[Federal Register Volume 63, Number 168 (Monday, August 31, 1998)]
[Rules and Regulations]
[Pages 46157-46159]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23336]



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 Rules and Regulations
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  Federal Register / Vol. 63, No. 168 / Monday, August 31, 1998 / Rules 
and Regulations  

[[Page 46157]]


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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2420, 2421, 2422, 2423, and 2470


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

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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SUMMARY: The Chair and Members of the Federal Labor Relations 
Authority, the General Counsel of the Federal Labor Relations 
Authority, and the Federal Service Impasses Panel (FLRA) amend portions 
of their regulations in order to carry out their 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.

EFFECTIVE DATE: October 1, 1998.

ADDRESSES: Written comments received are available for public 
inspection during normal business hours at the Office of Case Control, 
Federal Labor Relations Authority, 607 14th Street, N.W., Washington, 
D.C. 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:

Background

    The Federal Labor Relations Authority proposed revisions to Parts 
2420 through 2423, 2470, and 2472 of its regulations in order to comply 
with its obligations under the Presidential and Executive Office 
Accountability Act (Pub. L. 104-331) (the EOAA). The proposed rule was 
published in the Federal Register and public comment was solicited on 
the proposed changes (63 FR 35882) (July 1, 1998). One commenter 
requested a one-day extension of the July 31, 1998 deadline for filing 
comments, which was granted.
    Prior to proposing the rule, 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. 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 Executive Office of the President (EOP), the FLRA may receive 
documents that otherwise would not be subject to public disclosure 
through the Freedom of Information Act (FOIA). In the Notice of 
Proposed Rulemaking, the FLRA specifically requested comments on this 
issue of information disclosure and the interests of the EOP. No 
comments on this issue were received, and the FLRA is not promulgating 
any rule on this issue at this time.
    As explained in the Notice of Proposed Rulemaking, the EOAA, among 
other things, applies Chapter 71 of Title 5, the Federal Service Labor-
Management Relations Statute (the Statute), to the EOP, which is 
comprised of thirteen separate offices. In explaining the distinction 
between the Title 3 and Title 5 employees in these thirteen separate 
offices, the FLRA listed the Official Residence of the Vice President 
as an office employing Title 3 employees. One commenter noted, however, 
that currently there are no Title 3 employees working at the Official 
Residence of the Vice President.

Sectional Analyses

    Sectional analyses of the amendments and revisions to parts 2420, 
2421, 2422, 2423, and 2470 are as follows:

Part 2420--Purpose and Scope

Section 2420.1

    Final rule as promulgated is the same as proposed rule.

Part 2421--Meaning of Terms as Used in This Subchapter

Section 2421.2

    Final rule as promulgated is the same as proposed rule.

Section 2421.14

    One commenter suggested that the reference to the Regional Director 
was unnecessary in this definitional regulation. This change was 
adopted. Accordingly, except for the deletion of the reference to the 
Regional Director and stylistic editing necessitated by the deletion, 
the final rule as promulgated is the same as proposed rule.

Part 2422--Representation Proceedings

Section 2422.34(b)

    Final rule as promulgated is the same as proposed rule.

Part 2423--Unfair Labor Practice Proceedings

Section 2423.41

    Recognizing that the proposed regulation implements the EOAA's 
requirement that covered employees shall not have a right to 
reinstatement, one commenter stated that other forms of equitable 
relief, such as promotion, would be unconstitutional with respect to 
certain covered employees and should also be addressed in this 
regulation. In considering this comment, the FLRA has determined that 
questions concerning the constitutionality of a particular remedy, like 
questions regarding the relationship between the Statute and other laws 
generally, are better raised to the FLRA on a case-by-case basis. 
Therefore, the final rule as promulgated is the same as proposed rule.

Part 2470--General

Section 2470.1

    Final rule as promulgated is the same as proposed rule.

Section 2470.2

    Final rule as promulgated is the same as proposed rule.

Part 2472--Impasses Arising Pursuant to Agency Determinations Not To 
Establish or To Terminate Flexible or Compressed Work Schedules

    The FLRA proposed to amend this section in order to clarify that 
the regulations contained in this part do not

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apply to employing offices, employees, and representatives of those 
employees, who are subject to the provisions of the EOAA. However, 
because EOP workers are excluded from coverage under the Federal 
Employees Flexible and Compressed Work Schedules Act--the law addressed 
by Part 2472--it is not necessary to further clarify their exclusion 
from coverage in the regulations. Thus, the regulation is not amended 
as proposed.

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 final rule 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 final rule 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 governments. 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 final rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
final 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 final rule contains 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, and 2470

    Administrative practice and procedure, Government employees, Labor-
management relations.

    For the reasons stated in the preamble, the Federal Labor Relations 
Authority amends parts 2420, 2421, 2422, 2423, and 2470 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 paragraph 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 in this 
subchapter 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), and 431(b) and (d)(2). Employees who are 
employed in the eight offices listed in 3 U.S.C. 431(d)(2) shall be 
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. In 
determining an appropriate unit in a proceeding under part 2422 of this 
Chapter, for the eight offices listed in 3 U.S.C. 431(d)(2), employees 
shall be excluded from the unit 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 revised 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

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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 in this subchapter 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 in this subchapter means 
an employing office as defined in 3 U.S.C. 401(a)(4).
* * * * *
    Dated: August 26, 1998.
Solly Thomas,
Executive Director.
[FR Doc. 98-23336 Filed 8-28-98; 8:45 am]
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