[Senate Report 115-167]
[From the U.S. Government Publishing Office]
Calendar No. 236
115th Congress } { Report
SENATE
1st Session } { 115-167
_______________________________________________________________________
TO AMEND TITLE 5, UNITED STATES CODE,
TO REQUIRE THAT THE OFFICE OF
PERSONNEL MANAGEMENT SUBMIT AN
ANNUAL REPORT TO CONGRESS RELATING
TO THE USE OF OFFICIAL TIME BY FEDERAL EMPLOYEES
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 1293
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
October 5, 2017.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
79-010 WASHINGTON : 2017
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana KAMALA D. HARRIS, California
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Courtney J. Allen, Counsel
Margaret E. Daum, Minority Staff Director
Stacia M. Cardille, Minority Chief Counsel
Charles A. Moskowitz, Minority Senior Legislative Counsel
Thomas J.R. Richards, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Calendar No. 236
115th Congress } { Report
SENATE
1st Session } { 115-167
======================================================================
TO AMEND TITLE 5, UNITED STATES CODE, TO REQUIRE THAT THE OFFICE OF
PERSONNEL MANAGEMENT SUBMIT AN ANNUAL REPORT TO CONGRESS RELATING TO
THE USE OF OFFICIAL TIME BY FEDERAL EMPLOYEES
_______
October 5, 2017.--Ordered to be printed
_______
Mr. Johnson, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany H.R. 1293]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 1293), to amend
title 5, United States Code, to require the Office of Personnel
Management to submit an annual report to Congress relating to
the use of official time by Federal employees, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
CONTENTS
Page
I. Purpose and Summary.............................................1
II. Background and Need for the Legislation.........................2
III. Legislative History.............................................6
IV. Section-by-Section Analysis.....................................6
V. Evaluation of Regulatory Impact.................................7
VI. Congressional Budget Office Cost Estimate.......................7
VII. Changes in Existing Law Made by the Act, as Reported............8
I. Purpose and Summary
The purpose of H.R. 1293 is to require the Office of
Personnel Management (OPM) to submit an annual report to
Congress on the use of official time by Federal employees.
II. Background and the Need for Legislation
The Civil Service Reform Act of 1978 (Civil Service Reform
Act), codified the right of Federal employees to organize,
voluntarily join, and participate in labor unions.\1\ The Civil
Service Reform Act requires labor unions with exclusive
representation of a bargaining unit within a Federal agency to
represent all the unit's employees, regardless of the
employees' union membership status.\2\ In consideration of the
possible resources expended by the labor unions to represent
Federal employees who are not members of the union, the Civil
Service Reform Act permits Federal employees to be compensated
under ``official time.''\3\ Official time is when a Federal
employee conducts representational activities for the union
during regular work hours instead of performing regularly
assigned duties.\4\ Employees working on official time are
compensated by the Federal Government at their regular salaries
and benefits while performing representational activities for
the union in lieu of regularly assigned duties.\5\
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\1\Civil Service Reform Act 701, Pub. L. No. 95-454, 92 Stat. 1191
(1978). See also 5 U.S.C. Sec. 71.
\2\5 U.S.C. Sec. 7114(a)(1).
\3\5 U.S.C. Sec. 7131. See also Off. of Personnel Mgmt., Official
Time Usage in the Federal Government: Fiscal Year 2014, 1, available at
https://www.opm.gov/policy-data-oversight/labor-management-relations/
reports-on-official-time/reports/2014-official-time-usage-in-the-
federal-government.pdf.
\4\Id.
\5\S. Gov't Accountability Office, GAO-15-9, Labor Relations
Activities: Actions Needed to Improve Tracking and Reporting of the Use
and Cost of Official Time 1 (Oct. 2014), available at http://
www.gao.gov/assets/670/666619.pdf.
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Management of official time can vary within and between
agencies for a number of reasons. For example, agencies and
unions can negotiate the use of official time at the
department, component, bureau, operating administration,
facility, or local level, and the results of those negotiations
can vary.\6\ Additionally, use of official time must be
authorized by the agency, or otherwise agreed upon between a
manager and his or her employees.\7\
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\6\Id.
\7\5 C.F.R. Sec. 9701.523
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Official time is permitted when Federal employees
participate in collective bargaining agreement negotiations,\8\
in proceedings before the Federal Labor Relations Authority
(FLRA),\9\ and other activities that are deemed ``reasonable,
necessary, and in the public interest''\10\The FLRA has
interpreted reasonable, necessary and in the public interest as
constituting activities such as participation in labor-
management working groups, representation of bargaining unit
employees in meetings with management, negotiation of
contracts, representation of employees in grievances and
disciplinary actions.\11\ Federal agencies develop internal
controls and negotiate provisions in collective bargaining
agreements to monitor the use of official time.\12\
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\8\5 U.S.C. Sec. 7131(a).
\9\ 5 U.S.C. 7131(c).
\10\5 U.S.C. Sec. 7131(d). See also 5 C.F.R. Sec. 9701.523(d).
\11\Off. of Personnel Mgmt., supra note 3 at 2.
\12\Supra note 5 at 23.
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Federal law prohibits the use of official time for internal
union business, ``including the solicitation of membership,
elections of labor organization officials, and collection of
dues.''\13\ However, the FLRA has ruled that official time can
be used by Federal employees to lobby Congress about
legislation concerning the union members' conditions of
employment.\14\
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\13\5 U.S.C. Sec. 7131(b).
\14\Am. Fed'n of Gov't Employees, Local 12, and U.S. Dep't of
Labor, 61 FLRA 40, 209-16 (2005). See also U.S. Dep't of Health and
Human Services, U.S. Social Security Admin., and Am. Fed'n of Gov't
Employees, Local 3231, 11 FLRA 7 (1983); Off. of the Adj. Gen., N.H.
Nat'l Guard, and Granite State Chapter Ass'n of Civilian Technicians,
54 FLRA 301 (1998).
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There is no requirement under law that Federal agencies
have to report on the use of official time by Federal
employees. As a result, agency monitoring and reporting on its
employees' use of official time has been inconsistent and
infrequent since the enactment of the Civil Service Reform
Act.\15\ In 1979, the General Accounting Office, now known as
the Government Accountability Office (GAO), reported that over
70 percent of agency Federal employee units failed to keep
records on the use of official time.\16\ GAO recommended that
the Office of Personnel Management (OPM):
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\15\See U.S. Gov't Accountability Office, supra note 5 at 6-7. See
e.g. U.S. Off. of Personnel Mgmt., Reports on Official Time, available
at https://www.opm.gov/policy-data-oversight/labor-management-
relations/reports-on-official-time/#url=appendix4_2002.
\16\U.S. Gen. Accounting Office, GAO-FPCD-79-77, Inadequate
Recordkeeping on Official Time Used for Representational Functions
(Sept. 17, 1979), available at http://www.gao.gov/assets/130/
127702.pdf.
revise the recordkeeping requirement [for
representational functions] to include all official
time used for collective bargaining negotiations,
direct agency compliance with the recordkeeping
requirement, require agencies to prepare reports on all
official time authorized for this purpose to provide
greater accountability . . . [and] require annual
reports from agencies on [official] time . . .\17\
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\17\Id. at 6.
OPM issued a Federal Personnel Manual letter in 1981
directing Federal agencies to establish a recordkeeping system
to record the use of official time by Federal employees for
union activities.\18\ This OPM letter did not require agencies
to report annually on the use of official time by their
employees.\19\ When the Federal Personnel Manual was abolished
in 1994, the recordkeeping requirements on official time were
rescinded.\20\
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\18\U.S. Gov't Accountability Office, supra note 5 at 6.
\19\Id.
\20\Id.
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GAO reported in 1996 that the total amount and costs of
official time for union activities were unknown and that ``no
reporting requirement exists for agencies to generate
comprehensive data on their support of union activities.''\21\
GAO advised that:
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\21\U.S. Gen. Accounting Office, Federal Labor Relations: Official
Time Used for Union Activities, GAO/T-GGD-96-191, 8, Sept. 11, 1996,
available at http://www.gao.gov/assets/110/106634.pdf.
If decisionmakers hope to resolve the question of the
extent to which federal taxpayers subsidize the
activities of federal employee unions, better data are
needed on (1) the amount and cost of the hours used for
union activities, as well as the number of employees
using those hours; (2) the types of activities covered
by the hours used; and (3) the overall costs of
agencies' support for union activities.\22\
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\22\Id. at 1.
In 1997, the U.S. House of Representatives Committee on
Appropriations directed OPM to report by October 1, 1998, on
the use of official time by Federal agencies for the first six
months of fiscal year 1998.\23\ The House committee requested
that OPM include a description of the benefits and
disadvantages of official time; the specific activities
conducted by Federal employees on official time; the total
number of hours spent on official time; the number of employees
who used official time; the valuation in terms of salary spent
on official time activities; and the valuation of Federal
office space, equipment and other materials provided for
official time activities.\24\
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\23\H. Rep. No. 105-240, at 89-90 (1997).
\24\Id.
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OPM began reporting on the use of official time on a more
regular annual basis after a June 17, 2002, memorandum to all
Federal agencies instructed annual reporting on the use of
official time.\25\ In this memorandum, OPM noted that
``[e]stablishing a clear set of reporting requirements for
official time sends a strong signal that labor and management
understand their joint obligation to use public funds
wisely.''\26\ From 2002 to 2012, OPM collected data from
Federal agencies and issued voluntary annual fiscal year
reports on the use of official time in the Federal
Government.\27\ OPM did not issue a report for fiscal year
2013, but did so for fiscal year 2014.\28\ In early 2015, then-
OPM Director Katherine Archuleta decided to limit the issuance
of an official time report to every two years.\29\
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\25\Memorandum from U.S. Off. of Personnel Mgmt. on Official Time
for Labor-Management Relations (June 17, 2002), available at https://
www.chcoc.gov/content/official-time-labor-management-relations.
\26\Id.
\27\U.S. Off. of Personnel Mgmt., Reports on Official Time,
available at https://www.opm.gov/policy-data-oversight/labor-
management-relations/reports-on-official-time/#url=appendix4_2002.
\28\U.S. Off. of Personnel Mgmt., supra note 3.
\29\Telephone Conversation with Off. of Personnel Management
representative and Committee Majority staff (Sept. 6, 2017).
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There is no requirement regarding the type of information
that must be collected by agencies to inform these annual
reports to OPM;\30\ instead, OPM issues guidance to agencies
for collecting and reporting information on official time
usage.\31\ Under this guidance, Federal agencies report to OPM
on the total number of union employees in the agency, the total
amount of official time hours used by agency employees, an
explanation for any unusually high or low usage of official
time compared to prior years, and the total number of official
time hours used in each of the following categories: term
negotiations, mid-term negotiations, dispute-resolution, and
general labor-management relations.\32\ If an agency reports
corrections to the data provided to OPM's human resource
database system, the agency must also report on the cause of
the data discrepancy, efforts to correct the data, and actions
to improve the quality of the data.\33\
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\30\Id.
\31\U.S. Off. of Personnel Mgmt., Guidance for Reporting Union
Official Time Fiscal Year 2016, 2 (on file with Committee staff).
\32\Id.
\33\Id.
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Once the data is collected and corrected, OPM includes in
its report the total number of official time hours, the rate of
official time per bargaining unit employee, a cost estimate of
official time, and the percentage of change from one year to
the next, as well as a brief narrative explanation for the
changes, for each agency and governmentwide.\34\ In 2014, GAO
questioned the reliability of OPM's cost estimate for official
time usage noting that ``OPM's cost estimate is not reliable
because it lacks assurance of its accuracy and also lacks
adequate documentation.''\35\ OPM produces a cost estimate by
multiplying an agency's total reported official time hours by
the average salary for bargaining unit employees.\36\ GAO used
an alternative methodology to calculate the cost estimate of
official time for six agencies in fiscal year 2012 by
multiplying the official time reported by a union employee by
the actual salary data of the employee.\37\ GAO's alternative
cost estimate for the agencies was $5 million more than OPM's
cost estimate, and led GAO to recommend that OPM ``consider
other approaches to developing its cost estimate.''\38\
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\34\Supra note 27.
\35\Id.
\36\Id. at 16 (emphasis supplied).
\37\Id.
\38\Id. at 18.
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GAO also reported that only four of the ten selected
agencies for the 2014 report collected data on non-payroll
costs of official time, including travel expenses, office
space, telephone service, or other related costs.\39\ One
agency that did collect such non-payroll costs reported
$700,000 in travel and per diem expenses, $1.1 million for
office space, telephones, and supplies, and $200,000 in
interest and arbitration expenses.\40\ Another agency told GAO
that ``it [is] useful to track administrative costs
attributable to official time-union office space and travel
cost-to support agency proposals when negotiating with the
union, and for responding to outside inquiries.''\41\
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\39\Id. at 18.
\40\Id. at 18-19.
\41\Id. at 19.
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GAO made two other recommendations that would help provide
greater transparency and oversight of official time. GAO
recommended that OPM should work with agencies to make better
use of existing human resources data tracking systems for
collecting and reporting on official time and OPM should use
existing governmentwide forums to share best practices among
agencies for monitoring and reporting on the use of official
time.\42\ OPM partially concurred with the three
recommendations noting some limitations of human resources data
systems and limitations on OPM's authority to require other
agencies to take certain actions.\43\
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\42\Id.
\43\Id.
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OPM does not require agencies to report on the number of
union employees that work solely on official time. In the 2014
GAO report, eight of the ten selected Federal agencies reported
having Federal employees who spend 100 percent of their time as
a Federal employee working on official time doing union
activities.\44\ At the Department of Veterans Affairs, 346
union employees worked solely on official time in fiscal year
2015.\45\ The IRS reported 201 employees spending all their
work on official time in 2012.\46\
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\44\Id. at 14.
\45\U.S. Gov't Accountability Office, GAO-17-105, Union Activities:
VA Could Better Track the Amount of Official Time Used by Employees 13
(Jan. 2017), available at https://www.gao.gov/assets/690/682250.pdf.
\46\Letter from Bertrand Tzeng, HQ Disclosure FOIA and Program
Operations, Internal Revenue Service, to William Wilson, Americans for
Limited Government (June 6, 2013), available at http://
algfoiafiles.com/images/5/5b/IRS_Cover_Letter_w_06.06.13.PDF and http:/
/algfoiafiles.com/images/a/ad/IRS_Responsive_Records_w_06.06.13.PDF.
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OPM also does not require agencies to collect or report
with specificity on activities conducted on official time.
Instead, OPM guidance instructs agencies to report the number
of official time hours used within four categories: term
negotiations, mid-term negotiations, dispute-resolution, and
general labor-management relations.\47\ For fiscal year 2014,
78 percent of official time charged by union employees fell
under the general labor-management relations category.\48\
Under OPM's guidance, general labor-management relations
includes ``time used for activities not included in the [other]
three categories.
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\47\U.S. Off. of Personnel Mgmt., supra note 27 at 1.
\48\U.S. Off. of Personnel Mgmt., supra note 3 at 8.
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The Committee believes annual reporting on Federal
employees' use of official time promotes government
transparency and accountability. H.R. 1293 achieves this by
implementing standardized requirements for agencies to report
annually with detailed information about official time. In
these annual reports, Federal agencies, unions, Congress, and
taxpayers will be better informed on the extent to which
official time is used, the estimated amount of taxpayer dollars
spent on the salaries and non-payroll costs for official time,
the number of Federal employees working exclusively on official
time, and the type of activities conducted on official time.
III. Legislative History
H.R. 1293 was introduced on March 1, 2017, by Rep. Dennis
Ross (R-FL-15). The bill as amended was passed by the House of
Representatives on May 24, 2017, by voice vote. The Act was
received in the Senate and referred to the Committee on
Homeland Security and Governmental Affairs on May 25, 2017.
The Committee considered H.R. 1293 at a business meeting on
July 26, 2017. No amendments were offered. The legislation was
passed by voice vote with Senators Johnson, Portman, Lankford,
Daines, McCaskill, Tester, Heitkamp, Peters, Hassan, and Harris
present. Senators Hassan and Harris were recorded as voting
``no'' for the record.
IV. Section-by-Section Analysis of the Act, as Reported
Section 1. Reporting Requirement
This section requires OPM to submit an annual report to
Congress on Federal employees' use of official time no later
than March 31 of each calendar year. Each Federal agency is
required to provide information for each fiscal year to OPM no
later than December 31 of each calendar year so that it can be
included in OPM's annual report.
The annual report must include the following: the total
amount of official time granted to Federal employees; the
average amount of official time expended per bargaining unit
employee; the activities or purposes for which official time
was granted and the effects of the official time on agency
operations; the total amount of compensation provided to
employees in connection with official time activities; the
total amount of official time spent representing non-bargaining
unit employees; the total number of Federal employees who
solely conduct union activities under official time; and the
description of the use of Federal properties for official time
activities. This report is required to provide information
about each Federal agency's use of official time.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this Act and determined
that the Act will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the Act contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Congressional Budget Office Cost Estimate
August 4, 2017.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1293, an act to
amend title 5, United States Code, to require that the Office
of Personnel Management submit an annual report to Congress
relating to the use of official time by federal employees.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Keith Hall.
Enclosure.
H.R. 1293--An act to amend title 5, United States Code, to require that
the Office of Personnel Management submit an annual report to
Congress relating to the use of official time by federal
employees
H.R. 1293 would require the Office of Personnel Management
(OPM) to provide annual reports to the Congress on the use of
official time by federal employees who also serve as union
officers. Official time is paid time off from assigned
government duties to represent a labor union. The act would
require the OPM report to include the purpose for the use of
official time, the amount of compensation paid for official
time, and the locations where the official time duty occurs.
OPM collects some information on the use of official time.
CBO expects that information currently collected would be
combined with other aggregate and estimated information to
prepare the report for the Congress. Thus, CBO estimates that
any additional costs would be less than $500,000 annually; such
spending would be subject to the availability of appropriated
funds.
Enacting H.R. 1293 could affect direct spending by agencies
not funded through annual appropriations; therefore, pay-as-
you-go procedures apply. CBO estimates, however, that any net
increase in spending by those agencies would be negligible.
Enacting the legislation would not affect revenues.
CBO estimates that enacting H.R. 1293 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 1293 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
On March 17, 2017, CBO transmitted a cost estimate for H.R.
1293 as ordered reported by the House Committee on Oversight
and Government Reform on March 8, 2017. The two versions of
legislation are identical and CBO's estimates of the budgetary
effects are the same.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Act, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
* * * * * * *
CHAPTER 71--LABOR-MANAGEMENT RELATIONS
* * * * * * *
SUBCHAPTER IV--ADMINISTRATIVE AND OTHER PROVISIONS
* * * * * * *
SEC. 7131. OFFICIAL TIME.
(a) * * *
* * * * * * *
(e)
(1)
(A) Not later than March 31 of each calendar
year, the Office of Personnel Management, in
consultation with the Office of Management and
Budget, shall submit to each House of Congress
a report on the operation of this section
during the fiscal year last ending before the
start of such calendar year.
(B) Not later than December 31 of each
calendar year, each agency (as defined by
section 7103(a)(3)) shall furnish to the Office
of Personnel Management the information which
such Office requires, with respect to such
agency, for purposes of the report which is
next due under subparagraph (A).
(2) Each report by the Office of Personnel Management
under this subsection shall include, with respect to
the fiscal year described in paragraph (1)(A), at least
the following information:
(A) The total amount of official time granted
to employees.
(B) The average amount of official time
expended per bargaining unit employee.
(C) The specific types of activities or
purposes for which official time was granted,
and the impact which the granting of such
official time for such activities or purposes
had on agency operations.
(D) The total number of employees to whom
official time was granted, and, of that total,
the number who were not engaged in any
activities or purposes except activities or
purposes involving the use of official time.
(E) The total amount of compensation
(including fringe benefits) afforded to
employees in connection with activities or
purposes for which they were granted official
time.
(F) The total amount of official time spent
by employees representing Federal employees who
are not union members in matters authorized by
this chapter.
(G) A description of any room or space
designated at the agency (or its subcomponent)
where official time activities will be
conducted, including the square footage of any
such room or space.
(3) All information included in a report by the
Office of Personnel Management under this subsection
with respect to a fiscal year--
(A) shall be shown both agency-by-agency and
for all agencies; and
(B) shall be accompanied by the corresponding
information (submitted by the Office in its
report under this subsection) for the fiscal
year before the fiscal year to which such
report pertains, together with appropriate
comparisons and analyses.
(4) For purposes of this subsection, the term
``official time'' means any period of time, regardless
of agency nomenclature--
(A) which may be granted to an employee under
this chapter (including a collective bargaining
agreement entered into under this chapter) to
perform representational or consultative
functions; and
(B) during which the employee would otherwise
be in a duty status.''
* * * * * * *
[all]