For other versions of this document, see http://wikileaks.org/wiki/CRS-RL32255 ------------------------------------------------------------------------------ Order Code RL32255 CRS Report for Congress Received through the CRS Web Homeland Security: Final Regulations for the Department of Homeland Security Human Resources Management System (Subpart E) Compared With Current Law Updated February 9, 2005 Jon O. Shimabukuro Legislative Attorney American Law Division Congressional Research Service ~ The Library of Congress Homeland Security: Final Regulations for the Department of Homeland Security Human Resources Management System (Subpart E) Compared With Current Law Summary On February 1, 2005, final regulations to implement a new human resources management system for the Department of Homeland Security ("DHS") were published. The regulations provide for the organization of the new personnel system, describing, among other topics, the use of pay bands, how jobs will be evaluated, and how pay will be administered. In addition, subpart E of the final regulations defines the department's labor relations system. This report compares the provisions of the final regulations with similar provisions from title 5, chapter 71 of the U.S. Code. Although the collective bargaining rights for employees of DHS will be subject to the new regulations, such rights for most federal employees are otherwise governed by 5 U.S.C. chapter 71. While some of the differences involve simply a change in diction, other changes are more significant. The establishment of a Homeland Security Labor Relations Board that will perform many of the duties otherwise undertaken by the Federal Labor Relations Authority, as well as a redefining of what constitutes certain unfair labor practices are examples of these more noteworthy changes. The regulations take effect on March 3, 2005. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 List of Tables Department of Homeland Security Human Resources Management System Comparison of Current Law and the Final Regulations . . . . . . . . . . . . . . . . . 3 Homeland Security: Final Regulations for the Department of Homeland Security Human Resources Management System (Subpart E) Compared With Current Law Introduction Under 5 U.S.C. § 9701(a), the Secretary of Homeland Security may, in regulations prescribed jointly with the Director of the Office of Personnel Management ("OPM"), "establish, and from time to time adjust, a human resources management system for some or all of the organizational units of the Department of Homeland Security." On February 20, 2004, proposed regulations to implement a new human resources management system for the Department of Homeland Security("DHS") were published.1 DHS and OPM received over 3,800 comments on the proposed regulations during the public comment period.2 Final regulations were published on February 1, 2005. The final regulations provide for the organization of the new personnel system, describing, among other topics, the use of pay bands, how jobs will be evaluated, and how pay will be administered. In addition, subpart E of the final regulations defines the department's labor relations system. Subpart E implements the requirements of 5 U.S.C. § 9701(b) by "ensuring the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to the limitations on negotiability established in law, including the authority that Congress delegated to OPM and DHS to promulgate [the] regulations."3 While the collective bargaining rights of most federal employees are governed by the provisions of title 5, chapter 71 of the U.S. Code, such rights for employees of DHS will be subject to the regulations issued by the department and OPM. Title 5 U.S.C. chapter 71 was not among the provisions that were deemed nonwaivable by the Homeland Security Act.4 This report compares the provisions of the final regulations with similar provisions from 5 U.S.C. chapter 71. While some of the differences involve simply a change in diction, other changes are more significant. 1 Department of Homeland Security Human Resources Management System, 69 Fed. Reg. 8030 (proposed Feb. 20, 2004) (to be codified at 5 C.F.R. pt. 9701). 2 Department of Homeland Security Human Resources Management System, 70 Fed. Reg. 5272, 5275 (Feb. 1, 2005) (to be codified at 5 C.F.R. pt. 9701). 3 69 Fed. Reg. at 8040-41. 4 See 5 U.S.C. § 9701(b)(3), (c). CRS-2 The establishment of a Homeland Security Labor Relations Board that will perform many of the duties otherwise undertaken by the Federal Labor Relations Authority, as well as a redefining of what constitutes certain unfair labor practices are examples of these more noteworthy changes. The regulations take effect on March 3, 2005. CRS-3 Department of Homeland Security Human Resources Management System Comparison of Current Law and the Final Regulations Current Law Final DHS Regulations 5 U.S.C. § 7103(a)(14) - Definition of 5 C.F.R. § 9701.504 - Definition of "Conditions of Employment" "Conditions of Employment" Excludes from the definition policies, Excludes from the definition policies, practices, and matters (1) relating to practices, and matters (1) relating to political activities prohibited under 5 political activities prohibited under 5 U.S.C. chapter 73, subchapter III; (2) U.S.C. chapter 73, subchapter III; (2) relating to the classification of any relating to the classification of any position; or (3) specifically provided for position, including any classification by Federal statute. determinations under subpart B of part 9701; (3) relating to the pay of any position, including any determinations regarding pay or adjustments thereto under subpart C of part 9701; or (4) specifically provided for by federal statute. 5 U.S.C. § 7103(a)(9) - Definition of 5 C.F.R. § 9701.504 - Definition of "Grievance" "Grievance" A "grievance" means any complaint (1) A "grievance" means any complaint (1) by any employee concerning any matter by any employee concerning any matter relating to the employment of the relating to the conditions of employment employee; (2) by any labor organization of the employee; (2) by any labor concerning any matter relating to the organization concerning any matter employment of any employee; or (3) by relating to the conditions of employment any employee, labor organization, or of any employee; or (3) by any employee, agency concerning either the effect or labor organization, or agency concerning interpretation or claim of breach of a either the effect or interpretation or claim collective bargaining agreement, or any of breach of a collective bargaining claimed violation, misinterpretation, or agreement, or any claimed violation, misapplication of any law, rule, or misinterpretation, or misapplication of regulation affecting conditions of any law, rule, or regulation issued for the employment. purpose of affecting conditions of employment (emphasis added). 5 U.S.C. § 7103(a)(11) - Definition of 5 C.F.R. § 9701.504 - Definition of "Management Official" "Management Official" Defines the term to mean an individual Defines the term to mean an individual employed by an agency in a position the employed by the Department in a position duties and responsibilities of which the duties and responsibilities of which require or authorize the individual to require or authorize the individual to formulate, determine, or influence the formulate, determine, or influence the policies of the agency. policies of the Department or who has the authority to recommend such action, if the exercise of the authority is not merely routine or clerical in nature, but requires CRS-4 Current Law Final DHS Regulations the consistent exercise of independent judgment. 5 U.S.C. § 7103(a)(2) - Definition of 5 C.F.R. § 9701.505 - Coverage "Employee" Subpart E of part 9701 applies to eligible The term "employee" means an DHS employees, subject to a individual (1) employed in an agency, or determination by the Secretary or (2) whose employment in an agency has designee under 5 C.F.R. § 9701.102(b). ceased because of any unfair labor DHS employees who would otherwise be practice under 5 U.S.C. § 7116 and who covered by 5 U.S.C. chapter 71 are has not obtained any other regular and eligible for coverage under subpart E. An substantially equivalent employment, as employee whose employment has ceased determined under regulations prescribed because of an unfair labor practice and by the FLRA. who has not obtained any other regular and substantially equivalent employment The term "employee" does not include is also covered. the following: (1) an alien or noncitizen of the U.S. who Subpart E does not apply to the occupies a position outside of the U.S.; following: (2) a member of the uniformed services; (1) an alien or noncitizen of the U.S. who (3) a supervisor or a management official; occupies a position outside of the U.S.; (4) an officer or employee in the Foreign (2) a member of the uniformed services; Service of the U.S. employed in the Dept. (3) a supervisor or management official; of State, the International (4) an individual who participates in a Communication Agency, the Agency for strike in violation of 5 U.S.C. § 7311; International Development, the Dept. of (5) an employee of the U.S. Secret Agriculture, or the Dept. of Commerce; Service, including the U.S. Secret Service or Uniformed Division; (5) any person who participates in a strike (6) an employee of the Transportation in violation of 5 U.S.C. § 7311. Security Administration; or (7) an employee excluded pursuant to 5 C.F.R. § 9701.514 or any other legal authority. No similar provision involving a 5 C.F.R. § 9701.508 - Homeland Security Homeland Security Labor Relations Labor Relations Board Board. Provides for a Homeland Security Labor Relations Board composed of three members, each of whom would be appointed for a term not to exceed three years, except when extended to provide for an orderly transition. The members of the Board are appointed by the Secretary. CRS-5 Current Law Final DHS Regulations No similar provision dealing with a 5 C.F.R. § 9701.509 - Powers and Duties Homeland Security Labor Relations of the Board Board. 5 U.S.C. § 7105 identifies the powers and duties of the Federal Labor The Board is responsible for resolving Relations Authority ("FLRA"), many of issues related to the scope of bargaining which would be held by the Homeland and the duty to bargain in good faith; Security Labor Relations Board. conducting hearings and resolving complaints of unfair labor practices involving the duty to bargain in good faith, and strikes, work stoppages, slowdowns, picketing, or condoning such activities by failing to take action; resolving exceptions to arbitration awards; resolving negotiation impasses; and conducting de novo review of legal conclusions involving all matters within its jurisdiction. The Board may assume jurisdiction over any matter concerning DHS employees that has been submitted to the FLRA pursuant to 5 C.F.R. § 9701.510 if it determines that the matter affects homeland security. The Board may also issue department-wide opinions, which may be appealed in accordance with 5 C.F.R. § 9701.508(h). The Board may consult with the FLRA when issuing such opinions. 5 U.S.C. § 7105 - Powers and Duties of 5 C.F.R. § 9701.510 - Powers and Duties the FLRA of the FLRA The FLRA is authorized to determine Authorizes the FLRA to determine the whether a bargaining unit is appropriate, appropriateness of bargaining units supervise or conduct elections to pursuant to 5 C.F.R. § 9701.514; determine whether a labor organization supervise or conduct elections to has been selected as an exclusive determine whether a labor organization representative by a majority of has been selected as an exclusive employees, prescribe criteria and resolve representative by a majority of issues related to the granting of national employees; and otherwise administer the consultation rights, prescribe criteria and provisions of 5 U.S.C. § 7111 relating to resolve issues related to determining the according of exclusive recognition to compelling need for agency rules or labor organizations, which are modified regulations, resolve issues related to the to apply to this section. duty to bargain in good faith, conduct hearings and resolve complaints of unfair The FLRA may conduct hearings and labor practices, resolve exceptions to resolve complaints of unfair labor arbitration awards, and take such other practices under 5 C.F.R. § 9701.517(a)(1) actions as are necessary and appropriate through (4) and (b)(1) through (4), and in to administer the provisions of 5 U.S.C. accordance with the provisions of 5 chapter 71. U.S.C. § 7118, which is modified to apply to this section. CRS-6 Current Law Final DHS Regulations 5 U.S.C. § 7106 - Management Rights 5 C.F.R. § 9701.511 - Management Rights Management officials retain the authority to determine the mission, budget, Expands existing management rights to organization, number of employees, and include internal security practices of an agency. (1) the ability to determine the numbers, In accordance with applicable laws, types, grades, or occupational clusters management officials also retain the and bands of employees or positions authority to assigned to any organizational (1) hire, assign, direct, layoff, and retain subdivision, work project or tour of duty, employees in the agency, or to suspend, and the technology, methods, and means remove, reduce in grade or pay, or take of performing work; other disciplinary action against such (2) the ability to assign and deploy employees; employees to meet operational demand; (2) assign work, make determinations and with respect to contracting out, and (3) the ability to take whatever other determine the personnel by which agency actions may be necessary to carry out operations shall be conducted; DHS's mission. (3) with respect to filling positions, make selections for appointments from among Management is prohibited from properly ranked and certified candidates bargaining over the exercise of its for promotion or from any other authorities under 5 C.F.R. § 9701.511(a) appropriate source; and or the procedures that it will observe in (4) take whatever actions may be exercising its authorities under 5 C.F.R. § necessary to carry out the agency mission 9701.511(a)(1) and (2) (e.g., assignments, during emergencies. deployments, other actions necessary to carrying out DHS's mission). However, An agency and a labor organization are management will confer with an not precluded from negotiating, at the exclusive representative over such election of the agency, the numbers, procedures. types, and grades of employees or positions assigned to any organizational Management and an exclusive subdivision, work project, or tour of duty, representative will bargain at the level of or on the technology, methods, and recognition, unless otherwise determined means of performing work. by the parties, over appropriate arrangements for employees adversely An agency and a labor organization are affected by the exercise of management's not precluded from negotiating over authority under 5 C.F.R. § 9701.511(a)(3) procedures which management officials (e.g., lay offs, suspensions, removals, of the agency will observe in exercising other disciplinary actions) and the any authority under 5 U.S.C. § 7106 and procedures which management will over appropriate arrangements for observe in exercising its authority. employees adversely affected by the exercise of any authority under the Management and an exclusive section by management officials (so- representative will bargain at the level of called "impact and implementation" recognition, unless otherwise determined bargaining). by the parties, over appropriate arrangements for employees adversely affected by the exercise of any authority under 5 C.F.R. § 9701.511(a)(1) or (2), provided that the effects of such exercise have a significant and substantial impact on the bargaining unit, or on those CRS-7 Current Law Final DHS Regulations employees in that part of the bargaining unit affected by the action or event, and are expected to exceed or have exceeded 60 days. No similar provision. 5 C.F.R. § 9701.512 - Conferring on Procedures For the Exercise of Management Rights Management will confer at the level of recognition with an appropriate exclusive representative to consider its views and recommendations with regard to the procedures management will observe in exercising its rights under 5 C.F.R. § 9701.511(a)(1) and (2) (e.g., assignments, deployments, other actions necessary to carrying out DHS's mission). This section does not require that the parties reach agreement on any covered matter. The parties will meet at reasonable times and places for no longer than 30 days unless they mutually agree to extend this period. Management retains the sole, exclusive, and unreviewable discretion to determine the procedures that it will observe in exercising the authorities set forth in 5 C.F.R. § 9701.511(a)(1) and (2) and to deviate from such procedures, as necessary. 5 U.S.C. § 7112 - Determination of 5 C.F.R. § 9701.514 - Determination of Appropriate Units For Labor Appropriate Units For Labor Organization Representation Organization Representation The FLRA shall determine the The FLRA will determine the appropriateness of any unit. The FLRA appropriateness of any unit. The FLRA will find a unit to be appropriate only if will find a unit to be appropriate only if the determination will ensure a clear and the determination will ensure a clear and identifiable community of interest among identifiable community of interest among the employees in the unit and will the employees in the unit and will promote effective dealings with, and promote effective dealings with, and efficiency of the operations of the agency efficiency of the operations of DHS, involved. consistent with the agency's mission and organizational structure. A bargaining unit may not include the following types of employees: A bargaining unit may not include the (1) management officials or supervisors, following types of employees: except under certain specified (1) management officials or supervisors, circumstances; except as provided under 5 U.S.C. § (2) confidential employees; 7135(a)(2), which is not waived for the (3) employees engaged in personnel work purpose of subpart E of part 9701; in other than a purely clerical capacity; (2) confidential employees; (4) employees engaged in administering (3) employees engaged in personnel work CRS-8 Current Law Final DHS Regulations the provisions of 5 U.S.C. chapter 71; in other than a purely clerical capacity; (5) employees engaged in intelligence, (4) employees engaged in administering counterintelligence, investigative, or the provisions of subpart E; security work which directly affects (5) professional and other employees, national security; or unless a majority of the professional (6) employees primarily engaged in employees vote for inclusion in the unit; investigation or audit functions relating (6) employees engaged in intelligence, to the work of individuals employed by counterintelligence, investigative, or an agency whose duties directly affect the security work which directly affects internal security of the agency, but only if national security; or the functions are undertaken to ensure (7) employees primarily engaged in that the duties are discharged honestly investigation or audit functions relating and with integrity. to the work of individuals employed by DHS whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity. 5 U.S.C. § 7114(a)(2) - Representation 5 C.F.R. § 9701.515(a)(2) - Rights and Duties (Representation at Representation Rights and Duties Discussions and Examinations) (Representation at Discussions and Examinations) An exclusive representative shall be given the opportunity to be represented at An exclusive representative must be any formal discussion between one or given the opportunity to be represented at more representatives of the agency and the following: one or more employees in the unit or their (1) any formal discussion between DHS representatives concerning any grievance representatives and bargaining unit or any personnel policy or practices or employees, the purpose of which is to other general condition of employment. discuss and/or announce new or An exclusive representative shall be substantially changed personnel policies, given the opportunity to be represented at practices, or working conditions; any examination of an employee in the (2) any discussion between one or more unit by a representative of the agency in DHS representatives and one or more connection with an investigation if the bargaining unit employees concerning employee reasonably believes that the any grievance; examination may result in disciplinary (3) any examination of a bargaining unit action against the employee and the employee by a representative of DHS in employee requests representation. connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee and the employee requests such representation; or (4) any discussion between a DHS representative and a bargaining unit employee in connection with a formal complaint of discrimination if the employee, at his or her sole discretion, requests such representation. CRS-9 Current Law Final DHS Regulations 5 U.S.C. § 7114(a)(5) - Representation 5 C.F.R. § 9701.515(a)(5) - Rights and Duties (Grievance or Representation Rights and Duties Appellate Rights) (Grievance or Appellate Rights) The rights of an exclusive representative Except in the case of grievance under 5 U.S.C. § 7114(a) shall not be procedures negotiated under subpart E of construed to preclude an employee from part 9701, the rights of an exclusive (1) being represented by an attorney or representative under this section may not other representative, other than the be construed to preclude an employee exclusive representative, of the from (1) being represented by an attorney employee's own choosing in any or other representative of the employee's grievance or appeal action, or (2) own choosing, other than the exclusive exercising grievance or appellate rights representative, in any grievance or appeal established by law, rule, or regulation, action, or (2) exercising other grievance except in the case of grievance or appeal or appellate rights established by law, procedures negotiated under 5 U.S.C. rule, or regulation. chapter 71. 5 U.S.C. § 7114(b)(4) - Representation 5 C.F.R. § 9701.515(b)(5) - Rights and Duties (Furnishing of Data) Representation Rights and Duties (Furnishing of Data) The duty of an agency and exclusive representative to negotiate in good faith The duty of DHS or appropriate shall include the obligation, in the case of component(s) of the agency and an an agency, to furnish to the exclusive exclusive representative to negotiate in representative or its authorized good faith includes the obligation to representative, upon request and to the furnish information to the exclusive extent not prohibited by law, data which representative or its authorized is normally maintained by the agency in representative, when (1) such information the regular course of business, which is exists, is normally maintained, and is reasonably available and necessary for reasonably available; (2) the exclusive full and proper discussion, understanding, representative has requested such and negotiation of subjects within the information and demonstrated a scope of collective bargaining, and which particularized need for the information in does not constitute guidance, advice, order to perform its representational counsel, or training provided for functions in grievance proceedings or in management officials or supervisors, negotiations; and (3) disclosure is not relating to collective bargaining. prohibited by law. The disclosure of information does not include the following: (1) disclosure prohibited by law or regulations; (2) disclosure of information if adequate alternative means exist for obtaining the requested information, or if proper discussion, understanding, or negotiation of a particular subject within the scope of collective bargaining is possible without recourse to the information; (3) internal DHS guidance, counsel, advice, or training for managers and CRS-10 Current Law Final DHS Regulations supervisors relating to collective bargaining; (4) any disclosure that would compromise DHS's mission, security, or employee safety; and (5) home addresses, telephone numbers, email addresses, or any other information not related to an employee's work. 5 U.S.C. § 7115 - Allotments to 5 C.F.R. § 9701.516 - Allotments to Representatives Representatives If an agency has received from an Similar regulatory language. employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues of the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Subject to 5 U.S.C. § 7115(c)(2), if a petition has been filed with the FLRA by a labor organization alleging that 10 percent of the employees in an appropriate unit have membership in the labor organization, the FLRA shall investigate the petition to determine its validity. 5 U.S.C. § 7116(a)(4) - Unfair Labor 5 C.F.R. § 9701.517(a)(4) - Unfair Labor Practices (Complaints and Petitions) Practices (Complaints and Petitions) It shall be an unfair labor practice for an It is an unfair labor practice for DHS to agency to discipline or otherwise discipline or otherwise discriminate discriminate against an employee because against an employee because the the employee has filed a complaint, employee has filed a complaint or affidavit, or petition, or has given any petition, or has given any information or information or testimony under 5 U.S.C. testimony under subpart E of part 9701. chapter 71. 5 U.S.C. § 7116(a)(5) - Unfair Labor 5 C.F.R. § 9701.517(a)(5) - Unfair Labor Practices (Agency Refusal to Consult or Practices (Agency Refusal to Consult or Negotiate in Good Faith) Negotiate in Good Faith) It shall be an unfair labor practice for an It is an unfair labor practice for DHS to agency to refuse to consult or negotiate in refuse, as determined by the Board, to good faith with a labor organization as consult or negotiate in good faith with a required by 5 U.S.C. chapter 71. labor organization as required by subpart E of part 9701. CRS-11 Current Law Final DHS Regulations 5 U.S.C. § 7116(a)(6) - Unfair Labor 5 C.F.R. § 9701.517(a)(6) - Unfair Labor Practices (Agency Failure or Refusal to Practices (Agency Failure or Refusal to Cooperate in Impasse Procedures and Cooperate in Impasse Procedures and Decisions) Decisions) It shall be an unfair labor practice for an It is an unfair labor practice for DHS to agency to fail or refuse to cooperate in fail or refuse, as determined by the impasse procedures and impasse Board, to cooperate in impasse decisions as required by 5 U.S.C. chapter procedures and impasse decisions as 71. required by subpart E of part 9701. 5 U.S.C. § 7116(a)(7) - Unfair Labor No similar provision. Practices (Enforcement of Conflicting Rule or Regulation) It shall be an unfair labor practice for an agency to enforce any rule or regulation (other than a rule or regulation implementing 5 U.S.C. § 2302) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed. 5 U.S.C. § 7116(b)(5) - Unfair Labor 5 C.F.R. § 9701.517(b)(5) - Unfair Labor Practices (Labor Organization Refusal to Practices (Labor Organization Refusal to Consult or Negotiate in Good Faith) Consult or Negotiate in Good Faith) It shall be an unfair labor practice for a It is an unfair labor practice for a labor labor organization to refuse to consult or organization to refuse, as determined by negotiate in good faith with an agency as the Board, to consult or negotiate in good required by 5 U.S.C. chapter 71. faith with the Department as required by subpart E of part 9701. 5 U.S.C. § 7116(b)(6) - Unfair Labor 5 C.F.R. § 9701.517(b)(6) - Unfair Labor Practices (Labor Organization Failure or Practices (Labor Organization Failure or Refusal to Cooperate in Impasse Refusal to Cooperate in Impasse Procedures and Decisions) Procedures and Decisions) It shall be an unfair labor practice for a It is an unfair labor practice for a labor labor organization to fail or refuse to organization to fail or refuse, as cooperate in impasse procedures and determined by the Board, to cooperate in impasse decisions as required by 5 U.S.C. impasse procedures and impasse chapter 71. decisions as required by subpart E of part 9701. 5 U.S.C. § 7118(a)(4)(A) - Unfair Labor 5 C.F.R. § 9701.517(e) - Unfair Labor Practices (Filing Deadlines) Practices (Filing Deadlines) Except as provided in 5 U.S.C. § The Board will not consider any unfair 7118(a)(4)(B), the General Counsel of labor practice allegation filed more than the FLRA shall not issue a complaint six months after the alleged unfair labor based on any alleged unfair labor practice practice occurred, unless it determines, which occurred more than 6 months pursuant to its regulations, that there is CRS-12 Current Law Final DHS Regulations before the filing of the charge with the good cause for the late filing. FLRA. 5 U.S.C. § 7116(e) - Unfair Labor 5 C.F.R. § 9701.517(g) - Unfair Labor Practices (Personal Expressions) Practices (Personal Expressions) The expression of any personal view, The expression of any personal view, argument, or opinion, or the making of argument, or opinion, or the making of any statement which publicizes the fact any statement which publicizes the fact of a representational election and of a representational election and encourages employees to exercise their encourages employees to exercise their right to vote in such election, corrects the right to vote in such election, corrects the record with respect to any false or record with respect to any false or misleading statement made by any misleading statement made by any person, or informs employees of the person, or informs employees of the Government's policy relating to labor- Government's policy relating to labor- management relations and representation, management relations and representation, shall not, if the expression contains no may not, if the expression contains no threat of reprisal or force or promise of threat of reprisal or force or promise of benefit or was not made under coercive benefit or was not made under coercive conditions, (1) constitute an unfair labor conditions, (1) constitute an unfair labor practice under any provision of this practice under any provision of this chapter, or (2) constitute grounds for the chapter, or (2) constitute grounds for the setting aside of any election conducted setting aside of any election conducted under any provisions of 5 U.S.C. chapter under any provisions of subpart E of part 71. 9701 (emphasis added). 5 U.S.C. § 7117(a) - Duty to Bargain in 5 C.F.R. § 9701.518(d)(1) - Duty to Good Faith; Compelling Need; Duty to Bargain, Confer, and Consult Consult Management may not bargain over any The duty to bargain in good faith shall, to matters that are inconsistent with law or the extent not inconsistent with any the regulations in subpart E of part 9701, federal law or any government-wide rule government-wide rules and regulations, or regulation, extend to matters which are departmental implementing directives the subject of any rule or regulation only and other policies and regulations, or if the rule or regulation is not a executive orders. government-wide rule or regulation, and only if the FLRA has determined that no compelling need exists for the rule or regulation. No similar provision. 5 C.F.R. § 9701.518(b) -Duty to Bargain, Confer, and Consult (Bargaining Over Initial and Successor Agreements) If bargaining over an initial collective bargaining agreement or any successor agreement is not completed within 90 days after such bargaining begins, the parties can mutually agree to continue bargaining or mutually agree to refer the matter to an independent mediator/arbitrator for resolution. CRS-13 Current Law Final DHS Regulations Alternatively, either party may refer the matter to the Board for resolution in accordance with procedures established by the Board, or may refer the matter to the FMCS for assistance at any time. No similar provision. 5 C.F.R. § 9701.518(c) -Duty to Bargain, Confer, and Consult (Bargaining During the Term of an Existing Agreement) If the parties bargain during the term of an existing collective bargaining agreement over a proposed change that is otherwise negotiable, and no agreement is reached within 30 days after such bargaining begins, the parties may mutually agree to continue bargaining or mutually agree to refer the matter to an independent mediator/arbitrator for resolution. Alternatively, either party may refer the matter to the Board for resolution in accordance with procedures established by the Board, or may refer the matter to the FMCS for assistance at any time. No similar provision 5 C.F.R. § 9701.518(d)(3), (d)(4) -Duty to Bargain, Confer, and Consult (Change in Conditions of Employment) Management has no obligation to bargain over a change to a condition of employment unless the change is otherwise negotiable pursuant to DHS regulations and is foreseeable, substantial, and significant in terms of both impact and duration on the bargaining unit, or on those employees affected by the change. Management has no obligation to confer or consult unless a change is foreseeable, substantial, and significant in terms of both impact and duration on the bargaining unit, or on those employees affected by the change. CRS-14 Current Law Final DHS Regulations 5 U.S.C. § 7117(c)(1) -Duty to Bargain in 5 C.F.R. § 9701.518(e) -Duty to Bargain, Good Faith; Compelling Need; Duty to Confer, and Consult (Negotiation Consult (Negotiation Appeals) Appeals) Except in cases involving compelling If a management official involved in need, if an agency involved in collective collective bargaining with an exclusive bargaining with an exclusive representative alleges that the duty to representative alleges that the duty to bargain in good faith does not extend to bargain in good faith does not extend to any matter, the exclusive representative any matter, the exclusive representative may appeal the allegation to the Board in may appeal the allegation to the FLRA in accordance with the Board's procedures. accordance with the provisions of 5 U.S.C. § 7117(c). 5 U.S.C. § 7119(a) - Negotiation 5 C.F.R. § 9701.519(a) - Negotiation Impasses Impasses The Federal Mediation and Conciliation If the Department and exclusive Service ("FMCS") shall provide services representative are unable to reach an and assistance to agencies and exclusive agreement under 5 C.F.R. §§ 9701.515 or representatives in the resolution of 9701.518, either party may submit the negotiation impasses. The FMCS shall disputed issues to the Board for determine under what circumstances and resolution. in what manner it shall provide services and assistance. 5 U.S.C. § 7119(b), (c)(5)(B) - 5 C.F.R. § 9701.519(b) - Negotiation Negotiation Impasses (Failure to Resolve Impasses (Failure to Resolve Impasse) Impasse) If the parties do not arrive at a settlement If voluntary arrangements, including the after assistance by the Board, the Board services of the FMCS or any other third- may take whatever action is necessary party mediation fail to resolve the and not inconsistent with subpart E of negotiation impasse, either party may part 9701 to resolve the impasse. request the Federal Service Impasses Panel ("FSIP") to consider the matter or the parties may agree to adopt a procedure for binding arbitration of the negotiation impasse, but only if the procedure is approved by the FSIP. If the parties do not arrive at a settlement after assistance by the FSIP, the FSIP may take whatever action is necessary and not inconsistent with 5 U.S.C. chapter 71 to resolve the impasse. 5 U.S.C. § 7121(a)(1) - Grievance 5 C.F.R. § 9701.521(a)(1) - Grievance Procedures (Procedures in Collective Procedures (Procedures in Collective Bargaining Agreements) Bargaining Agreements) Except as provided in 5 U.S.C. § Except as provided in 5 C.F.R. § 7121(a)(2), any collective bargaining 9701.521(a)(2), any collective bargaining agreement shall provide procedures for agreement must provide procedures for the settlement of grievances, including the settlement of grievances including CRS-15 Current Law Final DHS Regulations questions of arbitrability. Except as questions of arbitrability. Except as provided in 5 U.S.C. § 7121(d), (e), and provided in 5 C.F.R. § 9701.521(d), (f), (g), the procedures shall be the exclusive and (g), the procedures must be the administrative procedures for resolving exclusive administrative procedures for grievances which fall within their grievances which fall within its coverage. coverage. 5 C.F.R. § 9701.521(d): To the extent not 5 U.S.C. § 7121(d): Prohibited personnel already excluded by existing collective practices involving employment bargaining agreements, the exclusions discrimination may be raised under a contained in 5 C.F.R. § 9701.521(c) statutory procedure or the negotiated apply upon the effective date of subpart procedure, but not both. E, as determined under 5 C.F.R. § 9701.102(b). 5 U.S.C. § 7121(e): Matters involving unacceptable performance, removals, 5 C.F.R. § 9701.521(f)(1): Matters suspensions, and reductions in grade and covered by subpart G may be raised pay which fall within the coverage of the under the appeals procedure of 5 C.F.R. § negotiated grievance procedure may be 9701.706 or under the negotiated raised under the appellate procedures of 5 grievance procedure, but not both. U.S.C. § 7701 or under the negotiated grievance procedures, but not both. 5 C.F.R. § 9701.521(g)(1): A performance rating of record that has not 5 U.S.C. § 7121(g): Other prohibited been appealed in connection with an personnel practices may be appealed to action under subpart G may be grieved. the Merit Systems Protection Board ("MSPB"), raised under the negotiated grievance procedure, or addressed through procedures for seeking corrective action under subchapters II and III of 5 U.S.C. chapter 12. 5 U.S.C. § 7121(b)(2)(A) - Grievance 5 C.F.R. § 9701.521(b)(2) - Grievance Procedures (Negotiated Grievance Procedures (Negotiated Grievance Procedures) Procedures) The provisions of a negotiated grievance Similar regulatory language. procedure providing for binding arbitration shall, if or to the extent that an alleged prohibited personnel practice is involved, allow the arbitrator to order (1) a stay of any personnel action in a manner similar to the manner described in 5 U.S.C. § 1221(c) with respect to the MSPB, and (2) the taking, by an agency, of any disciplinary action identified under section 5 U.S.C. § 1215(a)(3) that is otherwise within the authority of such agency to take. CRS-16 Current Law Final DHS Regulations 5 U.S.C. § 7121(d) - Grievance 5 C.F.R. § 9701.521(e)(1) - Grievance Procedures (Prohibited Personnel Procedures (Prohibited Personnel Practices Involving Employment Practices Involving Employment Discrimination) Discrimination) Selection of the negotiated procedure by An aggrieved employee affected by a an aggrieved employee affected by a prohibited personnel practice under 5 prohibited personnel practice involving U.S.C. § 2302(b)(1) which also falls employment discrimination in no manner under the coverage of the negotiated prejudices the right of the employee to grievance procedure may raise the matter request the MSPB to review the final under the applicable statutory procedures, decision in the case of any action that or the negotiated procedure, but not both. could have been appealed to the MSPB, or, where applicable, to request the Equal Employment Opportunity Commission ("EEOC") to review a final decision in any other matter involving a complaint of discrimination of the type prohibited by any law administered by the EEOC. 5 U.S.C. § 7121(h) - Grievance No similar provision. Procedures (Limits on Settlements and Awards) Settlements and awards under 5 U.S.C. chapter 71 shall be subject to the limitations in 5 U.S.C. § 5596(b)(4). 5 U.S.C. § 7122 - Exceptions to 5 C.F.R. § 9701.522 - Exceptions to Arbitration Awards Arbitration Awards Either party to arbitration under 5 U.S.C. For awards involving the exercise of chapter 71 may file with the FLRA an management rights or the duty to bargain exception to any arbitrator's award. If under 5 C.F.R. §§ 9701.511 and upon review, the FLRA finds that the 9701.518, either party to the arbitration award is deficient because it is contrary may file an exception to any arbitrator's to any law, rule, or regulation, or on the award with the Board. The Board may grounds similar to those applied by take such action and make such federal courts in private sector labor- recommendations concerning the award management relations, it may take such as is consistent with subpart E. If no action and make such recommendations exception to an arbitrator's award is filed concerning the award as it considers during the 30-day period beginning on necessary, consistent with applicable the date of such award, the award is final laws, rules, or regulations. If no and binding. exception to an arbitrator's award is filed during the 30-day period beginning on For other awards, either party may file an the date the award is served on the party, exception with the FLRA pursuant to 5 the award shall be final and binding. U.S.C. § 7122 and the FLRA's regulations. 5 U.S.C. § 7131 - Official Time 5 C.F.R. § 9701.523 - Official Time Any employee representing an exclusive Any employee representing an exclusive representative in the negotiation of a representative in the negotiation of a CRS-17 Current Law Final DHS Regulations collective bargaining agreement under 5 collective bargaining agreement under U.S.C. chapter 71 shall be authorized subpart E must be authorized official official time for such purposes, including time for such purposes, including attendance at impasse proceedings, attendance at impasse proceedings, during the time the employee otherwise during the time the employee otherwise would be in a duty status. Except as would be in a duty status. Except as provided in 5 U.S.C. § 7131(a), the provided in 5 C.F.R. § 9701.523(a), the FLRA shall determine whether any FLRA or the Board will determine employee participating for, or on behalf whether an employee participating for, or of, a labor organization in any phase of on behalf of, a labor organization in any proceedings before the FLRA shall be phase of proceedings before the FLRA or authorized official time for such purpose the Board will be authorized official time during the time the employee would for such purpose during the time the otherwise be in a duty status. employee would otherwise be in a duty status. 5 U.S.C. § 7133 - Compilation and 5 C.F.R. § 9701.524 - Compilation and Publication of Data Publication of Data The FLRA shall maintain a file of its The Board must maintain a file of its proceedings and copies of all available proceedings and copies of all available agreements and arbitration decisions, and agreements and arbitration decisions and shall publish the texts of its decisions and publish the texts of its impasse resolution the actions taken by the FSIP under 5 decisions and the actions taken under 5 U.S.C. § 7119. All files shall be open to C.F.R. § 9701.919. All files must be inspection and reproduction in open to inspection and reproduction in accordance with the provisions of 5 accordance with 5 U.S.C. §§ 552 and U.S.C. §§ 552 and 552a. 552a. The Board will establish rules in consultation with the Department for maintaining and making available for inspection sensitive information. 5 U.S.C. § 7135(a)(2) - Continuation of No similar provision. Existing Laws, Recognitions, Agreements, and Procedures (Units of Management Officials or Supervisors) Nothing contained in 5 U.S.C. chapter 71 shall preclude the renewal, continuation, or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent management officials or supervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of 5 U.S.C. chapter 71. CRS-18 Current Law Final DHS Regulations No similar provision. 5 C.F.R. § 9701.527 - Savings Provision Subpart E of part 9701 does not apply to grievances or other administrative proceedings already pending on the effective date of the subpart, as determined under 5 C.F.R. § 9701.102(b). Any remedy that applies after the date of coverage under any provision of subpart E and that is in conflict with applicable provisions of subpart E is not enforceable. ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL32255