[Federal Register Volume 61, Number 124 (Wednesday, June 26, 1996)]
[Rules and Regulations]
[Pages 32913-32917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16215]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 /
Rules and Regulations
[[Page 32913]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 251
RIN 3206-AG38
Agency Relationships With Organizations Representing Federal
Employees and Other Organizations
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations governing agency relations with managerial, supervisory,
professional, and other organizations that are not labor organizations.
These regulations are being issued as part of the implementation of the
Federal Personnel Manual (FPM) sunset. The regulations incorporate
certain provisions that existed in former FPM chapters 251 and 252.
EFFECTIVE DATE: July 26, 1996.
FOR FURTHER INFORMATION CONTACT:
Hal Fibish, (202) 606-1170.
SUPPLEMENTARY INFORMATION: OPM published for comment in the Federal
Register on October 2, 1995, at 60 FR 51371-51373, proposed regulations
on agency relationships with organizations representing Federal
employees and other organizations (hereinafter sometimes referred to as
non-labor organizations). A total of 19 comments and/or suggestions
were received: 7 from agencies, 2 from unions, 9 from various non-labor
organizations, and 1 from an individual. With the exceptions noted
below, the comments generally supported the proposed regulation.
One union was opposed to publication of the regulation to the
extent that it applies to non-supervisors, because it believes it would
be impossible for agency representatives to distinguish between the
statutory duties the agency owes unions holding exclusive recognition
regarding conditions of employment of unit employees and communications
with non-labor organizations on other matters of interest to those
organizations. OPM disagrees. The former FPM policies on relationships
with non-labor organizations, which these regulations reinstate, were
in effect for many years and OPM is unaware of any evidence that during
that time agencies were unable to deal with non-labor organizations on
matters of interest to them without compromising duties owed unions
holding exclusive recognition.
Another union challenged OPM's authority to issue its proposed
regulation, claiming that it went beyond the limitations of section 7
of Executive Order 11491 when it expressly referred to managerial
employees in the discussion of the requirement that agencies establish
consultative relationships with associations whose membership is
primarily supervisory and/or managerial. OPM disagrees. It is clear
from the Study Committee Report and Recommendations of August 1969 that
former section 7(e) of Executive Order 11491, in requiring agencies to
establish a system for intra-management communication and consultation
with its supervisors or associations of supervisors in order to
minimize the potential for friction and conflict within the ranks of
management, was intended to encompass management officials as they,
too, are part of the ranks of management. Moreover, the Study Committee
also recommended that the Civil Service Commission authorize agencies
to enter into dues withholding agreements with associations of
managerial or supervisory employees, and this was reflected in former
section 21(b) of Executive Order 11491 which referred to an
``association of management officials or supervisors'' (emphasis
added). Finally, when sections 7(e) and 21(b) were subsequently deleted
from Executive Order 11491, the basis for such a recommendation by the
Federal Labor Relations Council (FLRC) in January 1975 was that the
Civil Service Commission (CSC) had published guidance for establishing
intramanagement communication and consultation systems required by
section 7(e) of the Order and that FLRC believed it would be more
appropriate that this requirement be dealt with outside the Order. The
CSC guidance to which FLRC referred had been issued in 1971 and section
1-3.a of that guidance referred to ``[a]n association of supervisors
(or other management officials, or both).''
Two agencies thought the proposed regulation too prescriptive in
requiring agencies to establish communication systems with associations
of management officials and/or supervisors and suggested the regulation
be modified to give agencies discretion to establish and maintain such
systems as they see fit. This suggestion is not being adopted. The
requirement of section 251.201 that agencies establish and maintain a
system for intra-management communication and consultation with their
supervisors and managers and to establish consultative relationships
with associations of management officials and/or supervisors do no more
than reinstate the requirements of chapter 251 which, as noted above,
were based on the requirements of section 7(e) of Executive Order
11491. Moreover, agencies have broad discretion in implementing these
requirements. They can, for example, retain the systems they had in
place while FPM chapter 251 was in effect, or they can modify aspects
of those systems, such as membership requirements, in light of their
experiences under the FPM program. Finally, it is to be emphasized that
while agencies are required to communicate and consult with
associations of supervisors and managers, dealings with other non-labor
organizations representing Federal employees are discretionary. In
order to highlight this distinction, we are adding a sentence to
section 251.201(a) that states that dealings with non-labor
organizations that are not associations of management officials and/or
supervisors is discretionary.
The same agency recommended that the proposed regulations give
agencies discretionary authority on the provision of the resources
mentioned in section 251.202(b) This is unnecessary, as this section
clearly states that agencies ``may'' provide such services to the
extent consistent with GSA regulations. One non-labor organization
suggested that the regulation prohibit agencies from refusing meeting
space or any other support to an organization that is
[[Page 32914]]
provided to a comparable organization. OPM is not adopting this
suggestion. The conditions under which various support services may be
provided to various organizations are for the most part governed by
laws and regulations that OPM does not administer. Apart from this, OPM
stands by the view expressed in section 1-3.c(2) of former FPM chapter
252 that ``[t]here is no general requirement that agency-provided
services, space, or other considerations be automatically given to an
organization under this [regulation] simply because they have been
given to a labor organization, or vice versa.''
One agency found insufficient the reminder, in section 251.101(d),
that agency dealings with non-labor organizations may not take on the
character of negotiations or consultations regarding the conditions of
employment of unit employees exclusively represented by labor
organizations. It expressed a concern that agencies, relying on the
proposed regulation, may unintentionally violate the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7101-7135 (1994), by
bypassing exclusive representatives and failing to afford them an
opportunity to be present at formal discussions. It suggested that the
intent of section 251.101(d) would be enhanced if OPM added the
following statement to that section: ``These regulations do not
authorize any actions inconsistent with Chapter 71 of title 5 of the
U.S. Code.''
As is noted above, the proposed regulation does little more than
reinstate an FPM program that has successfully coexisted with the
labor-management relations program for several years. Moreover, in
devising consultation systems and/or revising systems that were in
place under the FPM program, and in dealing with non-labor
organizations, agencies can of course seek the views of their labor
relations officials in order to minimize the risk of violating 5 U.S.C.
7101-7135. Notwithstanding these observations, OPM is adopting this
agency's suggestion and is amending section 251.101(d) to include the
suggested statement.
One agency asked why special treatment is accorded associations of
management officials and/or supervisors. Two non-labor organizations
objected to the distinction in treatment between associations of
management officials and/or supervisors and other non-labor
organizations. One non-labor organization suggested that the
regulations require agencies to consult with organizations other than
associations of management officials and/or supervisors.
The regulations, in mandating consultation with associations of
management officials and/or supervisors but leaving to agency
discretion consultation with other non-labor organizations, merely
reflect a distinction that was made in FPM chapters 251 and 252 which,
in turn, reflected the differences between sections 7(d) and 7(e) of
Executive Order 11491. Moreover, OPM does not think it advisable to
mandate consultations with non-labor organizations that are not
associations of management officials and/or supervisors, partly because
of the concerns expressed by the two labor organizations that commented
on these regulations and by some agencies. An agency should have
discretion in determining whether, and to what extent and under what
conditions, it will consult with non-supervisory, non-managerial
associations because, among other things, of the far greater likelihood
that members of such organizations will also be members of bargaining
units for which labor organizations hold exclusive recognition
regarding their conditions of employment. Supervisors and management
officials, on the other hand, are excluded from bargaining units by 5
U.S.C. 7112(b)(1) and consequently labor organizations, with the
exception of the few units preserved by 5 U.S.C. 7135, may not be their
exclusive representative regarding their conditions of employment.
Several agencies and organizations commented on section 251.101(f),
which advised agency officials, in dealing with representatives of non-
labor organizations, to consult with their designated agency ethics
official for guidance regarding any conflicts of interest that may
arise under 18 U.S.C. 205. Most noted that H.R. 782, a bill to amend 18
U.S.C. 205, passed the House and suggested that the regulations be
amended should the bill become law. One agency suggested that the
regulation contain a provision authorizing employees to represent non-
labor organizations as part of their official duties. One organization,
which disagreed with the Department of Justice's interpretation of 18
U.S.C. 205, took issue with the inclusion of section 251.101(f).
OPM is bound by the Department of Justice's interpretation of 18
U.S.C. 205 and it would be improper for the regulation to authorize
employees to represent non-labor organizations as part of their
official duties. Indeed, it was out of concern that some officials
might misconstrue these regulations as authorizing dealings with
employee representatives of non-labor organizations without regard to
18 U.S.C. 205 as interpreted by the Department of Justice that OPM
included the cautionary note of section 251.101(f). Should a law be
passed making the cautionary note unnecessary, OPM will modify its
regulations.
One agency, two organizations, and one individual suggested that
section 251.102(b)--which excludes from the coverage of this regulation
organizations that discriminate in terms of membership or treatment
because of race, color, religion, sex, national origin, age, or
handicapping condition--include a reference to sexual orientation. OPM
has not adopted this suggestion because regulations which it publishes
with respect to Federal employees should be consistent with Federal
anti-discrimination laws and, therefore, should be limited to
prohibiting discrimination against those individuals or groups of
individuals currently protected under Federal law, i.e., Title VII of
the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.) and
the Age Discrimination Act of 1973, as amended (29 U.S.C. 791 and
794a).
One agency suggested that the introductory clause of section
251.202(a) more closely track the language of the 4th sentence of
section 1-4b of former FPM chapter 252 in the interest of greater
clarity. We agree, and have modified the opening of section 251.201(a)
accordingly. The same agency recommended that the reference to 5 CFR
410 be rewritten to refer to funding constraints. In a similar vein,
another agency suggested we cite the exact provisions of title 41 of
the Code of Federal Regulations bearing on the examples of support
services mentioned in section 251.202(b) and suggested that the
regulations provide agencies with full and unilateral discretionary
authority on provision of such resources. Neither suggestion is being
adopted because the revised introductory language of section 251.202(b)
clearly states that the provision of various support services is at the
discretion of the agency, which perforce must be exercised in
accordance with applicable laws and regulations.
One agency suggested that the reference to Chapter 71 of title 5 of
the U.S. Code in sections 251.101(d), 251.103(b), and 251.103(c) be
modified by adding ``or comparable provisions of other laws'' to
accommodate Federal employees who are covered by other labor-management
relations laws, such
[[Page 32915]]
as 22 U.S.C. 4101-4118. OPM agrees and is modifying those sections
accordingly. The same agency caught a typographical error in the
supplementary information section: the reference to section 251.203 at
the end of the fourth paragraph should have been 251.202. The same
agency also noted that the fourth paragraph in the supplementary
information states that section 251.202 provides a framework for
dealing with organizations that are ``not supervisory or managerial.''
However, the last sentence of that paragraph says that section 251.203
(which should have been 251.202) provides information on support that
may be provided to organizations, thus suggesting that the support
services alluded to in that paragraph do not apply to associations of
management officials and/or supervisors. This was not, of course, the
intent of that paragraph. The reference to ``organizations that are not
supervisory or managerial'' in the third sentence of the fourth
paragraph should have read ``non-labor organizations.'' This agency,
noting that although section 251.103(d) defines ``association of
management officials and/or supervisors,'' section 251.201 refers to
``associations of supervisors and management officials'' and
``association of supervisors or managers'' and suggested we use the
expression ``association of management officials and/or supervisors''
throughout. OPM agrees and the regulation is being changed accordingly.
OPM is also adopting this agency's suggestion that ``or attorneys'' be
added after ``agents'' in the second sentence of section 251.101(f).
Two agencies suggested that the terms ``fiscal responsibility'' and
``democratic principles`` as used in section 251.102(a) be defined.
This suggestion is not being adopted. The requirement that a non-labor
organization subscribe to minimum standards of fiscal responsibility
and employ democratic principles in the nomination and election of
officers derives from section 1-5(4) or FPM chapter 252. These
requirements have been in effect for several years and there is no
evidence that agencies have had problems in applying these common sense
notions. OPM also is not adopting one agency's suggestion that the
parenthetical examples of organizations concerned with special social
interest in section 251.103(a) also refer to credit unions, employee
recreational and/or fitness associations, and child care associations.
Given that it is in each agency's discretion to determine to what
extent and under what conditions it will deal with organizations
concerned with special social interests, we believe that the
parenthetical examples are unnecessary and are therefore removing them
from the final regulations.
One agency said that there are possible Federal Advisory Committee
Act (FACA) concerns if discussions are held with non-labor organization
members who are not Federal employees. FACA governs the relationship
between agencies and Advisory Committees as defined under 5 U.S.C. app.
2, section 3(2)(C). OPM notes that under GSA regulations, 41 CFR Part
101-6, there are certain meetings and groups that include Federal and
non-Federal members that are not subject to FACA requirements. Agencies
are advised to consult with their Committee Management officers to
determine whether FACA would apply in any given instance. OPM is
adopting this agency's suggestion that the reference to ``strike'' at
the end of the section 251.102 include reference to ``work stoppage or
slowdown.'' We are also adopting this agency's suggestion that section
251.103(a) refer to groups representing minorities, women or persons
with disabilities in connection with the agencies' EEO programs and
action plans.
One non-labor organization suggested that section 251.201(a) drop
the requirement that associations of management officials and/or
supervisors have sufficient agency membership to assure a worthwhile
dialogue with executive management. We are not adopting this suggestion
because membership is a meaningful and objective indicator of employee
interest in and support of an association. However, it is for each
agency to determine what membership requirements it will establish as a
condition for establishing consultative relationships.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it will only
affect Federal Government employees and non-labor organizations
representing such employees.
List of Subjects in 5 CFR Part 251
Government employees.
Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is adding Part 251 as follows:
1. Part 251 is added to read as follows:
PART 251--AGENCY RELATIONSHIPS WITH ORGANIZATIONS REPRESENTING
FEDERAL EMPLOYEES AND OTHER ORGANIZATIONS
Subpart A--General Provisions
Sec.
251.101 Introduction.
251.102 Coverage.
251.103 Definitions.
Subpart B--Relationships With Organizations Representing Federal
Employees and Other Organizations
251.201 Associations of management officials and/or supervisors.
251.202 Agency support to organizations representing Federal
employees and other organizations.
Subpart C--Dues Withholding
251.301 Associations of management officials and/or supervisors.
251.302 All other organizations.
Authority: 5 U.S.C. 1104; 5 U.S.C. Chap 7; 5 U.S.C. 7135; 5
U.S.C. 7301; and E.O. 11491.
Subpart A--General Provisions
Sec. 251.101 Introduction.
(a) The regulations in this part apply to all Federal executive
branch departments and agencies and their officers and employees.
(b) This part provides a framework for consulting and communicating
with non-labor organizations representing Federal employees and with
other organizations on matters related to agency operations and
personnel management.
(c) The purposes of consultation and communication are: the
improvement of agency operations, personnel management, and employee
effectiveness; the exchange of information (e.g., ideas, opinions, and
proposals); and the establishment of policies that best serve the
public interest in accomplishing the mission of the agency.
(d) An agency's consultation and communication with organizations
representing Federal employees and with other organizations under this
part may not take on the character of negotiations or consultations
regarding conditions of employment of bargaining unit employees, which
is reserved exclusively to labor organizations as provided for in
Chapter 71 of title 5 of the U.S. Code or comparable provisions of
other laws. The regulations in this
[[Page 32916]]
part do not authorize any actions inconsistent with Chapter 71 of the
U.S. Code or comparable provisions of other laws.
(e) The head of a Federal agency may determine that it is in the
interest of the agency to consult, from time to time, with
organizations other than labor organizations and associations of
management officials and/or supervisors to the extent permitted by law.
Under section 7(d)(2) and (3) of Executive Order 11491, as amended,
recognition of a labor organization does not preclude an agency from
consulting or dealing with a veterans organization, or with a
religious, social, fraternal, professional, or other lawful
association, not qualified as a labor organization, with respect to
matters or policies which involve individual members of the
organization or association or are of particular applicability to it or
its members.
(f) Federal employees, including management officials and
supervisors, may communicate with any Federal agency, officer, or other
Federal entity on the employee's own behalf. However, Federal employees
should be aware that 18 U.S.C. 205, in pertinent part, restricts
Federal employees from acting, other than in the proper discharge of
their official duties, as agents or attorneys for any person or
organization other than a labor organization, before any Federal agency
or other Federal entity in connection with any matter in which the
United States is a party or has a direct and substantial interest.
Agency officials and employees are therefore advised to consult with
their designated agency ethics official for guidance regarding any
conflicts of interest that may arise.
Sec. 251.102 Coverage.
To be covered by this part, an association or organization:
(a) Must be a lawful, nonprofit organization whose constitution and
bylaws indicate that it subscribes to minimum standards of fiscal
responsibility and employs democratic principles in the nomination and
election of officers;
(b) Must not discriminate in terms of membership or treatment
because of race, color, religion, sex, national origin, age, or
handicapping condition;
(c) Must not assist or participate in a strike, work stoppage, or
slowdown against the Government of the United States or any agency
thereof or impose a duty or obligation to conduct, assist, or
participate in such strike, work stoppage, or slowdown; and
(d) Must not advocate the overthrow of the constitutional form of
Government of the United States.
Sec. 251.103 Definitions.
(a) Organization representing Federal employees and other
organizations means an organization other than a labor organization
that can provide information, views, and services which will contribute
to improved agency operations, personnel management, and employee
effectiveness. Such an organization may be an association of Federal
management officials and/or supervisors, a group representing
minorities, women or persons with disabilities in connection with the
agencies' EEO programs and action plans, a professional association, a
civic or consumer group, and organization concerned with special social
interests, and the like.
(b) Association of management officials and/or supervisors means an
association comprised primarily of Federal management officials and/or
supervisors, which is not eligible for recognition under Chapter 71 of
title 5 of the U.S. Code or comparable provisions of other laws, and
which is not affiliated with a labor organization or federation of
labor organizations.
(c) Labor organization means an organization as defined in 5 U.S.C.
7103(a)(4), which is in compliance with 5 U.S.C. 7120, or as defined in
comparable provisions of other laws.
Subpart B--Relationships With Organizations Representing Federal
Employees and Other Organizations
Sec. 251.201 Associations of management officials and/or supervisors.
(a) As part of agency management, supervisors and managers should
be included in the decision-making process and notified of executive-
level decisions on a timely basis. Each agency must establish and
maintain a system for intra-management communication and consultation
with its supervisors and managers. Agencies must also establish
consultative relationships with associations whose membership is
primarily composed of Federal supervisory and/or managerial personnel,
provided that such associations are not affiliated with any labor
organization and that they have sufficient agency membership to assure
a worthwhile dialogue with executive management. Consultative
relationships with other non-labor organizations representing Federal
employees are discretionary.
(b) Consultations should have as their objectives the improvement
of managerial effectiveness and the working conditions of supervisors
and managers, as well as the identification and resolution of problems
affecting agency operations and employees, including supervisors and
managers.
(c) The system of communication and consultation should be designed
so that individual supervisors and managers are able to participate if
they are not affiliated with an association of management officials
and/or supervisors. At the same time, the voluntary joining together of
supervisory and management personnel in groups of associations shall
not be precluded or discouraged.
Sec. 251.202 Agency support to organizations representing Federal
employees and other organizations.
(a) An agency may provide support services to an organization when
the agency determines that such action would benefit the agency's
programs or would be warranted as a service to employees who are
members of the organization and complies with applicable statutes and
regulations. Examples of such support services are as follows:
(1) Permitting employees, in appropriate cases, to use agency
equipment or administrative support services for preparing papers to be
presented at conferences or symposia or published in journals;
(2) Using the authority under 5 U.S.C. 4109 and 4110, as
implemented by 5 CFR part 410, to pay expenses of employees to attend
professional organization meetings when such attendance is for the
purpose of employee development or directly concerned with agency
functions or activities and the agency can derive benefits from
employee attendance at such meetings; and
(3) Following a liberal policy in authorizing excused absence for
other employees who are willing to pay their own expenses to attend a
meeting of a professional association or other organization from which
an agency could derive some benefits.
(b) Agencies may provide Government resources support to
organizations (such as space in Government facilities for meeting
purposes and the use of agency bulletin boards, internal agency mail
distribution systems, electronic bulletin boards and other means of
informing agency employees about meetings and activities) in accordance
with appropriate General Services Administration regulations contained
in title 41 of the Code of Federal Regulations. The mere provision of
such support to any organization is not to be construed as Federal
sponsorship, sanction, or endorsement of the organization or its
activities.
[[Page 32917]]
Subpart C--Dues Withholding
Sec. 251.301 Associations of management officials and/or supervisors.
Dues withholding for associations of management officials and/or
supervisors is covered in 5 CFR 550.331.
Sec. 251.302 All other organizations.
Under 5 CFR 550.311(b), an agency may permit an employee to make an
allotment for any legal purpose deemed appropriate by the head of the
agency. Agencies may provide for the allotment of dues for
organizations representing Federal employees under that section.
[FR Doc. 96-16215 Filed 6-25-96; 8:45 am]
BILLING CODE 6325-01-M
