[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
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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to and codified in the Code of Federal Regulations, which is published
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Federal Register / Vol. 63, No. 168 / Monday, August 31, 1998 / Rules
and Regulations
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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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