all ``management 
     officials'' and ``supervisors''--i.e., those employees who 
     are in positions ``to formulate, determine, or influence the 
     policies of the agency,'' and those employees who have the 
     authority to hire, fire, and direct the work of the office. 
     Moreover, chapter 71 excludes from bargaining units 
     ``confidential employees,'' ``employees engaged in personnel 
     work,'' and various other categories of employees who, by the 
     nature of their job duties, might actually have or might 
     reasonably be perceived as having irreconcilably divided 
     loyalties and interests if they were to organize. Beyond 
     these carefully crafted exclusions, however, chapter 71 
     rejects both the notion that ``unionized employees would be 
     more disposed than unrepresented employees to breach their 
     obligation of confidentiality,'' and the notion that 
     representation by a labor organization or ``membership in a 
     labor organization is in itself incompatible with the 
     obligations of fidelity owed to an employer by its 
     employee.'' In re Dept. of Labor, Office of the Solicitor, 
     Arlington Field Office and AFGE Local 12, 37 F.L.R.A. at 1380 
     (citations omitted; internal quotations omitted). Rather, as 
     the Supreme Court recently reiterated, the law in the private 
     and public sectors requires that acts of disloyalty or misuse 
     of confidential information be dealt with by the employer 
     through, e.g., non-discriminatory work rules, discharge and/
     or discipline. See NLRB v. Town & Country Electric, Inc., 116 
     S. Ct. 450, 457 (1995). These rulings are especially 
     applicable and appropriate in the context of politically 
     appointed employees in political offices of the Legislative 
     Branch, since such employees generally are likely to be 
     uniquely loyal and faithful to their employing offices.
       In this same vein, the Board cannot legally accept the 
     suggestion that additional exclusions from coverage of 
     section 220(e)(2) office employees are justified by reference 
     to Members' understandable interest in hiring and firing on 
     the basis of ``political compatibility.'' While a long and 
     forceful tradition in this country, hiring and firing on the 
     basis of ``political compatibility'' is not a constitutional 
     right, much less a constitutional responsibility, of the 
     Congress or its Members. Moreover, while section 502 of the 
     CAA provides that it ``shall not be a violation of any 
     provision of section 201 to consider the . . . political 
     compatibility with the employing office of an employee,'' 2 
     U.S.C. Sec. 1432, section 502 noticeably omits section 220 
     from its reach. Thus, the Board has no legal basis for 
     construing section 220(e)(1)(B) to require additional 
     exclusions from coverage in order to protect the interest of 
     Members in ensuring the ``political compatibility'' of 
     section 220(e)(2) office employees.
       Furthermore, the Board cannot legally accept the suggestion 
     that exclusion of all employees in personal, committee, 
     leadership or legislative support offices is justified to 
     prevent labor organizations from obtaining undue influence 
     over Members' legislative activities. The issue of organized 
     labor's influence on the nation's political and legislative 
     processes is one of substantial public interest. But 
     commenters have not explained how organized labor's effort to 
     advance its political and legislative agenda legally may be 
     found to constitute an interference with Congress' 
     constitutional responsibilities. Moreover, chapter 71 only 
     authorizes a labor organization to compel a meeting 
     concerning employees' ``conditions of employment'' that are 
     not specifically provided for by Federal statute. Thus, a 
     labor organization may not lawfully use chapter 71 either to 
     demand a meeting about a Member's legislative positions or to 
     seek to negotiate with the Member about those legislative 
     positions.
       Finally, the Board cannot legally accept the suggestion 
     that additional exclusions from coverage of section 220(e)(2) 
     office employees are necessary to ensure that Members are 
     neither inhibited in nor distracted from the performance of 
     their constitutional duties. The Board does not doubt that, 
     if employees choose to organize, compliance with section 220 
     may impose substantial administrative burdens on Members 
     (just as compliance with the other laws made applicable by 
     the CAA surely does). Such administrative burdens might have 
     been a ground for Congress to elect in the CAA to exempt 
     Members and their immediate offices from the scope of section 
     220 (just as the Executive Office of the President is exempt 
     from chapter 71 and from many of the other employment laws 
     incorporated in the CAA). But Congress did not do so. 
     Instead, Congress imposed section 220 on all employing 
     offices and provided an ``except[ion]'' for employees of 
     section 220(e)(2) offices only where exclusion from coverage 
     is required by Congress' constitutional responsibilities (or 
     a real or apparent conflict of interest). The Board cannot 
     now lawfully find that the administrative burdens of 
     compliance with section 220 are the constitutional grounds 
     that justify the additional exclusion from coverage of any 
     section 220(e)(2) office employees; on the contrary, the 
     Board is bound to apply the CAA's premise that Members of 
     Congress will better and more responsibly carry out their 
     constitutional responsibilities if they are in fact subject 
     to the same administrative burdens as the laws impose upon 
     our nation's people.

  b. No additional exclusion is necessitated by any real or apparent 
                          conflict of interest

       Nor can the Board lawfully find on this rulemaking record 
     that additional exclusions from coverage of employees of 
     section 220(e)(2) offices are required by a real or apparent 
     conflict of interest. Since the phrase ``conflict of interest 
     or appearance of conflict of interest'' is not defined in the 
     CAA, it must be construed ``in accordance with its ordinary 
     and natural meaning.'' FDIC v. Meyer, 114 S. Ct. 996, 1001 
     (1994). The ``ordinary and natural meaning'' of ``conflict of 
     interest or appearance of conflict of interest'' is a real or 
     reasonably apparent improper or unethical ``conflict between 
     the private interests and the official responsibilities of a 
     person in a position of trust (such as a government 
     official).'' Webster's Ninth New Collegiate Dictionary 276 
     (1990). Accord, Black's Law Dictionary 271 (5th ed. 1979). 
     Specifically, as Senate and House ethics rules make clear, 
     under Federal law the phrase ``conflict of interest or 
     appearance of conflict of interest'' refers to ``a situation 
     in which an official's conduct of his office conflicts with 
     his private economic affairs.'' House Ethics Manual 87 
     (1992); Senate Rule XXXVII. After thorough examination of the 
     matter, the Board has found no tenable legal basis for 
     concluding that additional exclusions from coverage of any 
     employees of section 220(e)(2) offices are necessary to 
     address any real or reasonably perceived incompatibility 
     between employees' private financial interests and their 
     public job responsibilities.
       As noted above, by excluding ``management officials'' and 
     ``supervisors'' from coverage, and by requiring that 
     bargaining units not include ``confidential employees'' and 
     ``employees engaged in personnel work,'' chapter 71 already 
     categorically resolves the real or apparent conflicts of 
     interest that may be faced by employees whose jobs involve 
     setting, administering or representing their employer in 
     connection with labor-management policy or practices. 
     Similarly, by requiring that bargaining unit not include 
     employees ``engaged in administering'' chapter 71, chapter 71 
     already resolves real or apparent conflicts of interest that 
     might arise for employees of, for example, the Office of 
     Compliance. Furthermore, by precluding an employee from 
     acting in the management of (or as a representative for) a 
     labor organization, where doing so would ``result in a 
     conflict of interest or apparent conflict of interest or 
     would otherwise be incompatible with law or with the official 
     duties of the employee,'' chapter 71 already directly 
     precludes an employee from assuming a position with the union 
     (or from acting on behalf of the union) where he or she could 
     confer a personal economic benefit on him or herself. And, as 
     an added precaution, the Board has adopted a regulation under 
     section 220(d) that authorizes adjustment of the substantive 
     requirements of section 220 where ``necessary to avoid a 
     conflict of interest or appearance of conflict of interest.'' 
     Therefore, all conceivable real and apparent conflicts of 
     interests are resolvable without the need for additional 
     exclusion from coverage.

[[Page H10024]]

       The Board finds legally untenable the suggestion of several 
     commenters that, by directing the Board to consider these 
     real or apparent conflict of interest issues in its 
     rulemaking process, section 220(e)(1)(B) entirely displaces 
     and supersedes the conflict of interest provisions and 
     precedents of chapter 71 and section 220(d) where employees 
     of section 220(e)(2) offices are concerned. Section 220(e) 
     specifically provides that the Board's regulations for 
     section 220(e)(2) offices ``shall, to the greatest extent 
     practicable, be consistent with the provisions and purposes 
     of chapter 71'' and ``shall be the same as substantive 
     regulations issued by'' the FLRA. As pertinent here, it makes 
     an ``except[ion]'' only `if the Board determines that * * * 
     exclusion [of a section 220(e)(2) office employee] is 
     required because of * * * a conflict of interest or 
     appearance of a conflict of interest.'' This conditional 
     exception--applicable only ``if'' the Board determines that 
     an exclusion from coverage is ``required'' by a real or 
     apparent conflict of interest--plainly does not displace or 
     supersede the provisions and precedents of chapter 71 and 
     section 220(d) that section 220(e) expressly applies to 
     section 220(e)(2) offices. Indeed, as the statutory language 
     and legislative history discussed above confirm, section 
     220(e)(1)(B) requires this rulemaking merely as a ``special 
     precaution'' to ensure that chapter 71 and section 220(d) 
     appropriately and adequately deal with conflict of interest 
     issues in this context.
       The Board similarly cannot legally accept the suggestion 
     that exclusion of employees in personal, committee, 
     leadership and party caucus offices in necessary to address 
     ``the most important legislative conflict of interest issue--
     the appearance or reality of influencing legislation.'' While 
     understandable in political terms, this suggest has no 
     foundation in the law which the Board is bound to apply.
       To begin with, the Board has no basis for concluding that 
     the provisions and precedents of chapter 71 and section 
     220(d) are inadequate to resolve any such conflict of 
     interest issues. Although commenters correctly point out that 
     the Executive Office of the President is not covered by 
     Chapter 71, they provide no evidence that this exclusion 
     resulted from conflict of interest concerns. Moreover, though 
     commenters suggest that employees of the Executive Branch 
     engage in only administrative functions, the Executive Branch 
     in fact has substantial political functions relating to the 
     legislative process--including e.g., recommending bills for 
     consideration, providing Congress with information about the 
     state of the Union, and vetoing bills that pass the Congress 
     over the President's objection. Furthermore, almost every 
     executive agency covered by chapter 71 has legislative 
     offices with both appointed and career employees who, like 
     section 220(e)(2) office employees, are responsible for 
     meeting with special interest groups, evaluating and 
     developing potential legislation, and making recommendations 
     to their employers about whether to sponsor, support or 
     oppose that or other legislation. Chapter 71 does not exclude 
     from its coverage Executive Branch employees performing such 
     policy and legislative-related functions (much less the 
     secretaries and clerical personnel in their offices); and, 
     contrary to one commenter's suggestion, chapter 71 does not 
     exclude from its coverage schedule ``C'' employees who are 
     outside of the civil service and who are appointed to perform 
     policy-related functions and to work closely with the heads 
     of Executive Branch departments. See U.S. Dept. of HUD and 
     AFGE Local 476, 41 F.L.R.A. 1226, 1236-37 (1991). Since the 
     Board has no evidence that the conflict of interest issues 
     for section 220(e)(2) office employees materially differ from 
     the conflict of interest issues that these Executive Branch 
     employees face, the Board has no proper basis for finding 
     that additional section 220(e)(2) office employees must be 
     excluded from coverage simply because they too are outside of 
     the civil service and perform legislative-related functions.
       Second, the Board is not persuaded that the concern 
     expressed by the commenters--i.e., that labor organizations 
     will attempt to influence the legislative activities of 
     employees who they are seeking to organize and represent--
     even constitutes a ``conflict of interest or appearance of 
     conflict of interest'' within the meaning of that statutory 
     term. As noted above, under both common usage and House and 
     Senate ethics rules (as well as under federal civil service 
     rules and other federal laws), the statutory phrase 
     ``conflict of interest or appearance of conflict of 
     interest'' refers to a situation in which an official's 
     conflict of his office actually or reasonably appears 
     unethically to provide him or her with a private economic 
     benefit. While the Board understands that accepting gifts 
     from labor organizations might actually or apparently 
     constitute receipt of such an improper pecuniary benefit, the 
     Board fails to see how working with labor organizations 
     concerning their legislative interests confers or appears to 
     confer any improper private economic benefit on legislative 
     employees--just as the Board does not see how working on 
     legislative matters with other interest groups to which the 
     employee might belong (such as the American Tax Reduction 
     Movement, the Sierra Club, the National Rifle Association, 
     the National Right to Work Foundation, the NAACP, and/or the 
     National Organization of Women) would do so. On the contrary, 
     it is the employees' job to meet with special interest groups 
     of this type, to communicate the preferences and demands of 
     these special interest groups to the Members of committees 
     for which they work, and, where allowed or instructed to do 
     so, to assist or opposed these special interest groups in 
     pursuing their legislative interests.
       It is true, as one commenter notes, that, in contrast to 
     other interest groups, a labor organization could, in 
     addition to its legislation activities, seek to negotiate 
     with an employing office about the employees ``conditions of 
     employment.'' But each of the employees would have to 
     negotiate individually with the employing office if the union 
     did not do so collectively for them. Moreover, since those 
     who negotiate for the employing office and decide whether or 
     not to provide or modify any such ``conditions of 
     employment'' may by law not be part of the unit that the 
     union represents, section 220(e)(2) office employees could 
     not through the collective negotiation of their ``conditions 
     of employment'' unethically provide themselves or appear to 
     provide themselves with an improper pecuniary benefit for the 
     way that they perform their official duties for the employing 
     office. Thus, collective organization of section 220(e)(2) 
     office employees would not create a real or apparent conflict 
     of interest--just as it does not for appointed and career 
     employees in the Executive Branch who perform comparable 
     policy or legislative-related functions.
       To be sure, because of an employee's sympathy with or 
     support for the union (or any other interest group), the 
     employee could urge the Member or office for which he or she 
     works to take a course that is not in the employer's ultimate 
     best political or legislative interest. Indeed, it is even 
     conceivable that, because of the employee's sympathy with or 
     support for a particular interest group such as organized 
     labor, the employee could act disloyally and purposefully 
     betray the Member's or the employing office's interests. But 
     employees could could have such misguided sympathies, provide 
     such inadequate support, and/or act disloyally whether or not 
     they are members of or represented by a union. Thus, just as 
     was true in the context of Congress' constitutional 
     responsibilities (and as is true for Executive Branch 
     employees), the legally relevant issues in such circumstances 
     are ones of acceptable job performance and appropriate 
     bargaining units, work rules, and discipline--not issues of 
     real or apparent conflicts of interest. See NLRB v. Town and 
     Country Electric, Inc, 116 S. Ct, at 456-57.
       It is also true that organized labor has a particular 
     interest in legislative issues relating to employment and 
     that, if enacted, some of the resulting laws could work to 
     the personal economic benefit of employees in section 
     220(e)(2) offices and, indeed, sometimes even to the economic 
     benefit of Members (e.g. federal pay statutes). But whenever 
     Members or their staffs work on legislation there is reason 
     for concern that they will seek to promote causes that will 
     personally benefit themselves or groups to which they 
     belong--whether it be with respect to, e.g., their income tax 
     rates, their statutory pay and benefits, the grounds upon 
     which they can be denied consumer credit, or the ease with 
     which they can obtain air transportation to their home 
     states. These concerns, however, will arise whether or not 
     employees in section 220(e)(2) offices are allowed to 
     organize and bargain collectively concerning their 
     ``conditions of employment,'' and cannot conceivably 
     ``require'' the exclusion of additional section 220(e)(2) 
     office employees from coverage under section 220. As a 
     Bipartisan Task Force on Ethics has so well stated:
       ``A conflict of interest is generally defined as a 
     situation in which an official's private financial interests 
     conflict or appear to conflict with the public interest. Some 
     conflicts of interest are inherent in a representative system 
     of government, and are not in themselves necessarily improper 
     or unethical. Members of Congress frequently maintain 
     economic interests that merge or correspond with the 
     interests of their constituents. This community of interest 
     is in the nature of representative government, and is 
     therefore inevitable and unavoidable.''

     House Bipartisan Task Force on Ethics, Report on H.R. 3660, 
     101st Cong, 1st Sess. 22 (Comm. Print, Comm, on Rules 1989), 
     reprinted in 135 Cong. Rec. H9253, H9259 (daily ed. Nov. 21, 
     1989).
       The Board does not mean to suggest that the public does not 
     have a legitimate interest in knowing about the efforts that 
     interest groups (such as organized labor) make to influence 
     Members and their legislative staffs or the financial 
     benefits that Members and their legislative staffs receive. 
     But, as the recently enacted Lobbying Disclosure Act 
     evidences, and as the Bipartisan Task Force on Ethics long 
     ago concluded, lobbying contact disclosure and ``public 
     financial disclosure, coupled with the discipline of the 
     electrical process, remain[s] the best safeguard[s] and the 
     most appropriate method[s] to deter and monitor potential 
     conflicts of interest in the legislative branch.'' House 
     Bipartisan Task Force on Ethics. 135 Cong. Rec. at H9259.
       For these reasons, the Board also declines to adopt the 
     suggestions that it exclude from coverage by regulation, on 
     the ground of ``conflict of interest or appearance of 
     conflict or interest,'' all employees of section 220(e)(2) 
     offices who are shown in an appropriate case to be ``exempt'' 
     employees within the meaning of the Fair Labor Standards Act 
     (``FLSA''). This suggestion would improperly

[[Page H10025]]

     allow unions and/or the General Counsel to challenge an 
     employing office's compliance with section 203 of the CAA in 
     the context of a section 220 proceeding. Moreover, under both 
     private sector law and chapter 71, employees are not 
     uniformly excluded from coverage by viture of their 
     ``exempt'' status, even though such employees may exercise 
     considerable discretion and independent judgment in 
     performing their duties, serve in sensitive positions 
     requiring unquestionable loyalty to their employers, and/or 
     have access to privileged information. Thus, doctors who are 
     responsible for the counseling and care of millions of ill 
     persons are allowed to organize; engineers who are 
     responsible for ensuring the safety of nuclear power plants 
     are allowed to organize; lawyers who are responsible for 
     providing privileged advice and for prosecuting actions on 
     behalf of the Government (such as attorney at the Department 
     of Labor and at the NLRB) are allowed to organize; and 
     schedule ``C'' employees who are outside of the civil 
     service, work closely with the heads of Executive Branch 
     department, and assist in the formulation of Executive Branch 
     policy are not excluded from coverage under chapter 71. 
     Nothing about those employees' ``exempt'' status itself 
     establishes a real or apparent incompatibility between an 
     employee's conduct of his office and his private economic 
     affairs. Not tenable legal basis has been offered for 
     reaching a different conclusion about the ``exempt'' 
     employees of section 220(e)(2) offices.
       For similar reasons, the Board declines to adopt the 
     suggestion that it exclude from coverage by regulation, on 
     the ground of ``conflict of interest or appearance of 
     conflict of interest,'' all employees in section 220(e)(2) 
     offices who hold particular job titles--e.g., Administrative 
     Assistants, Staff Directors, and Legislative Directors. The 
     Board has no doubt that many section 220(e)(2) office 
     employees in such job classifications will, because of the 
     actual duties that these employees perform, be excluded from 
     coverage as ``management officials'' or ``supervisors''. And 
     the Board similarly has no doubt that many section 220(e)(2) 
     office employees in these or other job classifications will, 
     because of the actual duties that these employees perform, be 
     excluded from particular bargaining units as ``confidential 
     employees,'' ``employees engaged in personnel work,'' 
     ``professional employees,'' etc. But, as decades of 
     experience in myriad areas of employment law have taught, 
     these legal judgments must turn on the actual job duties that 
     the employees individually perform, and not on their job 
     titles or job classifications. It is the actual job duties 
     of the employees that dictate whether the concern of the 
     particular law in issue is actually implicated (e.g., 
     whether there is a real or apparent conflict of interest); 
     and the use of job titles in a regulation would unwisely 
     have legal conclusions turn on formalisms that are easily 
     subject to manipulation and error (e.g., different 
     employing offices may assign the same job title or job 
     classification to employees who perform quite distinct job 
     responsibilities and functions).
       In sum, the six month period during which the job titles 
     and job classifications applicable to section 220(e)(2) 
     office employees have been thoroughly investigated and 
     studied by the Board, neither the statutory appointees nor 
     the Board--or, for that matter, any commenter--has identified 
     any job duty or job function that, in the context of 
     collective organization, would categorically create a real or 
     apparent conflict of interest that is not adequately 
     addressed by the provisions and precedents of chapter 71 and 
     the Board's section 220(d) regulations. Accordingly, on this 
     record, the Board has no legal basis for excluding any 
     additional section 220(e)(2) office employees from coverage 
     by regulation; and, for the reasons here stated, it would be 
     contrary to the effective implementation of the CAA for the 
     Board to reframe existing regulatory exclusions in terms of 
     the job titles or job classifications presently used by 
     certain section 220(e)(2) offices.

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

       For these reasons, the Board will not exclude any 
     additional section 220(e)(2) office employees from coverage 
     in its final section 220(e) regulations. Moreover, the Board 
     will not adopt a regulation that specially authorizes 
     consideration of these exclusion issues in any particular 
     case. Although the Board proposed to do so in its NPR (as a 
     precautionary measure to ensure that employing offices were 
     not prejudiced by the paucity of comments provided in 
     response to the ANPR), commenters have vigorously objected to 
     any such regulation. Having carefully considered this matter 
     and determined both that no exclusions are required on this 
     rulemaking record and that all foreseeable constitutional 
     responsibility and conflict of interest issues may be 
     appropriately accommodated under section 220(d) and chapter 
     71, the Board now concludes that no such regulation is 
     necessary.
       We now turn to the partial dissent. With all due respect to 
     our colleagues, we strongly disagree that the CAA envisions a 
     different rulemaking process for the Board's section 
     220(e)(1)(B) inquiry than the one that the Board has followed 
     in this rulemaking and in all of its other substantive 
     rulemakings. The section 220(e)(1)(B) inquiry is unique only 
     in terms of the substantive criteria which the statute 
     directs the Board to apply and the effective date of its 
     provisions. In terms of the Board's process, section 220(e) 
     expressly requires--just as the other substantive sections of 
     the CAA expressly require--the Board to adopt its 
     implementing regulations ``pursuant to section 304'' of the 
     CAA, 2 U.S.C. Sec. 1351(e), which in turn requires that the 
     Board conduct its rulemakings ``in accordance with the 
     principles and procedures set forth'' in the APA. 2 U.S.C. 
     Sec. 1384(b). The partial dissent's argument that a different 
     and distinct process is required under section 220(e)(1)(B) 
     is at odds with these express statutory requirements.
       Nor is there any basis for the partial dissent's charge 
     that the Board's section 220(e)(1)(B) inquiry was 
     ``passive,'' ``constrained solely by written submissions,'' 
     and undertaken without ``sufficient knowledge of 
     Congressional staff functions, responsibilities and 
     relationships. . . .'' In the ANPR and the NPR, the Board 
     afforded all interested parties two opportunities to address 
     these issues. The Board carefully considered the comments 
     received from employing offices and their administrative 
     aids--i.e., those who are most knowledgeable about the job 
     duties and functions of congressional staff and who should 
     have had the most interest in informing the Board about the 
     relevant issues in this rulemaking. Moreover, over the past 
     six months, the Board has received extensive recommendations 
     from the Executive Director and the Deputy Executive 
     Directors of the House and Senate--recommendations that were 
     based upon the statutory appointees' own legislative branch 
     experiences, their substantial knowledge of these laws, their 
     appropriate discussions with involved parties and those 
     knowledgeable about job duties and responsibilities in 
     section 220(e)(2) offices, and their own independent 
     investigation of the pertinent factual and legal issues. In 
     addition, the General Counsel has provided interested Board 
     members with extensive legal advice about these issues. 
     Indeed, during the past six months, members of the Board were 
     able to review vast quantities of publicly available 
     materials that, among other things, describe in detail the 
     job functions, job responsibilities, and office work 
     requirements and restrictions for employees of the section 
     220(e)(2) offices. The claim of the partial dissent that this 
     material still needs to be found is thus completely 
     mystifying to the Board; and, since neither the dissenters 
     nor the commenters have pointed to any other information that 
     would be of assistance in deciding the section 220(e)(1)(B) 
     issues, it seems clear that the dissenting members' objection 
     is not with the sufficiency of the information available to 
     themselves or to the Board, but rather is with the result 
     that the Board has reached.
       In advocating a different result about the appropriateness 
     of additional exclusions from coverage, however, the partial 
     dissent simply ignores the statutory language and legislative 
     history of section 220 of the CAA. For all of its repeated 
     exhortations about the need to implement the will of 
     Congress, the partial dissent does not identify the 
     constitutional responsibilities or conflicts of interests 
     that supposedly require the additional exclusions from 
     coverage that the dissenters raise for consideration. Indeed, 
     the partial dissent does not even conclude which of its 
     various suggested possible exclusions from coverage are 
     ``required'' by section 220(e)(1)(B) or why.
       The partial dissent's critique of the Board's analysis is 
     similarly bereft of legal authority. While criticizing the 
     Board for relying on precedents under chapter 71, the partial 
     dissent ignores section 220(e)'s express command that the 
     Board's implementing regulations under section 220(e)(1)(B) 
     be consistent ``to the greatest extent practicable'' with the 
     ``provisions and purposes'' of chapter 71. Moreover, while 
     noting that legislative branch employees of state governments 
     have not been granted the legal right to organize, the 
     partial dissent fails to acknowledge that this gap in state 
     law coverage results from state laws having generally been 
     modelled after federal sector law (which, until the CAA's 
     enactment, did not cover congressional employees); and, in 
     all events, the partial dissent fails to acknowledge that 
     section 220 itself rejects this state law experience by 
     covering without qualification non-section 220(e)(2) office 
     employees and by allowing exclusion of section 220(e)(2) 
     office employees only if required by the stated statutory 
     criteria. Finally, while asserting that employees in the 
     section 220(e)(2) offices perform functions that are not 
     comparable to functions employed by any covered employees in 
     the Executive Branch, the partial dissent never specifically 
     identifies these supposedly unique job duties and functions 
     and, even more importantly, never explains why the 
     provisions of chapter 71 and section 220(d) are inadequate 
     to address constitutional responsibility or conflict of 
     interest issues arising from them. In short, with all 
     respect, the partial dissent does not provide any 
     acceptable legal basis for concluding that additional 
     regulatory exclusions from coverage are required to 
     address any constitutional responsibility or conflict of 
     interest issues.
       The partial dissent similarly errs in suggesting that the 
     Board has ``apparent reluctance or disdain'' for regulatory 
     resolutions and instead prefers adjudicative resolutions. 
     Like our dissenting colleagues, the Board applauds the NLRB's 
     innovative effort--undertaken under the leadership of then-
     NLRB Chairman Jim Stephens, who is now Deputy Executive 
     Director for the House--to use rulemaking to address certain 
     bargaining unit issues that have arisen in the health care 
     industry. But the issue here is not

[[Page H10026]]

     whether the NLRB should be praised for having done so or, for 
     that matter, whether regulatory resolutions are generally or 
     even sometimes superior to adjudicative resolutions in that 
     or other contexts. Nor is the issue whether Congress has 
     stated a preference for regulatory resolutions in the CAA. 
     Rather, the issue here is whether additional exclusions from 
     coverage are required to address any constitutional 
     responsibility or conflict of interest issues that may arise 
     in connection with collective organization of section 
     220(e)(2) office employees. For the reasons earlier stated, 
     the Board has concluded that no such additional exclusions 
     from coverage are required to do so. Thus, to the extent that 
     any constitutional responsibility or conflict of interest 
     issue is left to be resolved adjudicatively, it is only 
     because, where complete exclusion from coverage is not 
     required, the CAA instructs the Board to follow chapter 71's 
     preference for addressing matters of this type in the context 
     of a particular case, and because any constitutional 
     responsibility or conflict of interest issue may be 
     satisfactorily addressed by approaches that are less 
     restrictive than complete exclusion from coverage of section 
     220(e)(2) office employees. The Board regrets that the 
     partial dissent confuses the Board's respect for the commands 
     of the CAA with a ``disdain'' for rulemaking that the Board 
     does not have.
       With all respect to our colleagues, the partial dissent's 
     own lack of attention to the commands of the CAA is 
     strikingly revealed by its discussion of the uncertainty and 
     delay that allegedly will result from not resolving all 
     constitutional responsibility and conflict of interest issues 
     through additional exclusions from coverage. Regulatory 
     uncertainty and delay should be reduced where legally 
     possible and appropriate. But inclusion of the constitutional 
     responsibility and conflict of interest issues in the mix of 
     issues that inevitably must be addressed in a unit 
     determination will not have the unique practical significance 
     that the dissent claims, since employment in the legislative 
     branch is in fact not substantially more transient than is 
     employment in many parts of the private and federal sectors 
     (e.g., construction, retail sales, canneries in Alaska), 
     since private and Executive Branch employers also work under 
     ``time pressures'' that ``are intense and uneven,'' and since 
     the Board has designed its section 220(d) procedures to deal 
     with all unit determination issues as promptly as or more 
     promptly than comparable issues are dealt with in the private 
     and federal sectors. And, in all events, it is clear that 
     administrative burdens of the type discussed by the partial 
     dissent cannot legally justify additional exclusions from 
     coverage, because these administrative burdens legally have 
     nothing to do with the constitutional responsibility and 
     conflict of interests inquiries to which the Board is limited 
     under the statute; indeed, as noted above, the premise of the 
     CAA is that Congress will better exercise its constitutional 
     responsibilities if it is subject to the same kinds of 
     administrative burdens as private sector and Executive Branch 
     employers are subject to under these laws.
       The Board appreciates its dissenting colleagues' concern 
     that, if employees of section 220(e)(2) offices should choose 
     to organize, elected officials in Congress may have to 
     negotiate about their employees' ``conditions of employment'' 
     with political friends or foes. But the Board cannot agree 
     that these political concerns require or allow the additional 
     possible exclusions from coverage that are mentioned in the 
     partial dissent. Such political concerns do not legally 
     establish an interference with Congress' constitutional 
     responsibilities or a real or apparent conflict of interest; 
     and the CAA by its express terms only allows additional 
     exclusions from coverage that are required by such 
     constitutional responsibilities or conflicts of interest. If 
     the CAA is to achieve its objectives and the Board is to 
     fulfill its responsibilities, the Board must adhere to the 
     terms of the law that the Congress enacted and that the 
     President signed; the Board may not properly relax the law so 
     as to address non-statutory concerns of this type.
       C. Section 220(e)(2)(H) Offices
       Section 220(e)(2)(H) of the CAA authorizes the Board to 
     issue regulations identifying ``other offices that perform 
     comparable functions'' to those employing offices 
     specifically listed in paragraph (A) through (G) of section 
     220. In response to a comment on the ANPR, the Board proposed 
     in the NPR to so identify four offices--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 of the Senate. 
     No comments were received regarding this proposal, and the 
     final regulation will specifically identify these offices, 
     pursuant to section 220(e)(2)(H), as section 220(e)(2) 
     offices.
       In response to comments received by the Board, the final 
     regulation will also identify and include the following 
     employing offices in the House of Representatives as 
     performing ``comparable functions'' to those offices 
     specified in section 220(e)(2)) of the CAA: the House 
     Majority Whip; the House Minority Whip; the Office of House 
     Employment Counsel; the Immediate Office of the Clerk; the 
     Office of Legisaltive Computer Systems; the Immediate Office 
     of the Chief Administrative Officer; the Immediate Office of 
     the Sergeant at Amrs; and the Office of Finance.
       As explained by one of the commenters, these offices have 
     responsibilities and perform functions that are commensurate 
     with those offices specifically listed in section 22)(e)(2) 
     or those offices identified in the proposed regulations. 
     Thus, the duties and functions of the House Majority and 
     Minority Whips are similar to the Offices of the Chief Deputy 
     Majority Whips and the Offices of the Chief Deputy Minority 
     Whips, which are expressly included in section 220(e)(2)(D). 
     The Office of House Employment Counsel was created, following 
     the enactment of the CAA, to provide legal advice and 
     representation to House employing offices on labor and 
     employment matters; this office performs functions similar to 
     those of the Office of the House General Counsel, which is 
     included in section 220(e)(2)(E), and those of the Senate 
     Chief Counsel for Employment, which is identified in section 
     220(e)(2)(C).
       Similarly, the Immediate Office of the Clerk of the House 
     performs functions parellel to those performed by the 
     Executive Office of the Secretary of the Senate, which is 
     treated as a section 220(e)(2) office under these final 
     regulations. Both offices are responsible for supervising 
     activities that have a direct connection to the 
     legislative process. Likewise, the Immediate Office of the 
     House Sergeant at Arms has duties that correspond to those 
     of the Administrative Office of the Senate Sergeant at 
     Arms. Both offices are charged with maintaining security 
     and decorum in each legislative chamber.
       The House Office of Legislative Computer Systems runs the 
     electronic voting system and handles the electronic 
     transcription of official hearings and of various legislative 
     documents; these functions are similar to those functions 
     performed by the Office of Legislative Operations and 
     Official Reporters, both of which are listed in section 
     220(e)(2)(D).
       The Immediate Office of the Chief Administrative Officer 
     has responsibilities and performs functions that are 
     comparable to those performed by the Executive Office of the 
     Secretary of the Senate and the Administrative Office of the 
     Senate Sergeant at Arms, which are treated as section 
     220(e)(2) offices under these final regulations. Similarly, 
     the House Office of Finance, like the Senate Disbursing 
     Office, is responsible for the disbursement of payrolls and 
     other funds, together with related budget and appropriation 
     activities, and therefore will be treated, pursuant to 
     section 220(e)(2)(H), as a section 220(e)(2) office.
     VI. Method of Approval
       The Board received no comments on the method of approval 
     for these regulations. Therefore, the Board continues to 
     recommend that (1) the version of the regulations that shall 
     apply to the Senate and employees of the Senate should be 
     approved by the Senate by resolution; (2) the version of the 
     regulations that shall apply to the House of Representatives 
     and employees of the House of Representatives should be 
     approved by the House of Representatives by resolution; and 
     (3) the version of the regulations that apply to other 
     covered employees and employing offices should be approved by 
     concurrent resolution.
       Accordingly, the Board of Directors of the Office of 
     Compliance hereby adopts and submits for approval by the 
     Congress the following regulations.
       Signed at Washington, D.C., on this 19 day of August, 1996.

                                                Glen D. Nager,

                                  Chair of the Board of Directors,
     Office of Compliance.
                                                                    ____

       Member Seitz, concurring: In section 220 of the 
     Congressional Accountability Act (``CAA'' or ``Act''), 
     Congress instructed the Board of Directors of the Office of 
     Compliance (``the Board'') to issue regulations that provide 
     Congressional employees with certain rights and protections 
     of chapter 71 of Title 5 of the United States Code. Most 
     significantly, Congress commanded that the regulations issued 
     be ``the same as substantive regulations issued by the 
     Federal Labor Relations Authority'' unless the Board 
     determines either that modified regulations would more 
     effectively implement the rights and protections of chapter 
     71 (section 220(e)(1)(A)) or that exclusion from coverage of 
     employees in the so-called political offices is ``required'' 
     because of a conflict of interest or appearance of conflict 
     of interest or because of Congress' constitutional 
     responsibilities 220(e)(1)(B)). The Board faithfully 
     fulfilled its statutory duty: We conducted the rulemaking 
     required under section 304 of the Act, adhering to the 
     principles and procedures embodied in the Administrative 
     Procedure Act, as Congress instructed us to do. We examined 
     and carefully considered the comments received and--with the 
     assistance of the experienced and knowledgeable Executive 
     Director and Deputy Executive Directors of the Office--we 
     independently collected and analyzed the relevant factual and 
     legal materials. Ultimately, the Board determined that there 
     was no legal or factual justification for deviation from 
     Congress' principal command--that the regulations issued to 
     implement chapter 71 be the same as the regulations issued by 
     the Federal Labor Relations Authority. The regulations we 
     issue today reflect that considered determination.
       The dissent unfairly attacks both the Board's processes and 
     its conclusion.
       The dissent attacks the Board's processes by stating both 
     that section 220(e)(1)(B) of the Act requires some kind of a 
     different ``proactive'' rulemaking process and that ``the 
     Board did not undertake to make an

[[Page H10027]]

     independent inquiry'' regarding the regulatory issues. As the 
     preamble details, this attack is baseless. The Board 
     conducted the statutorily-required rulemaking, a process 
     which included substantial supplementation of the comments 
     received with independent inquiry and investigation and the 
     application of its own--and its appointees'--expertise.
       The dissent's suggestion that the Board majority and the 
     Board's appointees did not, in fact, do the spadework 
     necessary to make the judgments made in both ungenerous and 
     untrue, as it impugns the hard work and careful thought 
     devoted to a sensitive issue by all concerned. And, indeed, 
     the dissenters, like the Board majority, had access both to 
     the publicly available materials that might have been 
     relevant to the Board inquiry--such as job descriptions for 
     various positions in Congress--and to legal and factual 
     analyses generated by Board appointees.
       To be sure, the Board would not approve ex parte 
     factfinding contacts between Board members and interested 
     persons in Congress during the rulemaking period in order to 
     preserve the integrity of its rulemaking process. But neither 
     the commenters nor the dissenting Board members have 
     suggested even one additional fact that should have been 
     considered by the Board. Accordingly, the dissent's attack on 
     the Board's processes merely reflects the dissent's 
     unhappiness with the Board's substantive determination. But, 
     it is both wrong and unjust to accuse the Board of failing to 
     engage in an appropriate process simply because the 
     Board ultimately disagreed with those advocating 
     substantial exclusions from coverage under section 
     220(e)(1)(B).
       The dissent's attack on the substance of the Board's 
     conclusion is similarly misguided. It makes no attempt to 
     ground itself in law, and, in fact, ignores fundamental 
     principles of statutory interpretation: First, in 
     interpreting a statute one looks initially and principally to 
     its language; here the statute authorizes exclusions from 
     coverage only when ``required'' by the statutory criteria. 
     Second, in interpreting a statute, the most relevant 
     legislative history is that addressing the particular 
     provision at issue; here what legislative history there is 
     acknowledges that the substitution of chapter 71 for the 
     National Labor Relations Act ensured the elimination of 
     perceived problems with permitting employee organization in 
     Congress and reveals that section 220(e)(1)(B) was inserted 
     only to make that assurance doubly sure and not as a 
     ``standardless license to roam far afield from . . . 
     executive branch regulations.'' Third, in interpreting a 
     statute, the broad purposes of legislation illuminate the 
     meaning of particular provisions; here the Act in question 
     was designed to bring Congress under the same laws that it 
     has imposed upon private citizens. That purpose has already 
     been diluted by Congress' application to itself of only the 
     limited rights and protections of chapter 71, rather than the 
     broader provisions of the National Labor Relations Act; it 
     would be eviscerated altogether by broad exclusions from 
     coverage of the sort the dissent would endorse.
       Nothing in the comments received or in the independent 
     investigation done by the Board suggests that broad 
     exclusions of employees from the coverage of chapter 71 are 
     ``required'' by conflicts of interest (real or apparent) or 
     by Congress' constitutional responsibilities. As noted in the 
     preamble, chapter 71, by application through the Act, broadly 
     excludes numerous employees from coverage, narrowly confines 
     the permissible arena of collective bargaining, and 
     eliminates most of labor's leverage by barring strikes and 
     slowdowns. There is nothing to fear here, unless one fears 
     the (minimal) requirement that a Congressional employer and 
     its employees communicate about terms and conditions of 
     employment (or, at least those not set by statute) before the 
     employer sets them. And the substantial limits that chapter 
     71 places on employee organization and collective bargaining 
     fully protect Congress' ability to carry out its 
     constitutional responsibilities and entirely prevent any 
     employee conflicts of interest (real or apparent). While we 
     agree with the dissent that Congress is an exceptional 
     institution, that exceptionalism does not warrant a broad 
     exception from the coverage of chapter 71; neither the 
     dissent nor the Board has identified any constitutional 
     reasonability or conflict of interest that chapter 71's 
     provisions do not adequately address.
       The Board's determination that no further regulations are 
     ``required'' under section 220(e)(1)(B) does not render that 
     section a nullity, as the dissent states. Nor does it 
     indicate a ``disdain'' for regulatory resolutions. Section 
     220(e)(1)(B) does not require either regulations or 
     exclusions; it requires a Board inquiry into whether any such 
     exclusions by regulation are necessary. The Board has 
     conducted such an inquiry and has made the statutorily-
     required determination. That determination is the result of 
     principled statutory interpretation, factual investigation, 
     and legal analysis.
       It is, in fact, the dissent's position that would render a 
     portion of the CAA a nullity, because it would insulate 
     Members of Congress from direct experience with employees 
     dignified by labor-relations rights and protections. The 
     Board's position keeps the promise of the Congressional 
     Accountability Act. If the language, legislative history, and 
     fundamental purpose of that Act are to be directly 
     contradicted, that decision is for Congress alone. Such a 
     result cannot lawfully be achieved by Board regulation.
       Member Lorber, joined by Member Hunter, dissenting in part: 
     The Congressional Accountability Act (``CAA'') is one of the 
     most significant legislative achievements of the Congress in 
     many years. While its reach is peculiarly insular, covering 
     only the employees of the Congress and designated 
     instrumentalities of the Congress, its import is global. As 
     the bipartisan leadership of the Congress stated upon the 
     CAA's enactment, this law brings home the promise first 
     offered by Madison in the Federalist Papers that the Congress 
     would experience itself the impact of the [employment] laws 
     it passes and requires of all [employers].
       The CAA established an Office of Compliance within the 
     Congress to operationally carry out the functions of the CAA. 
     The CAA established an independent Board of Directors 
     appointed by the Bi-Partisan Congressional leadership to 
     supervise the operation of the Office, prepare regulations 
     for Congressional approval and act in an appellate capacity 
     for cases adjudicated within the Office of Compliance 
     procedures. As noted by Senator Byrd when the CAA was 
     debated, this tri-partite responsibility of the Board is 
     somewhat unique. In the present rulemaking, the Board is 
     acting in its role as regulator, not adjudicator.
       Pursuant to the CAA, the Board was charged with conducting 
     a detailed review of all existing Executive Branch 
     regulations implementing eight labor laws, deciding which of 
     those regulations were appropriate to be adapted for 
     implementation under the CAA and then drafting them to 
     conform with the requirements of the CAA. For the regulations 
     issued and adopted to date and for most future regulations, 
     the Board engaged or will engage in a notice and comment 
     process which was modeled after similar procedures followed 
     by the Executive Branch. For the regulations adopted prior to 
     the current rulemaking, after the conclusion of the comment 
     period and after its analysis of the comments, the Board 
     promulgated final regulations formally recommended by its 
     statutory appointees and submitted them for the 
     consideration of Congress.
       We believe that this background discussion is appropriate 
     since we are here publishing our dissenting opinion regarding 
     the preamble and recommendation regarding regulations to 
     implement section 220(e)(1)(B) of the Congressional 
     Accountability Act. We note that these proposed regulations 
     also address the statutory inquiry required by section 
     220(e)(1)(A) of the Act which require the Board to modify 
     applicable regulations issued by the Federal Labor Relations 
     Authority for good cause shown, to determine whether the 
     regulations adopted pursuant to section 220(d) will apply to 
     the political offices listed in section 220(e) and 
     regulations required by section 220(e)(2)(H) of the Act which 
     requires the Board to determine if there are other offices 
     which meet the standards of section 220(e)(2) so as to be 
     included in the consideration required by section 
     220(e)(1)(B). We do not dissent from the Board's final 
     resolution of these regulatory issues.
       We do not undertake to issue this first dissent in the 
     Board's regulatory function lightly. At the outset, the Board 
     appropriately decided that would endeavor to avoid dissents 
     on regulatory matters. We felt then, and indeed do so now, 
     that the public interest and the Congressional interest in a 
     responsible implementation of the CAA required that the Board 
     work out, in its own deliberative process, differences in 
     policy or procedure. While the issues there addressed were 
     are some of the most contentious employment issues in the 
     public debates, the Board and staff worked through the issues 
     with a remarkable degree of unity and comity.
       However, in enacting the Congressional Accountability Act, 
     the Congress included one section that differs from all 
     others in requirements of the Board and in its process of 
     adoption. Indeed, unlike any other substantive provision of 
     the CAA, this section finds no parallel in the published 
     regulations of the Executive Branch. Section 220 of the CAA, 
     which adopts for Congressional application the relevant 
     sections of the Federal Labor Relations Act contains within 
     it subsections 220(e)(1)(B) and (e)(2), which deal with the 
     application of the FLRA to the staff of Congressional 
     personal offices, committee offices and the other offices 
     listed in section 220(e)(2), (``the political offices'').
       Section 220(e)(1)(B) of the Act requires the Board to 
     undertake its own study and investigation of the impact of 
     covering the employees in the political offices and determine 
     itself, as a matter of first impression and after its own 
     inquiry, whether such coverage of some of all of those 
     employees would create either a constitutional impediment or 
     a real or apparent conflict of interest such as to require 
     the Board to exempt from coverage, by regulation, some or all 
     of those employees or some or all of the positions employed 
     in the political offices. Due to the speed of enactment, and 
     apparently because the CAA culminated a protracted period of 
     prior debate by previous Congresses on this issue, neither 
     the statute nor any accompanying explanations provided 
     specific guidance as to the method and procedure the Board 
     was to follow in reaching its 220(e)(1)(B) recommendations.
       The section in question contains two separate requirements 
     for the Board. Section 220(e)(1)(A) repeats the standard for 
     all other Executive Branch Regulations that the Board may, 
     for good cause shown, amend the

[[Page H10028]]

     applicable FLRA regulations as applied to the Congress. As 
     previously noted, we join the Board's resolution of this 
     section. However, unique to the CAA, section 220(e)(1)(B) 
     requires of the Board that it independently review the 
     coverage question for the political offices enumerated in 
     section 220(e)(2) in order to determine if the Board should, 
     by regulation, recommend that some or all of the employees of 
     those offices be excluded from coverage. This exclusion from 
     coverage merely means that the Board has determined that 
     certain positions be exempted from inclusion in bargaining 
     units for the statutory reasons set forth in section 
     220(e)(1)(B). The other applicable exemptions found in the 
     FLRA and noted by the majority are unaffected by section 
     220(e)(1)(B). Thus, reference to the applicability of those 
     exemptions may have been necessary to respond to certain 
     commenters but are irrelevant for these purposes. Again, 
     unlike any other regulation proposed by the Board, the 220(e) 
     regulations will not take effect until affirmatively voted on 
     by each House of Congress. It should be noted that 220(d) 
     regulations governing application of the FLRA to 
     Congressional employees not working in the 220(e)(2) 
     political offices are not affected by this enactment 
     requirement. This requirement was necessary in part because 
     there are no comparable Executive Branch regulations which 
     will come into effect in the absence of Congressional action. 
     Thus, the Congress must exercise greater oversight in 
     reviewing these regulations because there is no preexisting 
     regulatory model against which to compare the Board's 
     decision. By requiring this independent analysis, the 
     Congress clearly intended for the Board to investigate these 
     issues a manner different from the passive or limited review 
     as defined by the majority.
       Faced with this novel requirement, the Board attempted to 
     fashion a means of addressing this issue which would continue 
     its practice of ensuring fair, prompt and informed 
     consideration of regulatory issues. The majority adopted as 
     its guide the process heretofore followed by the Board in its 
     previous regulatory actions in the standard notice and 
     comment manner. Its methodology was apparently modeled after 
     its belief that the Administrative Procedure Act (``APA'') is 
     either directly incorporated into the CAA or that the 
     reference to the APA in section 304 binds the Board in a way 
     so as to preclude it functioning in a normal and accepted 
     regulatory manner. Of course, if the majority does not now 
     assert that its analysis is constrained by its restrictive 
     interpretation of the APA, then we are in some doubt about 
     the majority's stated reason for its passive review of 
     written comments and failure to undertake any examination on 
     its own of the issues here before us.
       The Board attempted to frame the 220(e)(1)(B) issue broadly 
     enough to encourage informed comment by the regulated groups. 
     It responded to the comments received by proposing a 
     regulatory scheme (in this case a decision not to issue any 
     220(e)(1)(B) elicited comments on the proposed regulations 
     after which it reached the decision published today. The 
     undersigned members believe, however, that section 
     220(e)(1)(B) charged the Board with a different role. We 
     believe that the Board had the obligation to direct its staff 
     and that the staff itself with independent obligations to 
     each respective House of Congress had to undertake a more 
     involved role. We believe that the uniqueness of this 
     statutory provision required the Board to be proactive in its 
     approach and analysis. Indeed by its very inclusion in the 
     statute, and the requirement that the Congress affirmatively 
     approve of its resolution, section 220(e)(1)(B) indicated a 
     concern on behalf of the entire Congress that potential 
     unionization of the political employees of the political 
     offices in the Congress might pose a constitutional or 
     operational burden (as defined by a conflict or apparent 
     conflict or interest) on the effective operations of the 
     legislative branch. Whatever the individual views of any 
     Board member regarding this section, we believe that our 
     responsibility is to effectuate the intent of the Congress as 
     reflected in the Statute.
       Response to the Board's initial invitation for informed 
     input was not substantial. However, after the Notice of 
     Proposed Rulemaking was published, substantial comments 
     were received. In fact, the Board made special efforts to 
     elicit comments and even briefly extended the comment 
     period to accommodate interested parties who could offer 
     assistance. By the end of the process, the Board did 
     receive comments from most of the interested Congressional 
     organizations. It received only one comment from a labor 
     organization during the ANPR period and a separate letter 
     during the NPR period in which the labor organization 
     indicated that it reaffirmed its opposition to a total 
     exemption of the political offices employees. The quality 
     and informative content of the comments received are 
     subject to differing views. The majority of the Board 
     apparently believes that the comments were not 
     particularly helpful or informative. We can only reach 
     this conclusion by noting that the Board took pains to 
     disclaim the substance and import of the comments received 
     except apparently to credit substantive weight to the sole 
     comment urging that the Board refuse to exercise its 
     authority under 220(e)(1)(B). We believe, on the other 
     hand, that the substantive comments did articulate a 
     cogently expressed concern about the coverage of the 
     employees in question and the disruptive effect a case by 
     case adjudicatory process would have on the activities of 
     the Congress. In any event, the section of the statute 
     here in question requires the Board to move its inquiry 
     beyond the written submissions.
       Unfortunately, the Board did not undertake to make 
     independent inquiry regarding these questions or to engage in 
     inquiry of Congressional employees or informed outside 
     experts. Rather, the Board continued its nearly judicial 
     practice by which it analyzed the comments as submitted and 
     neither requested follow up submissions nor conducted any 
     independent review. Contrary to the majority's opinion, the 
     undersigned believed that the submitted comments were helpful 
     in indicating areas of concern and setting forth possible 
     methods of addressing this issue. And in any event, under the 
     majority's own standards, the lack of any substantive 
     comments supporting the majority's ultimate conclusion is 
     telling.
       In the type of insulated analysis undertaken by the Board, 
     where it relies so heavily upon submitted comments, we find 
     it curious that the majority apparently adopted a position 
     that it was only the obligation of those supporting a full or 
     partial exclusion under section 220(e)(1)(B) to persuade the 
     Board and that those opposing such exclusion can rely upon 
     the Board's own analysis. We believe that the Board was 
     charged with a different task and that it had to reach its 
     own conclusions unanchored to the quality or inclusiveness of 
     the comments. The undersigned relied, in addition, on our own 
     understanding of the responsibilities of the Congress and the 
     various offices designated for consideration, the criteria 
     set forth for decision in the Statute, and our own 
     experience. We believe that the Board's deliberations were 
     hampered by its constricted view of its role and by not 
     undertaking its own investigative process so as to better 
     understand the tasks generic to the various Congressional job 
     titles in the political offices.
       The Board's discussions were detailed and frank. They were 
     carried out in a professional and collegial manner. Various 
     formulations of resolution were put forth by various 
     commenters and the dissenters, including regulatory exemption 
     of all employees, regulatory exemption of employees with 
     designated job titles, regulatory exemption of all employees 
     deemed to be exempt as professional employees under section 
     203 of the Act (the FLSA) and other regulatory formulations. 
     We believed that the statute did not give the Board the 
     discretion to set its analytical standards so high as to make 
     a nullity of section 220(e)(1)(B). Indeed, we believe that 
     the statute legally compelled the Board to undertake efforts 
     to give meaning to the exemptions. The majority has been 
     resistant to any formulation which would apply the 
     220(e)(1)(B) regulatory exemption. The result of the Board's 
     deliberations are found in the proposed 220(e)(1)(B) 
     regulations (or lack thereof) and the explanatory preamble.
       We dissent from this resolution for several reasons. As set 
     forth above, we believe that the Board was charged with a 
     different and unique role. In this case, the credibility of 
     the Board's response to section 220(e)(1)(B) demanded a 
     proactive, investigatory effort under the authority of the 
     Board which we believe simply did not occur. The majority, as 
     expressed in the preamble, relied instead upon past 
     precedents and concepts which we believe inapplicable or at 
     least not determinative of the complex issue raised by 
     220(e)(1)(B). Indeed, as discussed below, its limited view of 
     the leeway regulators have to interpret their statutes so as 
     to give meaning and substance to Congressional enactment mars 
     this entire process. We note, for example, the majority's 
     reliance on In re Department of Labor, Office of the 
     Solicitor and AFGE Local 12, 37 F.L.R.A. 1371 (1990), for its 
     discussion of ``confidential employees'' and for other 
     purposes. While this case may be pertinent if that issue 
     comes before the Board in an adjudicatory context, we fail to 
     see its relevance when the statute commands the Board to view 
     the issue of unionization of politically appointed employees 
     who work in political offices in the legislative body under 
     separate and novel standards. Indeed, as we noted above, the 
     standard statutory exemptions for professional or 
     confidential employees are simply irrelevant to this 
     discussion. Thus, in the case relied upon so heavily by the 
     majority, we would simply note that Labor Department 
     attorneys are, like the vast majority of federal employees 
     covered by the FLRA, career civil servants who must conduct 
     their professional activities in a nonpartisan environment. 
     We believe that the conflict or apparent conflict of interest 
     implicated by each workplace environment and type of employee 
     is different. Politically appointed employees in political 
     offices are under different constraints.
       We note as well that the majority looked to private 
     precedent decided under the National Labor Relations Act for 
     guidance. If the majority believes that NLRB precedent is of 
     assistance to our deliberations, we too would look to 
     applicable NLRB precedent for guidance. Apparently faced with 
     a growing caseload and inconsistent decisions by the 
     appellate courts, the NLRB undertook in 1989 to decide by 
     formal rulemaking the appropriate number of bargaining units 
     for covered health care institutions. At the conclusion of 
     this rulemaking process, the NLRB decided that in the absence 
     of exceptional circumstances defined in the regulation, see 
     29 CFR Sec. 130.30 (1990), eight bargaining units would be 
     appropriate. This rulemaking was challenged on several 
     grounds including citation to Sec. 159(b) of the NLRA

[[Page H10029]]

     which appears to state that the NLRB should establish 
     appropriate bargaining units in each case (emphasis added). 
     However, in American Hospital Association v NLRB 499 US 
     606(1991), a unanimous Supreme Court rejected the view that 
     the NLRB was constrained from deciding any matter on the 
     basis of rulemaking and was compelled to decide every matter 
     on a case by case basis. The Court cited its precedents in 
     other statutory cases for the proposition that a regulatory 
     decision maker ``has the authority to rely on rulemaking to 
     resolve certain issues of general applicability unless 
     Congress clearly expresses an intent to withhold that 
     authority.'' 499 US 606, 612. (citations omitted.) In our 
     statute, the Congress has clearly stated its preference for a 
     regulatory resolution. Indeed, the Court cited with approval 
     the following from Kenneth C. Davis, described by the Court 
     as ``a noted scholar'' on administrative law:
       ``[T]he mandate to decide `in each case' does not prevent 
     the Board from supplanting the original discretionary chaos 
     with some degree of order, and the principal instruments for 
     regularizing the system of deciding `in each case' are 
     classifications, rules, principles, and precedents. Sensible 
     men could not refuse to use such instruments and a sensible 
     Congress would not expect them to (emphasis added.) 499 US at 
     612.''
       We see absolutely nothing in the CAA which nullifies this 
     observation. The majority finds statutory constraints where 
     we find statutory encouragement to act in the manner of ``the 
     sensible man'' as defined by Davis and relied upon by the 
     Supreme Court. To the extent other similar experience is 
     relevant, we would look to the fact that the Board was 
     informed that no state legislative employees are included in 
     unions even in states which otherwise encourage full union 
     participation for their own public employees. Unfortunately, 
     the majority neglected to analyze the relevance of this fact.
       The preamble reflects the majority's belief that it was 
     constrained to act only upon the public rulemaking record. We 
     believe that this analytical model is flawed. The Board cites 
     the reference to the Administrative Procedure Act in section 
     304 of the Act as implicity signaling that the Congress 
     somehow incorporated that Act's procedural requirements into 
     the CAA. The majority's view overstates the statutory 
     reality. Most simply, the statutory reference does not 
     command slavish adherence to a formalistic APA inquiry. While 
     APA procedures are certainly good starting points for any 
     rulemaking process, its intricacies and judicial 
     interpretations cannot be deemed binding on the CAA process. 
     Indeed, with respect to most of our regulatory activities, 
     the statute places additional limitations on the Board's 
     discretion and inquiry far more limited than that permitted 
     by the APA. Particularly with regard to section 220(e)(1)(B), 
     the statute clearly places different responsibilities and 
     procedural requirements on the Board. The majority erred in 
     adopting its passive analytical role.
       But perhaps more importantly, we believe that the Board's 
     understanding of the appropriate response by regulators to 
     Rulemaking obligations is seriously constricted. Rulemaking 
     never required a hermetically sealed process in which the 
     decision makers sit in a judicial like cocoon responding only 
     to the documents and case before them. Since this Board has 
     disparate functions, it must adapt itself to the specific 
     role rather than bind itself to a singular method of 
     operation, particularly when the issue in question calls for 
     a unified decision and guidance rather than the laborious and 
     time consuming process inherent in case by case resolution. 
     And in any event, as it has evolved, modern rulemaking 
     encourages active participation by regulatory decision makers 
     in the regulatory process, including staff fact finding and 
     recommendation, contacts with involved parties so that all 
     information is obtained and other independent means of 
     acquiring the information necessary to reach the best policy 
     decision. There is no requirement that regulatory decision 
     makers be constrained solely by written submissions which are 
     subject to the expository ability of the commenters rather 
     than the actual facts and ideas they wish to convey. Indeed, 
     while every other regulatory responsibility of this Board is 
     limited to merely reviewing existing federal regulations, in 
     this one area the statute demands that the Board act 
     proactively on a clean slate. This the Board did not do.
       We note as well the majority's equation of the Executive 
     Branch functions with the legislative process of the Congress 
     in its citations to past FLRA cases and in its general 
     analysis. We frankly find this comparison to be without any 
     legal or constitutional support. The two branches have wholly 
     different functions. While the Executive Branch has officials 
     who obviously interact with the Congress, their role is not 
     the same as legislative employees who directly support the 
     legislative process in the political offices and institutions 
     of the Congress. Perhaps it should be noted with some 
     emphasis that advocacy before the Congress is not the same as 
     working in the Congress. Thus, it is simply wrong to suggest, 
     as the majority does, that Executive Branch employees perform 
     legislative functions. Or that the Board is somehow bound, in 
     this instance, to mutely follow the holding of one FLRA case 
     which addressed the bargaining unit status of government 
     attorneys employed to interpret and enforce a host of laws 
     directed at employment issues, the vast majority of which 
     have absolutely nothing to do with labor management issues. 
     The issue before us requires a sufficient knowledge of 
     Congressional staff functions, responsibilities and 
     relationships so that the statutorily required determination 
     will be meaningful.
       We wish to comment on the majority's apparent reluctance or 
     disdain for at least a partial regulatory resolution of this 
     issue. Case by case adjudication of individual factual issues 
     may well be the best means of assuring procedural due process 
     as well as fundamental fairness to the parties involved. The 
     history (until recently) of labor management enforcement had 
     shown a reluctance for regulatory resolution of labor 
     management issues and opted instead for case by case 
     resolution. However, the decisions by the NLRB and the 
     Supreme Court in the American Hospital Assocation case and 
     more recent efforts by the NLRB to engage in more extensive 
     rulemaking indicates that even in the labor-management arena, 
     in which we find ourselves, there is a recognition that 
     regulatory resolution of global issues requiring resolution 
     is often preferable to time consuming and expensive case by 
     case litigation. We share the concern of some of the 
     commenters that a process of adjudicatory resolution, 
     regardless of the efficient manner in which it may be 
     conducted by the Office of Compliance, is time consuming and 
     subject to delay. To add to this, we note that the Board is a 
     part time body whose members must pursue their professional 
     activities as well as serve in the capacity of Board Member. 
     The Board has justified its refusal to issue advisory 
     opinions on other interpretative matters in part on its 
     resource limitations. We agreed with that decision. We merely 
     think it appropriate that the implications and rationale of 
     that decision be applied to the matter before us.
       Cognizance must also be taken of the fact that the offices 
     and employees at issue here are transient. In some instances, 
     the entire composition of an employing office may change 
     every two years. We understand that employment in the 
     positions at issue is often not considered a career 
     opportunity but rather represents a period in the 
     professional life of such an employee where they devote their 
     energy and ability to a public pursuit before embarking on 
     their private careers. We point out that case by case 
     adjudication of the eligibility of various employees of 
     various employing offices to be included within collective 
     bargaining units may not be resolved until the employee or 
     the office itself is no longer part of Congress. Thus, while 
     the coverage issue is litigated on a case-by-case, employee-
     by-employee basis, final resolution of the underlying 
     representational issue is delayed. In a body such as Congress 
     where time pressures are intense and uneven, the inherent 
     disruption and confusion attendant to such uncertainty is 
     highly unfortunate. We believe that the Congress recognized 
     this dilemma by including section 220(e)(1)(B) in the 
     statute. In addition, we look to the impact on employees in 
     those offices who may nevertheless be eligible to join a 
     union if their positions are otherwise not deemed exempt 
     under whatever formulation and note that their statutory 
     rights will be denied because of the insistence on treating 
     this issue as merely another adjudication.
       We finally must address one argument put forward by the 
     Board that suggests that since Congressional employees are 
     apparently free to join, in their private capacity, whatever 
     organizations they wish such as the Sierra Club, the National 
     Right to Work Committee, or NOW, (but see section 502(a) of 
     the CAA), distinguishing between these activities and 
     union membership or ceding authority to the collective 
     bargaining representative represents an unfair 
     discrimination against unions in violation of the FLRA. 
     While of some obvious surface appeal, this argument is 
     entirely frivolous. We must observe that there is one 
     salient difference between those organizations and the 
     labor representation we are here discussing. The 
     organizations cited by the majority do not represent the 
     employees for the purpose of their employment and working 
     conditions. They have no official status regarding the 
     working relationships and responsibilities of their 
     members. In contrast, the major purpose of labor 
     organizations, aside from their historical and active 
     participation in the political process, is to represent 
     bargaining unit employees with respect to the terms and 
     conditions of their employment as permitted by law. In the 
     case of the FLRA, once a union is the certified bargaining 
     representative, it represents the employee regardless of 
     whether the employee is a member of the union or not. 
     Thus, the reference to other organizations is of 
     absolutely no relevance to issues being decided today and, 
     in fact, raises issues not before us now and not even 
     within the scope of the CAA.
       For at least the reasons set forth above, we must dissent 
     from the Board's decision regarding Section 220(e)(1)(B) 
     regulations and the explanation for that decision set forth 
     in the Preamble to the final regulation. We emphasize that 
     this dissent should not be deemed as precedent for future 
     divisions of the Board. We cannot emphasize enough the unique 
     requirements of section 220(e)(1)(B). Indeed, the statute 
     itself recognizes this distinction by treating employees of 
     the instrumentalities in a wholly different manner than 
     employees of the 220(e)(2) offices. The Board has spent 
     extensive time reviewing this issue. The majority comes to 
     its conclusions backed by its view of the historical 
     treatment of labor management issues and its belief that its 
     scope of review is limited. In short, the Board adopted an 
     unjustified

[[Page H10030]]

     stance regarding its legal authority and self-perceived 
     constraints in the statute. We believe, however, that 
     precedent and our statute command a different treatment. We 
     also believe that the majority ignores the modern 
     developments in regulatory issues. Thus, in view of the 
     explanations offered in the preamble and the decisions 
     reached by the majority, we regretfully believe those 
     decisions to be wrongly considered and wrongly decided.
       We add a brief coda to our dissent to simply respond to our 
     colleagues who apparently feel that their lengthy preamble 
     insufficiently set forth their views. We begin by apologizing 
     to the Congress by burdening it at this extraordinary time in 
     the second session of the 104th Congress with these arcane 
     arguments regarding the meaning of the CAA, or PL 104-1. 
     Indeed it is precisely this time constraint which partially 
     drives our concern over the majority's action. We have no 
     doubt that cannery workers, construction workers or sales 
     persons have time constraints. So do health care workers. The 
     Congress will have less than thirty days to complete this 
     session. Critical public business must be completed. These 
     are the time pressures inherent in the Congress which find 
     little parallel in other workplace environments. We 
     respectfully question whether section 220(e)(2) employees are 
     the same as the aforementioned employees, or indeed Executive 
     Branch employees who must perform their critical public 
     business of administering or enforcing the laws Congress 
     passes over a normal full year time span. To underscore our 
     comments in the dissent, our colleagues surely understand the 
     constitutional difference between Article I employees and 
     Article II employees and the constitutionally different 
     responsibilities assigned to each.
       Our colleagues suggest that we did not read or 
     misunderstood the wealth of materials gathered during the six 
     month period this issue has been before us. While we applaud 
     the majority's acknowledgement now expressed that it must go 
     beyond the submitted comments, we confess not having had the 
     privilege of knowing that these materials existed. But of 
     much more importance, if these materials existed and were of 
     such weight in the majority's consideration, then its own 
     articulately stated view of the statutory obligations of 
     notice and comment should have required that this information 
     be described and listed in the various notices so that the 
     commenters could fairly respond and argue how this 
     information impacted their comments. It wasn't.
       We respectfully submit that our colleagues misconstrue the 
     discussion regarding the American Hospital Association case. 
     Our point was not to laud the NLRB or even our Deputy 
     Executive Director, which we surely do. Rather it was to 
     suggest that the Supreme Court precedent involving both 
     labor-management laws and regulatory flexibility did provide 
     the guidance and legal authority we understand our colleagues 
     to be searching for. We particularly note that the Court 
     there apparently considered the observations of an 
     administrative law scholar regarding the need to impute into 
     every statute establishing regulatory authority the 
     obligation of sensible interpretation as being as of much or 
     even more precedential weight as the prior decisions of that 
     Court.
       Too much has been written on this issue. We hope that the 
     Congress does devote some time to considering the 
     recommendation being sent to it by the Board of the Office of 
     Compliance. If this dissent has some resonance, perhaps the 
     Congress might consider returning it to the Board with some 
     guidance as to its intentions regarding the factors to be 
     considered and methodology to be followed by the Board in 
     reaching its recommendations.


                          ADOPTED REGULATIONS

     Sec. 2472  Specific regulations regarding certain office 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 Office of the Minority 
     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 of the Majority of 
     the Senate, the Office of the Secretary of the Conference of 
     the Minority of the Senate, the Office of the Secretary 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, 
     the Administrative Office of the Sergeant at Arms of the 
     Senate, the Office of the Majority Whip of the House of 
     Representatives, the Office of the Minority Whip of the House 
     of Representatives, the Office of House Employment Counsel, 
     the Immediate Office of the Clerk of the House of 
     Representatives, the Immediate Office of the Chief 
     Administrative Officer of the House of Representatives, the 
     Office of Legislative Computer Systems of the House of 
     Representatives, the Office of Finance of the House of 
     Representatives and the Immediate Office of the Sergeant at 
     Arms of the House of Representatives.

     Sec. 2472.2  Applicant 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 section 
     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.

                          ____________________