[Federal Register Volume 63, Number 126 (Wednesday, July 1, 1998)]
[Proposed Rules]
[Pages 35882-35884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17503]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 63, No. 126 / Wednesday, July 1, 1998 / 
Proposed Rules  

[[Page 35882]]


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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2420 through 2423, 2470 and 2472


Regulations Implementing Coverage of Federal Sector Labor 
Relations Laws to the Executive Office of the President

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Labor Relations Authority (FLRA) proposes to 
revise portions of its regulations in order to carry out its 
responsibilities under the Presidential and Executive Office 
Accountability Act. The FLRA was directed to issue regulations 
implementing coverage of the Federal Service Labor-Management Relations 
Statute to the Executive Office of the President no later than October 
1, 1998. The FLRA is also providing an opportunity for all interested 
persons to comment on an issue that has arisen during the consideration 
of these regulatory revisions.

DATES: Comments must be received on or before July 31, 1998.

ADDRESSES: Mail or deliver written comments to the Office of Case 
Control, Federal Labor Relations Authority, 607 14th Street, NW., 
Washington, DC 20424-0001.

FOR FURTHER INFORMATION CONTACT: Peter Constantine, Director, Office of 
Case Control, at the address listed above or by telephone # (202) 482-
6500.

SUPPLEMENTARY INFORMATION:

1. Background

    The Presidential and Executive Office Accountability Act (Pub. L. 
104-331) (the EOAA) was enacted on October 26, 1996, extending the 
coverage of eleven civil rights, labor, and employment laws to the 
Executive Office of the President (EOP). The EOAA applies Chapter 71 of 
Title 5, the Federal Service Labor-Management Relations Statute (the 
Statute), to the EOP and requires the FLRA to promulgate regulations to 
implement the EOAA, no later than October 1, 1998.
    The EOP is comprised of thirteen separate offices: The White House 
Office, the Executive Residence at the White House, the Office of the 
Vice President, the Official Residence of the Vice President, the 
Office of Policy Development, the Council of Economic Advisors, the 
Council on Environmental Quality and Office of Environmental Quality, 
the National Security Council, the Office of Administration, the Office 
of Management and Budget, the Office of National Drug Control Policy, 
the Office of Science and Technology, and the Office of the United 
States Trade Representative.
    According to House Report No. 104-820 (110 Stat. 4375), there are 
roughly 1,700 employees working in the EOP. Less than one-third of 
these are Title 3 employees, who traditionally serve at the discretion 
of the President. The Title 3 employees work in the White House Office, 
the Office of the Vice President, the Office of Policy Development, the 
Executive Residence, and the Official Residence of the Vice President. 
The remaining 1,150 employees working in the other eight EOP offices 
are covered by Title 5, and are civil service employees serving under 
the same laws and regulations as other career executive branch 
employees. These Title 5 employees previously covered by Chapter 71 of 
Title 5, are now covered under the provisions of the EOAA.

2. Requirements placed on the FLRA

    The EOAA contains a general requirement that the FLRA issue 
regulations for the EOP that are the same as the substantive 
regulations promulgated by the FLRA for all other agencies under its 
jurisdiction. This general requirement applies differently, however, 
depending on the EOAA's classification of the EOP offices.
    With respect to the first group of five designated offices (the 
Council on Environmental Quality, the Office of Administration, the 
Office of Science and Technology Policy, the Office of the U.S. Trade 
Representative, and the Official Residence of the Vice President), the 
EOAA requires that the FLRA's regulations be the same as the 
regulations that apply to other agencies, except to the extent that the 
Authority determines for good cause, or to avoid a conflict of interest 
or an appearance of a conflict of interest, that a modification is 
required. For the remaining eight EOP offices, the EOAA requires that 
the FLRA exclude from coverage employees if the FLRA determines that 
exclusion is required because of a conflict of interest, an appearance 
of a conflict of interest, or the President's or Vice President's 
constitutional responsibilities.

3. Prior Federal Register Notice

    The FLRA published a Federal Register notice (63 FR 16141, Apr. 2, 
1998) inviting parties to submit written recommendations on what, if 
any, modifications to the FLRA's current regulations were necessary to 
satisfy the requirements of the EOAA. Specifically, the FLRA asked for 
comments regarding: Appropriate bargaining units under section 7112 of 
the Statute and section 431(d)(1)(B) of the EOAA; appropriate remedies 
for statutory violations based upon section 431(a) of the EOAA and 
sections 7118(a)(7) and 7105(a)(2)(I) of the Statute; possible security 
issues based upon the FLRA's ability to investigate, prosecute, and 
adjudicate cases in which non-public information could be at issue or 
discussed; possible conflict of interest/appearance of conflict of 
interest issues based upon section 431(d)(1)(B)(i) of the EOAA; 
possible constitutional issues based upon section 431(d)(1)(B)(ii) of 
the EOAA; concerns regarding political affiliation; and appropriate 
designation of the ``head of an agency'' under sections 7102(1), 
7114(c)(1)-(3), and 7117(c)(3) of the Statute for each EOP office. No 
comments were received specifically in response to the notice.
    Additionally, the FLRA informally invited comment directly from 
interested persons. In response, one comment noted that during the 
FLRA's investigation, prosecution, and adjudication of cases involving 
the EOP, the FLRA may receive documents that otherwise would not be 
subject to public disclosure through the Freedom of Information Act 
(FOIA). As the FLRA continues to review its regulations to determine 
whether modifications are necessary in light of the EOAA, the FLRA is 
requesting comments on this issue of information disclosure and the 
interests of the EOP. Once the FLRA receives comments, it will consider 
rulemaking on this issue, if necessary.

[[Page 35883]]

4. Summary of Amendments

    As a result of the enactment of the EOAA, a number of amendments to 
the FLRA's regulations are necessary.

A. Section 2420.1 Purpose and scope

    The FLRA proposes to amend this section to reflect the fact that 
the EOAA has made applicable Chapter 71 of Title 5 to the EOP.

B. Section 2421.2 Terms defined in 5 U.S.C. 7103(a)

    The FLRA proposes to amend this section to incorporate applicable 
definitions found in the EOAA.

C. Section 2421.14 Appropriate unit

    The FLRA proposes to amend this section to reflect that when making 
bargaining unit determinations for the eight offices listed in 3 U.S.C. 
431(d)(2), pursuant to section 431 of the EOAA, the Regional Director 
shall exclude employees if it is determined that such exclusion is 
required because of a conflict of interest, an appearance of a conflict 
of interest, or the President's or Vice President's constitutional 
duties.

D. Section 2422.34(b) Rights and obligations during the pendency of 
representation proceedings

    The FLRA proposes to amend this section to include 3 U.S.C. 
431(d)(2) as one of the statutory grounds for a party to take action 
regarding the bargaining unit status of individual employees.

E. Section 2423.41 Action by the Authority; compliance with Authority 
decisions and orders

    The FLRA proposes to amend this section to reflect that, with 
regard to employees covered by section 431 of the EOAA, on finding a 
violation, the Authority may not issue an order of reinstatement.

F. Section 2470.1 Purpose

    The FLRA proposes to amend this section to reflect the fact that 
the EOAA has made applicable chapter 71 of title 5 to the Executive 
Office of the President.

G. Section 2470.2 Definitions

    The FLRA proposes to amend this section to incorporate applicable 
definitions found in the EOAA.

H. Section 2472.1 Purpose

    The FLRA proposes to amend this section to clarify that the 
regulations contained in this part do not apply to employing offices, 
employees, and representatives of those employees, who are subject to 
the provisions of the EOAA.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the FLRA has determined that this regulation, as 
amended, will not have a significant economic impact on a substantial 
number of small entities. The amendments are required so that the FLRA 
can carry out its responsibilities under the EOAA.

Unfunded Mandates Reform Act of 1995

    This rule change will not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000 or more in any one year, and it will not 
significantly or uniquely affect small government. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This action is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act of 1995

    The amended regulations contain no additional information 
collection or record keeping requirement under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Parts 2420, 2421, 2422, 2423, 2470, and 
2472

    Administrative practice and procedure, Government employees, Labor-
management relations.
    For the reasons stated in the preamble, the FLRA proposes to amend 
parts 2420, 2421, 2422, 2423, 2470, and 2472 of chapter XIV, title 5 of 
the Code of Federal Regulations as follows:

PART 2420--PURPOSE AND SCOPE

    1. The authority citation for part 2420 is revised to read as 
follows:

    Authority: 3 U.S.C. 431; 5 U.S.C. 7134.

    2. The introductory text of Sec. 2420.1 is revised to read as 
follows:


Sec. 2420.1  Purpose and scope.

    The regulations contained in this subchapter are designed to 
implement the provisions of chapter 71 of title 5 and, where 
applicable, section 431 of title 3 of the United States Code. They 
prescribe the procedures, basic principles or criteria under which the 
Federal Labor Relations Authority or the General Counsel of the Federal 
Labor Relations Authority, as applicable, will:
* * * * *

PART 2421--MEANING OF TERMS AS USED IN THIS SUBCHAPTER

    1. The authority citation for part 2421 is revised to read as 
follows:

    Authority: 3 U.S.C. 431; 5 U.S.C. 7134.

    2. In Sec. 2421.2, paragraph (a) is revised to read as follows:


Sec. 2421.2  Terms defined in 5 U.S.C. 7103(a); General Counsel; 
Assistant Secretary.

    (a) The terms person, employee, agency, labor organization, dues, 
Authority, Panel, collective bargaining agreement, grievance, 
supervisor, management official, collective bargaining, confidential 
employee, conditions of employment, professional employee, exclusive 
representative, firefighter, and United States, as used herein shall 
have the meanings set forth in 5 U.S.C. 7103(a). The terms covered 
employee, employee, employing office, and agency, when used in 
connection with the Presidential and Executive Office Accountability 
Act, 3 U.S.C. 401 et seq., shall have the meaning set out in 3 U.S.C. 
401(b), 431(b) and (d)(2). Employees who are employed in the eight 
offices listed in 3 U.S.C. 431(d)(2) are excluded from coverage if the 
Authority determines that such exclusion is required because of a 
conflict of interest, an appearance of a conflict of interest, or the 
President's or Vice President's constitutional responsibilities, in 
addition to the exemptions currently set forth in 5 U.S.C. 7103(a).
* * * * *
    3. Section 2421.14 is revised to read as follows:


Sec. 2421.14  Appropriate unit.

    Appropriate unit means that grouping of employees found to be 
appropriate for purposes of exclusive recognition under 5 U.S.C. 7111, 
and for purposes of allotments to representatives under 5 U.S.C. 
7115(c), and consistent with the provisions of 5 U.S.C. 7112. For the 
eight offices listed in 3 U.S.C. 431(d)(2), in determining whether 
particular employees are to be included in an appropriate unit in a 
proceeding under part 2422 of this chapter, the Regional

[[Page 35884]]

Director shall exclude employees if it is determined that such 
exclusion is required because of a conflict of interest or appearance 
of a conflict of interest or because of the President's or Vice 
President's constitutional responsibilities, in addition to the 
standards set out in 5 U.S.C. 7112.

PART 2422--REPRESENTATION PROCEEDINGS

    1. The authority citation for part 2422 is revised to read as 
follows:

    Authority: 3 U.S.C. 431; 5 U.S.C. 7134.

    2. In Sec. 2422.34, paragraph (b) is revised to read as follows:


Sec. 2422.34  Rights and obligations during the pendency of 
representation proceedings.

* * * * *
    (b) Unit status of individual employees. Notwithstanding paragraph 
(a) of this section and except as otherwise prohibited by law, a party 
may take action based on its position regarding the bargaining unit 
status of individual employees, pursuant to 3 U.S.C. 431(d)(2), 5 
U.S.C. 7103(a)(2), and 7112(b) and (c): Provided, however, that its 
actions may be challenged, reviewed, and remedied where appropriate.

PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS

    1. The authority citation for part 2423 is revised to read as 
follows:

    Authority: 3 U.S.C. 431; 5 U.S.C. 7134.

    2. In Sec. 2423.41, paragraph (c) is amended to read as follows:


Sec. 2423.41  Action by the Authority; compliance with Authority 
decisions and orders.

* * * * *
    (c) Authority's order. Upon finding a violation, the Authority 
shall, in accordance with 5 U.S.C. 7118(a)(7), issue an order directing 
the violator, as appropriate, to cease and desist from any unfair labor 
practice, or to take any other action to effectuate the purposes of the 
Federal Service Labor-Management Relations Statute. With regard to 
employees covered by 3 U.S.C. 431, upon finding a violation, the 
Authority's order may not include an order of reinstatement, in 
accordance with 3 U.S.C. 431(a).
* * * * *

PART 2470--GENERAL

    1. The authority citation for part 2470 is revised to read as 
follows:

    Authority: 3 U.S.C. 431; 5 U.S.C. 7119, 7134.

    2. Section 2470.1 is revised to read as follows:


Sec. 2470.1  Purpose.

    The regulations contained in this subchapter are intended to 
implement the provisions of section 7119 of title 5 and, where 
applicable, section 431 of title 3 of the United States Code. They 
prescribe procedures and methods which the Federal Service Impasses 
Panel may utilize in the resolution of negotiation impasses when 
voluntary arrangements, including the services of the Federal Mediation 
and Conciliation Service or any other third-party meditation, fail to 
resolve the disputes. It is the policy of the Panel to encourage labor 
and management to resolve disputes on terms that are mutually agreeable 
at any stage of the Panel's procedures.
    3. In Sec. 2470.2, paragraph (a) is revised to read as follows:


Sec. 2470.2  Definitions.

    (a) The terms agency, labor organization, and conditions of 
employment as used herein shall have the meaning set forth in 5 U.S.C. 
7103(a). When used in connection with 3 U.S.C. 431, the term agency as 
used in the Panel's regulations means an employing office as defined in 
3 U.S.C. 401(a)(4).
* * * * *

PART 2472--IMPASSES ARISING PURSUANT TO AGENCY DETERMINATIONS NOT 
TO ESTABLISH OR TO TERMINATE FLEXIBLE OR COMPRESSED WORK SCHEDULES

    1. The authority citation for part 2472 is revised to read as 
follows:

    Authority: 5 U.S.C. 6131.

    2. Section 2472.1 is revised to read as follows:


Sec. 2472.1  Purpose.

    The regulations contained in this part are intended to implement 
the provisions of section 6131 of title 5 of the United States Code, 
but are not applicable to actions covered by section 431 of title 3 of 
the United States Code. They prescribe procedures and methods which the 
Federal Service Impasses Panel may utilize in the resolution of 
negotiations impasses arising from agency determinations not to 
establish or to terminate flexible and compressed work schedules.

    Dated: June 26, 1998.
Kevin Kopper,
Director, Budget & Finance Division.
[FR Doc. 98-17503 Filed 6-30-98; 8:45 am]
BILLING CODE 6727-01-P