[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41293-41297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20138]
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Rules and Regulations
Federal Register
________________________________________________________________________
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Federal Register / Vol. 61, No. 154 / Thursday, August 8, 1996 /
Rules and Regulations
[[Page 41293]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2470, 2471, 2472, and 2473
Federal Service Impasses Panel-- General; Procedures of the
Panel; Impasses Arising Pursuant to Agency Determinations Not To
Establish or To Terminate Flexible or Compressed Work Schedules;
Miscellaneous Requirements
AGENCY: Federal Service Impasses Panel, FLRA.
ACTION: Final rules.
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SUMMARY: The Federal Service Impasses Panel is amending its
regulations, primarily to take advantage of existing technology and to
make them more easily understood by agencies, labor organizations, and
individuals. The final revisions will allow parties to file requests
for Panel assistance, and other documents, by facsimile transmission
and will generally reorganize and modify those portions of the rules
pertaining to filing and service. A final new section will establish
procedures by which a party to a Panel proceeding may seek to obtain a
subpena. These final revisions will make the regulations clearer and
more user-friendly and will provide quicker access to the Panel's
procedures.
EFFECTIVE DATE: August 18, 1996.
FOR FURTHER INFORMATION CONTACT: Linda A. Lafferty, Executive Director,
Federal Service Impasses Panel, 607 14th Street, NW., Suite 220,
Washington, DC. 20424-0001. Telephone (202) 482-6670.
SUPPLEMENTARY INFORMATION:
Notice and Opportunity to Comment
The Federal Service Impasses Panel proposed revisions to its
regulations to take advantage of existing technology and to make them
more easily understood by agencies, labor organizations, and
individuals. The proposed revisions primarily were for the purpose of
permitting parties to file requests for Panel assistance, and other
documents, by facsimile transmission (Parts 2471 and 2472), and to
establish procedures by which a party to a Panel proceeding may seek to
obtain a subpena (Part 2473). The proposed rules were published in the
Federal Register for notice and comment on June 6, 1996. Formal written
comments were submitted by one agency. The comments have been
considered, and two have prompted revisions to the proposed rules, one
pertaining to Part 2471, the other to Part 2472. These revisions are
noted in the sectional analysis.
Sectional Analysis
The following sectional analysis reflects three revisions to the
proposed changes. The changes involve Part 2471--Procedures of the
Panel (Sec. 2471.6(a)(2)(ii)), Part 2472--Impasses Arising Pursuant to
Agency Determinations Not to Establish or to Terminate Flexible or
Compressed Work Schedules (Sec. 2472.3), and Part 2473--Miscellaneous
Requirements (Sec. 2473.1(f)). For Part 2470--General, and all other
sections of Parts 2471, 2472, and 2473, no sectional analysis is
provided because the final rules are the same as the proposed rules.
Part 2471
Section 2471.6(a)(2)(ii)
Paragraph (a)(2)(ii) lists the most common procedures used by the
Panel, and ends with the sentence: ``Following procedures used by the
Panel, it may issue a report to the parties containing recommendations
for settlement.'' The commenter noted that the sentence was unclear
because it implied that there may be times when the Panel only
recommends methods for settlements instead of issuing a final and
binding decision. If this were the case, because most parties come to
the Panel for a binding decision, the commenter suggested that the
factors considered by the Panel in deciding whether to issue a final
and binding decision or recommendations for settlement should be
spelled out in the regulation. Agreeing that the proposed regulation
may be interpreted to imply that there are times when the Panel's final
action is the issuance of a recommendation for settlement, the final
regulation has been revised to clarify that such recommendations for
settlement, when they occur, are only issued by the Panel prior to
taking final action to resolve the impasse.
Part 2472
Section 2472.3
This section, among other things, updates the Panel's address and
phone number to reflect its current office location. The commenter
recommended that the Panel's facsimile number also be provided. The
final regulation has been revised to include the Panel's facsimile
number.
Part 2473
Section 2473.1(f)
Section 2473.1(f) generally establishes a procedure for the
enforcement of subpenas issued under this part. It has been revised to
be clearer and more consistent with the regulations of the FLRA
pertaining to the same topic (5 CFR 2429.7). It now specifies that,
upon the failure of any person to comply with an issued subpena, the
party on whose behalf the subpena was issued may request the Solicitor
of the FLRA to institute enforcement proceedings in the appropriate
district court, unless to do so would be inconsistent with the law and
policies of the Federal Service Labor-Management Relations Statute.
List of Subjects
5 CFR Part 2470
Government employees, Labor-management relations.
5 CFR Parts 2471, 2472, and 2473
Administrative practice and procedure, Government employees, Labor-
management relations.
For the reasons set forth in the preamble, the Federal Service
Impasses Panel amends 5 CFR Ch. XIV, Parts 2470, 2471, and 2472, and
add 5 CFR Ch. XIV, Part 2473, as follows:
PART 2470--GENERAL
1. The authority citation for Part 2470 continues to read as
follows:
Authority: 5 U.S.C. 7119, 7134.
2. In Sec. 2470.1, a new last sentence is added to read as follows:
[[Page 41294]]
Sec. 2470.1 Purpose.
* * * 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.
PART 2471--PROCEDURES OF THE PANEL
3. The authority citation for part 2471 continues to read as
follows:
Authority: 5 U.S.C. 7119, 7134.
4. Section 2471.2 is revised to read as follows:
Sec. 2471.2 Request form.
A form is available for use by the parties in filing a request for
consideration of an impasse or approval of a binding arbitration
procedure. Copies are available from the Office of the Executive
Director, Federal Service Impasses Panel, 607 14th Street, NW., Suite
220, Washington, DC. 20424-0001. Telephone (202) 482-6670. Use of the
form is not required provided that the request includes all of the
information set forth in Sec. 2471.3.
5. Section 2471.3 is amended by revising paragraphs (a)(1), (b)(1),
and (b)(4) to read as follows:
Sec. 2471.3 Content of request.
(a) * * *
(1) Identification of the parties and individuals authorized to act
on their behalf, including their addresses, telephone numbers, and
facsimile numbers;
* * * * *
(b) * * *
(1) Identification of the parties and individuals authorized to act
on their behalf, including their addresses, telephone numbers, and
facsimile numbers;
* * * * *
(4) Statement as to whether any of the proposals to be submitted to
the arbitrator contain questions concerning the duty to bargain and a
statement of each party's position concerning such questions; and
* * * * *
6. Section 2471.4 is revised to read as follows:
Sec. 2471.4 Where to file.
Requests to the Panel provided for in this part, and inquiries or
correspondence on the status of impasses or other related matters,
should be addressed to the Executive Director, Federal Service Impasses
Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001.
Telephone (202) 482-6670. Facsimile (202) 482-6674.
7. Section 2471.5 is amended by revising the section heading and
paragraphs (a), (b), (d), and (e) to read as follows:
Sec. 2471.5 Filing and service.
(a) Filing and service of request. (1) Any party submitting a
request for Panel consideration of an impasse or a request for approval
of a binding arbitration procedure shall file an original and one copy
with the Panel. A clean copy may be submitted for the original.
Requests may be submitted in person or by registered mail, certified
mail, regular mail, or private delivery service. Requests may also be
accepted by the Panel if transmitted to the facsimile machine of its
office. A party submitting a request by facsimile shall also file an
original for the Panel's records, but failure to do so shall not affect
the validity of the filing by facsimile, if otherwise proper.
(2) The party submitting the request shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, upon parties not so represented, and upon
any mediation service which may have been utilized. Service upon such
counsel or representative shall constitute service upon the party, but
a copy also shall be transmitted to the party. Service of a request may
be made in person or by registered mail, certified mail, regular mail,
or private delivery service. With the permission of the person
receiving the request, service may be made by facsimile transmission or
by any other agreed-upon method. When the Panel acts on a request from
the Federal Mediation and Conciliation Service or acts on a request
from the Executive Director under Sec. 2471.1(a), it will notify the
parties to the dispute, their counsel of record, if any, and any
mediation service which may have been utilized.
(b) Filing and service of other documents. (1) Any party submitting
a response to, or other document in connection with, a request for
Panel consideration of an impasse or a request for approval of a
binding arbitration procedure shall file an original and one copy with
the Panel. A clean copy may be submitted for the original. Documents
may be submitted to the Panel in person or by registered mail,
certified mail, regular mail, or private delivery service. Documents
may also be accepted by the Panel if transmitted to the facsimile
machine of its office, but only with advance permission, which may be
obtained by telephone. A party submitting a document by facsimile shall
also file an original for the Panel's records, but failure to do so
shall not affect the validity of the submission, if otherwise proper.
(2) The party submitting the document shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, or upon parties not so represented.
Service upon such counsel or representative shall constitute service
upon the party, but a copy also shall be transmitted to the party.
Service of a document may be made in person or by registered mail,
certified mail, regular mail, or private delivery service. With the
permission of the person receiving the document, service may be made by
facsimile transmission or by any other agreed-upon method.
* * * * *
(d) The date of service or date served shall be the day when the
matter served, if properly addressed, is deposited in the U.S. mail or
is delivered in person or is deposited with a private delivery service
that will provide a record showing the date the document was tendered
to the delivery service. Where service is made by facsimile
transmission, the date of service shall be the date on which
transmission is received.
(e) Unless otherwise provided by the Panel or its designated
representatives, any document or paper filed with the Panel under this
section, together with any enclosure filed therewith, shall be
typewritten on 8\1/2\ x 11 inch plain white paper, shall have margins
no less than 1 inch on each side, shall be in typeface no smaller than
10 characters per inch, and shall be numbered consecutively.
Nonconforming papers may, at the Panel's discretion, be rejected.
8. Section 2471.6 is amended by revising the section heading and
paragraphs (a)(2) and (b) to read as follows:
Sec. 2471.6 Investigation of request; Panel procedures; approval of
binding arbitration.
(a) * * *
(1) * * *
(2) Assert jurisdiction and
(i) Recommend to the parties procedures for the resolution of the
impasse; and/or
(ii) Assist the parties in resolving the impasse through whatever
methods and procedures the Panel considers appropriate. The procedures
utilized by the Panel may include, but are not limited to: informal
conferences with a Panel designee; factfinding (by a Panel designee or
a private factfinder); written submissions; show cause orders; oral
presentations to the Panel; and arbitration or mediation-arbitration
(by a Panel designee or a private arbitrator). Following procedures
used by the
[[Page 41295]]
Panel, it may issue a report to the parties containing recommendations
for settlement prior to taking final action to resolve the impasse.
(b) Upon receipt of a request for approval of a binding arbitration
procedure, the Panel or its designee will promptly conduct an
investigation, consulting when necessary with the parties and with any
mediation service utilized. After due consideration, the Panel shall
promptly approve or disapprove the request, normally within five (5)
workdays.
9. Sec. 2471.7, the section heading and the introductory text are
revised; (paragraphs (a) and (b), introductory text, are removed, and
paragraphs (b) (1) through (6) are redesignated as (a) through (f)
respectively. The revisions read as follows:
Sec. 2471.7 Preliminary factfinding procedures.
When the Panel determines that a factfinding hearing is necessary
under Sec. 2471.6, and it appoints one or more of its designees to
conduct such hearing, it will issue and serve upon each of the parties
a notice of hearing and a notice of prehearing conference, if any.
* * * * *
10. The section heading of Sec. 2471.8 is revised to read as
follows:
Sec. 2471.8 Conduct of factfinding and other hearings; prehearing
conferences.
* * * * *
11. Section 2471.9 is amended by revising paragraph (a) to read as
follows:
Sec. 2471.9 Report and recommendations.
(a) When a report is issued after a factfinding hearing is
conducted pursuant to Sec. 2471.7 and 2471.8, it normally shall be in
writing and, when authorized by the Panel, shall contain
recommendations.
* * * * *
PART 2472--IMPASSES ARISING PURSUANT TO AGENCY DETERMINATIONS NOT
TO ESTABLISH OR TO TERMINATE FLEXIBLE OR COMPRESSED WORK SCHEDULES
12. The authority citation for part 2472 is revised to read as
follows:
Authority: 5 U.S.C. 6131.
13. In Sec. 2472.2, paragraphs (d) through (n) are redesignated as
paragraphs (e) through (o), new paragraph (d) is added, and newly
redesignated paragraph (j) is revised to read as follows:
Sec. 2472.2 Definitions.
* * * * *
(d) The term duly authorized delegatee means an official who has
been delegated the authority to act for the head of the agency in the
matter concerned.
* * * * *
(j) The term hearing means a factfinding hearing or any other
hearing procedures deemed necessary to accomplish the purpose of 5
U.S.C. 6131.
* * * * *
14. Section 2472.3 is revised to read as follows:
Sec. 2472.3 Request for Panel consideration.
Either party, or the parties jointly, may request the Panel to
resolve an impasse resulting from an agency determination not to
establish or to terminate a flexible or compressed work schedule by
filing a request as hereinafter provided. A form is available for use
by the parties in filing a request with the Panel. Copies are available
from the Office of the Executive Director, Federal Service Impasses
Panel, 607 14th Street, NW., Suite 220, Washington, DC 20424-0001.
Telephone (202) 482-6670. Facsimile (202) 482-6674. Use of the form is
not required provided that the request includes all of the information
set forth in Sec. 2472.4.
15. Section 2472.4 is amended by revising paragraphs (a)(1) and
(a)(6) to read as follows:
Sec. 2472.4 Content of request.
(a) * * *
(1) Identification of the parties and individuals authorized to act
on their behalf, including their addresses, telephone numbers, and
facsimile numbers;
* * * * *
(6) A copy of the agency's written determination and the finding on
which the determination is based, including, in a case where the
finding is made by a duly authorized delegatee, evidence of a specific
delegation of authority to make such a finding; and
* * * * *
16. Section 2472.5 is revised to read as follows:
Sec. 2472.5 Where to file.
Requests to the Panel provided for in these rules, and inquiries or
correspondence on the status of impasses or other related matters,
should be directed to the Executive Director, Federal Service Impasses
Panel, 607 14th Street, NW., Suite 220, Washington, DC 20424-0001.
Telephone (202) 482-6670. Facsimile (202) 482-6674.
Secs. 2472.7 through 2472.12 [Redesignated as Secs. 2472.6 through
2472.11]
17. Section 2472.6 is removed and Sec. 2472.7 through 2472.12 are
redesignated as Sec. 2472.6 through 2472.11, respectively.
18. Newly designated Sec. 2472.6 is amended by revising the section
heading and paragraphs (a), (b), (d), (e), and (f) to read as follows:
Sec. 2472.6 Filing and service.
(a) Filing and service of request. (1) Any party submitting a
request for Panel consideration of an impasse filed pursuant to
Sec. 2472.3 of these rules shall file an original and one copy with the
Panel. A clean copy may be submitted for the original. Requests may be
submitted in person or by registered mail, certified mail, regular
mail, or private delivery service. Requests will also be accepted by
the Panel if transmitted to the facsimile machine of its office. A
party submitting a request by facsimile shall also file an original for
the Panel's records, but failure to do so shall not affect the validity
of the filing by facsimile, if otherwise proper.
(2) The party submitting the request shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, and upon parties not so represented.
Service upon such counsel or representative shall constitute service
upon the party, but a copy also shall be transmitted to the party.
Service of a request may be made in person or by registered mail,
certified mail, regular mail, or private delivery service. With the
permission of the person receiving the request, service may be made by
facsimile transmission or by any other agreed-upon method.
(b) Filing and service of other documents. (1) Any party submitting
a response to, or other document in connection with, a request for
Panel consideration of an impasse filed pursuant to Sec. 2472.3 shall
file an original and one copy with the Panel. A clean copy may be
submitted for the original. Documents may be submitted to the Panel in
person or by registered mail, certified mail, regular mail, or private
delivery service. Documents may also be accepted by the Panel if
transmitted to the facsimile machine of its office, but only with
advance permission, which may be obtained by telephone. A party
submitting a document by facsimile shall also file an original for the
Panel's records, but failure to do so shall not affect the validity of
the submission, if otherwise proper.
(2) The party submitting the document shall serve a copy of such
request upon all counsel of record or
[[Page 41296]]
other designated representative(s) of parties, or upon parties not so
represented. Service upon such counsel or representative shall
constitute service upon the party, but a copy also shall be transmitted
to the party. Service of a document may be made in person or by
registered mail, certified mail, regular mail, or private delivery
service. With the permission of the person receiving the document,
service may be made by facsimile transmission or by any other agreed-
upon method.
* * * * *
(d) The date of service or date served shall be the day when the
matter served, if properly addressed, is deposited in the U.S. mail, is
delivered in person, or is deposited with a private delivery service
that will provide a record showing the date the document was tendered
to the delivery service. Where service is made by facsimile
transmission, the date of service shall be the date on which
transmission is received.
(e) Unless otherwise provided by the Panel or its designated
representatives, any document or paper filed with the Panel under this
part, together with any enclosure filed therewith, shall be typewritten
on 8\1/2\ x 11 inch plain white paper, shall have margins no less than
1 inch on each side, shall be in typeface no smaller than 10 characters
per inch, and shall be numbered consecutively. Nonconforming papers
may, at the Panel's discretion, be rejected.
(f) An impasse arising pursuant to section 6131(c) (2) or (3) of
the Act will not be considered to be filed, and no Panel action will be
taken, until the party initiating the request has complied with
Sec. 2472.4, 2472.5, and 2472.6 of these regulations.
19. Newly designated Sec. 2472.7 is amended by revising paragraph
(b) to read as follows:
Sec. 2472.7 Investigation of request; Panel assistance.
* * * * *
(b) The procedures utilized by the Panel shall afford the parties
an opportunity to present their positions, including supporting
evidence and arguments orally and/or in writing. They include, but are
not limited to: informal conferences with a Panel designee; factfinding
(by a Panel designee or a private factfinder); written submissions;
show cause orders; and oral presentations to the Panel.
20. Newly designated Sec. 2472.8 is revised to read as follows:
Sec. 2472.8 Preliminary hearing procedures.
When the Panel determines that a hearing shall be held, and it
appoints one or more of its designees to conduct such a hearing, it
will issue and serve upon each of the parties a notice of hearing and a
notice of prehearing conference, if any. The notice will state:
(a) The names of the parties to the dispute;
(b) The date, time, place, type, and purpose of the hearing;
(c) The date, time, place, and purpose of the prehearing
conference, if any;
(d) The name of the designated representative(s) appointed by the
Panel;
(e) The issue(s) to be resolved; and
(f) The method, if any, by which the hearing shall be transcribed.
21. Newly designated Sec. 2472.10 is revised to read as follows:
Sec. 2472.10 Reports.
When a report is issued after a hearing conducted pursuant to
Sec. 2472.8 and 2472.9, it normally shall be in writing and shall be
submitted to the Panel, with a copy to each party, within a period
normally not to exceed 30 calendar days after the close of the hearing
and receipt of briefs, if any.
22. In Sec. 2472.11, the introductory text of paragraph (a) and
paragraph (b) are amended to read as follows:
Sec. 2472.11 Final action by the Panel.
(a) After due consideration of the parties' positions, evidence,
and arguments, including any report submitted in accordance with
Sec. 2472.10, the Panel shall take final action in favor of the
agency's determination if:
* * * * *
(b) If the finding on which an agency determination under 5 U.S.C.
6131(c)(2) or (c)(3) is based is not supported by evidence that the
schedule is likely to cause or has caused an adverse agency impact, the
Panel shall take whatever final action is appropriate.
* * * * *
23. Part 2473 is added to read as follows:
Sec. 2473.1 Subpenas.
(a) Any member of the Panel, the Executive Director, or other
person designated by the Panel, may issue subpenas requiring the
attendance and testimony of witnesses and the production of documentary
or other evidence. However, no subpena shall be issued under this
section which requires the disclosure of intramanagement guidance,
advice, counsel, or training within an agency or between an agency and
the Office of Personnel Management.
(b) Where the parties are in agreement that the appearance of
witnesses or the production of documents is necessary, and such
witnesses agree to appear, no such subpena need be sought.
(c) A request for a subpena by any person, as defined in 5 U.S.C.
7103(a)(1), shall be in writing and filed with the Executive Director,
not less than fifteen (15) days prior to the opening of a hearing, or
with the appropriate presiding official(s) during the hearing.
(d) All requests shall name and identify the witnesses or documents
sought, and state the reasons therefor. The Panel, Executive Director,
or any other person designated by the Panel, as appropriate, shall
grant the request upon the determination that the testimony or
documents appear to be necessary to the matters under consideration and
the request describes with sufficient particularity the documents
sought. Service of an approved subpena is the responsibility of the
party on whose behalf the subpena was issued. The subpena shall show on
its face the name and address of the party on whose behalf the subpena
was issued.
(e) Any person served with a subpena who does not intend to comply
shall within five (5) days after the date of service of the subpena
upon such person, petition in writing to revoke the subpena. A copy of
any petition to revoke a subpena shall be served on the party on whose
behalf the subpena was issued. Such petition to revoke, if made prior
to the hearing, and a written statement of service, shall be filed with
the Executive Director. A petition to revoke a subpena filed during the
hearing, and a written statement of service shall be filed with the
appropriate presiding official(s). The Executive Director, or the
appropriate presiding official(s) will, as a matter of course, cause a
copy of the petition to revoke to be served on the party on whose
behalf the subpena was issued, but shall not be deemed to assume
responsibility for such service. The Panel, Executive Director, or any
other person designated by the Panel, as appropriate, shall revoke the
subpena if the evidence the production of which is required does not
relate to any matter under consideration in the proceedings, or the
subpena does not describe with sufficient particularity the evidence
the production of which is required, or if for any other reason
sufficient in law the subpena is invalid. The Panel, Executive
Director, or any other person designated by the Panel, as appropriate,
shall make a simple statement of procedural or other ground for the
ruling on the
[[Page 41297]]
petition to revoke. The petition to revoke, any answer thereto, and any
ruling thereon shall not become part of the official record except upon
the request of the party aggrieved by the ruling.
(f) Upon the failure of any person to comply with a subpena issued,
and upon the request of the party on whose behalf the subpena was
issued, the Solicitor of the FLRA shall, on behalf of such party,
institute proceedings in the appropriate district court for the
enforcement thereof, unless to do so would be inconsistent with law and
the policies of the Federal Service Labor-Management Relations Statute.
The Solicitor of the FLRA shall not be deemed thereby to have assumed
responsibility for the effective prosecution of the same before the
court thereafter.
(g) All papers submitted to the Executive Director under this
section shall be filed in duplicate, along with a statement of service
showing that a copy has been served on the other party to the dispute.
(h)(1) Witnesses (whether appearing voluntarily or under a subpena)
shall be paid the fee and mileage allowances which are paid subpenaed
witnesses in the courts of the United States: Provided, that any
witness who is employed by the Federal Government shall not be entitled
to receive witness fees in addition to compensation received in
conjunction with official time granted for such participation,
including necessary travel time, as occurs during the employee's
regular work hours and when the employee would otherwise be in a work
or paid leave status.
(2) Witness fees and mileage allowances shall be paid by the party
at whose instance the witnesses appear except when the witness receives
compensation in conjunction with official time as described in
paragraph (h)(1) of this section.
(5 U.S.C. 7119, 7134).
Dated: August 2, 1996.
Linda A. Lafferty,
Executive Director, Federal Service Impasses Panel.
[FR Doc. 96-20138 Filed 8-7-96; 8:45 am]
BILLING CODE 6727-01-P
