[Federal Register Volume 71, Number 197 (Thursday, October 12, 2006)]
[Proposed Rules]
[Pages 60092-60094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16926]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 143

[DOD-2006-OS-0057]
RIN 0790-AH99


DoD Policy on Organizations That Seek To Represent or Organize 
Members of the Armed Forces in Negotiation or Collective Bargaining

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: This part contains uniform Department of Defense policies for 
organizations that seek to represent or organize members of the Armed 
Forces in negotiation or collective bargaining. This updated rule 
contains editorial changes only as required for internal Department of 
Defense mandated reconsideration every 5 years.

DATES: Comments must be received by December 11, 2006.

ADDRESSES: You may submit comments, identified by docket number and or 
RIN number and title, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel Mark Gingras, 
Office of the Deputy Under Secretary of Defense for Program 
Integration, 4000 Defense Pentagon, Washington, DC 20301-4000.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that 32 CFR part 143 is not a significant 
regulatory action. The rule does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Unfunded Mandates Reform Act (Section 202, Pub. L. 104-4)

    It has been certified that this rule does not contain a Federal 
mandate that may result in the expenditure by State, local and tribal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. By its terms, this rule applies to state and local 
governments. It has no impact on ``small entities''.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)''

    It has been certified that this rule does impose reporting or 
recordkeeping requirements under the Paperwork Reduction Act of 1995. 
The reporting and recordkeeping requirements have been submitted to OMB 
for review.

Executive Order 13132, ``Federalism''

    It has been certified that this rule does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 143

    Government employees, Labor management relations, Military 
personnel.

    Accordingly 32 CFR part 143 is proposed to be revised to read as 
follows:

PART 143--DOD POLICY ON ORGANIZATIONS THAT SEEK TO REPRESENT OR 
ORGANIZE MEMBERS OF THE ARMED FORCES IN NEGOTIATION OR COLLECTIVE 
BARGAINING

Sec.
143.1 Purpose.
143.2 Applicability.
143.3 Definitions.
143.4 Policy.
143.5 Prohibited activity.
143.6 Activity not covered by this part.
143.7 Responsibilities.
143.8 Guidelines.


    Authority: 10 U.S.C 801-940; and 10 U.S.C. 976.


Sec.  143.1  Purpose.

    This part provides DoD policies and procedures for organizations 
whose objective is to organize or represent members of the Armed Forces 
of the United States for purposes of negotiating or bargaining about 
terms or conditions of military service. The policies and procedures 
set forth herein

[[Page 60093]]

are designed to promote the readiness of the Armed Forces to defend the 
United States. This part does not modify or diminish the existing 
authority of commanders to control access to, or maintain good order 
and discipline on, military installations; nor does it modify or 
diminish the obligations of commanders and supervisors under 5 U.S.C. 
7101-7135 with respect to organizations representing DoD civilian 
employees.


Sec.  143.2  Applicability.

    (a) The provisions of this part apply to:
    (1) The Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant 
Commands, the Office of the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, and all other 
organizational entities in the Department of Defense (hereafter 
referred collectively as the ``DoD Components'').
    (2) Individuals and groups entering, using, or seeking to enter or 
use military installations.
    (b) This part does not limit the application of the Uniform Code of 
Military Justice in title 10 U.S.C., sections 901-940 or 10 U.S.C. 976 
including the prohibitions and criminal penalties set forth therein 
with respect to matters that are the subject of this part or that are 
beyond its scope.


Sec.  143.3  Definitions.

    (a) Member of the Armed Forces. A member of the Armed Forces who is 
serving on active duty, or a member of a Reserve component while 
performing inactive duty training.
    (b) Military labor organization. Any organization that engages in 
or attempts to engage in:
    (1) Negotiating or bargaining with any civilian officer or 
employee, or with any member of the Armed Forces, on behalf of members 
of the Armed Forces, concerning the terms or conditions of military 
service of such members in the Armed Forces;
    (2) Representing individual members of the Armed Forces before any 
civilian officer or employee, or any member of the Armed Forces, in 
connection with any grievance or complaint of any such member arising 
out of the terms or conditions of military service of such member in 
the Armed Forces; or
    (3) Striking, picketing, marching, demonstrating, or any other 
similar form of concerted action which is directed against the 
Government of the United States and that is intended to induce any 
civilian officer or employee, or any member of the Armed Forces, to:
    (i) Negotiate or bargain with any person concerning the terms or 
conditions of military service of any member of the Armed Forces,
    (ii) Recognize any organization as a representative of individual 
members of the Armed Forces in connection with complaints and 
grievances of such members arising out of the terms or conditions of 
military service of such members in the Armed Forces, or
    (iii) Make any change with respect to the terms or conditions of 
military service of individual members of the Armed Forces.
    (c) Civilian officer or employee. An employee, as defined in 5 
U.S.C. 2105.
    (d) Military installations. Includes installations, reservations, 
facilities, vessels, aircraft, and other property controlled by the 
Department of Defense.
    (e) Negotiation or bargaining. A process whereby a commander or 
supervisor acting on behalf of the United States engages in discussions 
with a member or members of the Armed Forces (purporting to represent 
other such members), or with an individual, group, organization, or 
association purporting to represent such members, for the purpose of 
resolving bilaterally terms or conditions of military service.
    (f) Terms or conditions of military service. Terms or conditions of 
military compensation or duty including but not limited to wages, rates 
of pay, duty hours, assignments, grievances, or disputes.


Sec.  143.4  Policy.

    It is the policy of the United States under Public Law 95-610 that:
    (a) Members of the Armed Forces of the United States must be 
prepared to fight and, if necessary, to die to protect the welfare, 
security, and liberty of the United States and of their fellow 
citizens.
    (b) Discipline and prompt obedience to lawful orders of superior 
officers are essential and time-honored elements of the American 
military tradition and have been reinforced from the earliest articles 
of war by laws and regulations prohibiting conduct detrimental to the 
military chain of command and lawful military authority.
    (c) The processes of conventional collective bargaining and labor-
management negotiation cannot and should not be applied to the 
relationships between members of the Armed Forces and their military 
and civilian superiors.
    (d) Strikes, slowdowns, picketing, and other traditional forms of 
job action have no place in the Armed Forces.
    (e) Unionization of the Armed Forces would be incompatible with the 
military chain of command, would undermine the role, authority, and 
position of the commander, and would impair the morale and readiness of 
the Armed Forces.
    (f) The circumstances that could constitute a threat to the ability 
of the Armed Forces to perform their mission are not comparable to the 
circumstances that could constitute a threat to the ability of Federal 
civilian agencies to perform their functions and should be viewed in 
light of the need for effective performance of duty by each member of 
the Armed Forces.


Sec.  143.5  Prohibited activity.

    (a) Membership and enrollment. (1) A member of the Armed Forces, 
knowing of the activities or objectives of a particular military labor 
organization, may not:
    (i) Join or maintain membership in such organization; or
    (ii) Attempt to enroll any other member of the Armed Forces as a 
member of such organization.
    (2) No person on a military installation, and no member of the 
Armed Forces, may enroll in a military labor organization any member of 
the Armed Forces or solicit or accept dues or fees for such an 
organization from any member of the Armed Forces.
    (b) Negotiation or bargaining. (1) No person on a military 
installation, and no member of the Armed Forces, may negotiate or 
bargain, or attempt through any coercive act to negotiate or bargain, 
with any civilian officer or employee, or any member of the Armed 
Forces, on behalf of members of the Armed Forces, concerning the terms 
or conditions of service of such members.
    (2) No member of the Armed Forces, and no civilian officer or 
employee, may negotiate or bargain on behalf of the United States 
concerning the terms or conditions of military service of members of 
the Armed Forces with any person who represents or purports to 
represent members of the Armed Forces.
    (c) Strikes and other concerted activity. (1) No person on a 
military installation, and no member of the Armed Forces, may organize 
or attempt to organize, or participate in, any strike, picketing, 
march, demonstration, or other similar form of concerted action 
involving members of the Armed Forces that is directed against the 
Government of the United States and that is intended to induce any 
civilian officer or

[[Page 60094]]

employee, or any member of the Armed Forces, to:
    (i) Negotiate or bargain with any person concerning the terms or 
conditions of service of any member of the Armed Forces,
    (ii) Recognize any military labor organization as a representative 
of individual members of the Armed Forces in connection with any 
complaint or grievance of any such member arising out of the terms or 
conditions of service of such member in the Armed Forces, or
    (iii) Make any change with respect to the terms or conditions of 
service in the Armed Forces of individual members of the Armed Forces.
    (2) No person may use any military installation for any meeting, 
march, picketing, demonstration, or other similar activity for the 
purpose of engaging in any activity prohibited by this part.
    (3) No member of the Armed Forces, and no civilian officer or 
employee, may permit or authorize the use of any military installation 
for any meeting, march, picketing, demonstration, or other similar 
activity that is for the purpose of engaging in any activity prohibited 
by this part.
    (d) Representation. A military labor organization may not 
represent, or attempt to represent, any member of the Armed Forces 
before any civilian officer or employee, or any member of the Armed 
Forces, in connection with any grievance or complaint of any such 
member arising out of the terms or conditions of service of such member 
in the Armed Forces.


Sec.  143.6  Activity not covered by this part.

    (a) This part does not limit the right of any member of the Armed 
Forces to:
    (1) Join or maintain membership in any lawful organization or 
association not constituting a ``military labor organization'' as 
defined in Sec.  146.3 of this part;
    (2) Present complaints or grievances concerning the terms or 
conditions of the service of such member in the Armed Forces in 
accordance with established military procedures;
    (3) Seek or receive information or counseling from any source;
    (4) Be represented by counsel in any legal or quasi-legal 
proceeding, in accordance with applicable laws and regulations;
    (5) Petition the Congress for redress of grievances; or
    (6) Take such other administrative action to seek such 
administrative or judicial relief, as is authorized by applicable laws 
and regulations.
    (b) This part does not prevent commanders or supervisors from 
giving consideration to the views of any member of the Armed Forces 
presented individually or as a result of participation on command-
sponsored or authorized advisory councils, committees, or 
organizations.
    (c) This part does not prevent any civilian employed at a military 
installation from joining or being a member of an organization that 
engages in representational activities with respect to terms or 
conditions of civilian employment.


Sec.  143.7  Responsibilities.

    (a) The Heads of DoD Components shall:
    (1) Ensure compliance with this part and with the guidelines 
contained in Sec.  143.8.
    (2) Establish procedures to ensure that any action initiated under 
this part is reported immediately to the Head of the DoD Component 
concerned.
    (3) Report any action initiated under this part immediately to the 
Secretary of Defense.
    (b) The Deputy Under Secretary of Defense (Program Integration) 
shall serve as the administrative point of contact in the Office of the 
Secretary of Defense for all matters relating to this part.


Sec.  143.8  Guidelines.

    The guidelines for making certain factual determinations are as 
follows:
    (a) In determining whether an organization is a military labor 
organization, whether a person is a member of a military labor 
organization, or whether such person or organization is in violation of 
any provision of this part, the history and operation of the 
organization (including its constitution and bylaws, if any) or person 
in question may be evaluated, along with evidence on the conduct 
constituting a prohibited act.
    (b) In determining whether the commission of a prohibited act by a 
person can be imputed to the organization, examples of factors that may 
be considered include: the frequency of such act; the position in the 
organization of persons committing the act; whether the commission of 
such act was known by the leadership of the organization; whether the 
commission of the act was condemned or disavowed by the leadership of 
the organization.
    (c) Any information about persons and organizations not affiliated 
with the Department of Defense needed to make the determinations 
required by this part shall be gathered in strict compliance with the 
provisions of DoD Directive 5200.27 \1\ and shall not be acquired by 
counterintelligence or security investigative personnel. The 
organization itself shall be considered a primary source of 
information.
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    \1\ Copies are available at http://www.dtic.mil/whs/directives.

    Dated: October 5, 2006.
C.R. Choate,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E6-16926 Filed 10-11-06; 8:45 am]
BILLING CODE 5001-06-P