[Federal Register: June 26, 1996 (Volume 61, Number 124)]
[Rules and Regulations]               
[Page 32913-32917]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn96-1]

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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

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[[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