Accountable Federal Employees Act or the Accountable Feds Act
This bill establishes and modifies requirements relating to the administration of the federal workforce, including (1) creating a new Schedule F in the excepted service for certain positions that are not normally subject to change as a result of a presidential transition; (2) specifying certain standards and principles relating to removals, grievance procedures, and adverse personnel actions; (3) placing certain restrictions on the use of union time; and (4) creating a workgroup to manage the efficiency of labor-management relations.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 7095 Introduced in House (IH)]
<DOC>
117th CONGRESS
2d Session
H. R. 7095
To enhance accountability and efficiency in the Federal civil service,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 16, 2022
Mr. Hice of Georgia (for himself, Mr. Cloud, Mr. Clyde, Mr. C. Scott
Franklin of Florida, Mrs. Harshbarger, Ms. Herrell, Mr. Higgins of
Louisiana, Mr. Gibbs, Mr. Keller, Mr. LaTurner, Mr. Norman, and Ms.
Mace) introduced the following bill; which was referred to the
Committee on Oversight and Reform
_______________________________________________________________________
A BILL
To enhance accountability and efficiency in the Federal civil service,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Accountable
Federal Employees Act'' or the ``Accountable Feds Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--CREATING SCHEDULE F IN THE EXCEPTED SERVICE
Sec. 101. Short title.
Sec. 102. Findings.
Sec. 103. Schedule F of the excepted service.
Sec. 104. Executive agency actions.
Sec. 105. Definitions.
TITLE II--REMOVAL
Sec. 201. Short title.
Sec. 202. Findings.
Sec. 203. Principles for accountability in the Federal workforce.
Sec. 204. Standard for negotiating grievance procedures.
Sec. 205. Managing the Federal workforce.
Sec. 206. Ensuring integrity of personnel files.
Sec. 207. Data collection of adverse actions.
Sec. 208. Implementation.
Sec. 209. General provisions.
TITLE III--UNION TIME
Sec. 301. Short title.
Sec. 302. Purposes.
Sec. 303. Definitions.
Sec. 304. Standards for reasonable and efficient taxpayer-funded union
time usage.
Sec. 305. Employee conduct with regard to agency time and resources.
Sec. 306. Preventing unlawful or unauthorized expenditures.
Sec. 307. Agency reporting requirements.
Sec. 308. Public disclosure and transparency.
Sec. 309. Implementation and renegotiation of collective bargaining
agreements.
TITLE IV--COST REDUCING IN COLLECTIVE BARGAINING
Sec. 401. Short title.
Sec. 402. Findings.
Sec. 403. Definitions.
Sec. 404. Interagency labor relations working group.
Sec. 405. Collective bargaining objectives.
Sec. 406. Collective bargaining procedures.
Sec. 407. Permissive bargaining.
Sec. 408. Efficient bargaining over procedures and appropriate
arrangements.
Sec. 409. Public accessibility.
Sec. 410. Lack of report.
Sec. 411. Application.
TITLE I--CREATING SCHEDULE F IN THE EXCEPTED SERVICE
SEC. 101. SHORT TITLE.
This title may be cited as the ``Creating Schedule F in the
Excepted Service Act''.
SEC. 102. FINDINGS.
Congress finds the following:
(1) To effectively carry out the broad array of activities
assigned to the executive branch under law, the President and
his appointees must rely on men and women in the Federal
service employed in positions of a confidential, policy-
determining, policy-making, or policy-advocating character.
Faithful execution of the law requires that the President have
appropriate management oversight regarding this select cadre of
professionals.
(2) The Federal Government benefits from career
professionals in positions that are not normally subject to
change as a result of a Presidential transition but who
discharge significant duties and exercise significant
discretion in formulating and implementing executive branch
policy and programs under the laws of the United States. The
heads of executive departments and agencies (agencies) and the
American people also entrust these career professionals with
non-public information that must be kept confidential.
(3) With the exception of attorneys in the Federal service
who are appointed pursuant to schedule A of the excepted
service and members of the Senior Executive Service,
appointments to these positions are generally made through the
competitive service. Given the importance of the functions they
discharge, employees in such positions must display appropriate
temperament, acumen, impartiality, and sound judgment.
(4) Due to these requirements, agencies should have a
greater degree of appointment flexibility with respect to these
employees than is afforded by the existing competitive service
process.
(5) Further, effective performance management of employees
in confidential, policy-determining, policy-making, or policy-
advocating positions is of the utmost importance.
Unfortunately, the Government's current performance management
is inadequate, as recognized by Federal workers themselves. For
instance, the 2016 Merit Principles Survey reveals that less
than a quarter of Federal employees believe their agency
addresses poor performers effectively.
(6) Separating employees who cannot or will not meet
required performance standards is important, and it is
particularly important with regard to employees in
confidential, policy-determining, policy-making, or policy-
advocating positions. High performance by such employees can
meaningfully enhance agency operations, while poor performance
can significantly hinder them. Senior agency officials report
that poor performance by career employees in policy-relevant
positions has resulted in long delays and substandard-quality
work for important agency projects, such as drafting and
issuing regulations.
(7) Conditions of good administration make necessary an
exception to the competitive hiring rules and examinations for
career positions in the Federal service of a confidential,
policy-determining, policy-making, or policy-advocating
character. These conditions include the need to provide agency
heads with additional flexibility to assess prospective
appointees without the limitations imposed by competitive
service selection procedures. Placing these positions in the
excepted service will mitigate undue limitations on their
selection. This action will also give agencies greater ability
and discretion to assess critical qualities in applicants to
fill these positions, such as work ethic, judgment, and ability
to meet the particular needs of the agency. These are all
qualities individuals should have before wielding the authority
inherent in their prospective positions, and agencies should be
able to assess candidates without proceeding through
complicated and elaborate competitive service processes or
rating procedures that do not necessarily reflect their
particular needs.
(8) Conditions of good administration similarly make
necessary excepting such positions from the adverse action
procedures set forth in chapter 75 of title 5, United States
Code. Chapter 75 of title 5, United States Code, requires
agencies to comply with extensive procedures before taking
adverse action against an employee. These requirements can make
removing poorly performing employees difficult. Only a quarter
of Federal supervisors are confident that they could remove a
poor performer. Career employees in confidential, policy-
determining, policy-making, and policy-advocating positions
wield significant influence over Government operations and
effectiveness. Agencies need the flexibility to expeditiously
remove poorly performing employees from these positions without
facing extensive delays or litigation.
SEC. 103. SCHEDULE F OF THE EXCEPTED SERVICE.
(a) In General.--Appointments of individuals to positions of a
confidential, policy-determining, policy-making, or policy-advocating
character that are not normally subject to change as a result of a
Presidential transition shall be made under schedule F of the excepted
service, as established by subsection (b).
(b) Regulations.--The Director of the Office of Personnel
Management shall--
(1) amend section 6.2 of title 5, Code of Federal
Regulations, to read as follows:
``OPM shall list positions that it excepts from the competitive
service in Schedules A, B, C, D, E, and F, which schedules shall
constitute parts of this rule, as follows:
``Schedule A. Positions other than those of a confidential or
policy-determining character for which it is not practicable to examine
shall be listed in Schedule A.
``Schedule B. Positions other than those of a confidential or
policy-determining character for which it is not practicable to hold a
competitive examination shall be listed in Schedule B. Appointments to
these positions shall be subject to such noncompetitive examination as
may be prescribed by OPM.
``Schedule C. Positions of a confidential or policy-determining
character normally subject to change as a result of a Presidential
transition shall be listed in Schedule C.
``Schedule D. Positions other than those of a confidential or
policy-determining character for which the competitive service
requirements make impracticable the adequate recruitment of sufficient
numbers of students attending qualifying educational institutions or
individuals who have recently completed qualifying educational
programs. These positions, which are temporarily placed in the excepted
service to enable more effective recruitment from all segments of
society by using means of recruiting and assessing candidates that
diverge from the rules generally applicable to the competitive service,
shall be listed in Schedule D.
``Schedule E. Position of administrative law judge appointed under
5 U.S.C. 3105. Conditions of good administration warrant that the
position of administrative law judge be placed in the excepted service
and that appointment to this position not be subject to the
requirements of 5 CFR, part 302, including examination and rating
requirements, though each agency shall follow the principle of veteran
preference as far as administratively feasible.
``Schedule F. Positions of a confidential, policy-determining,
policy-making, or policy-advocating character not normally subject to
change as a result of a Presidential transition shall be listed in
Schedule F. In appointing an individual to a position in Schedule F,
each agency shall follow the principle of veteran preference as far as
administratively feasible'';
(2) amend section 6.4 of title 5, Code of Federal
Regulations, to read as follows:
``Except as required by statute, the Civil Service Rules and
Regulations shall not apply to removals from positions listed in
Schedules A, C, D, E, or F, or from positions excepted from the
competitive service by statute. The Civil Service Rules and Regulations
shall apply to removals from positions listed in Schedule B of persons
who have competitive status.'';
(3) adopt such regulations as the Director determines may
be necessary to implement this title, including, as
appropriate, amendments to or rescissions of regulations that
are inconsistent with, or that would impede the implementation
of, this title, giving particular attention to--
(A) section 302.101 of title 5, Code of Federal
Regulations;
(B) subpart D of part 212 of such title; and
(C) subparts A and C of part 213 of such title; and
(4) provide guidance on conducting a swift, orderly
transition from the existing appointment processes to the
schedule F process established by this title.
SEC. 104. EXECUTIVE AGENCY ACTIONS.
(a) Review.--
(1) In general.--Each Executive agency head shall conduct,
not later than 90 days after the date of enactment of this Act,
a preliminary review of the positions in the Executive agency
that are covered by subchapter II of chapter 75 of title 5,
United States Code, and shall conduct a complete review of the
positions in the agency not later than 210 days after the date
of enactment of this Act. Thereafter, each agency head shall
conduct a review of such positions that are covered by
subchapter II of chapter 75 of title 5, United States Code, on
at least an annual basis.
(2) Petitions.--
(A) In general.--Following a review under paragraph
(1), each agency head shall, for positions not excepted
from the competitive service by statute, petition the
Director to place in schedule F any such competitive
service, schedule A, schedule B, or schedule D
positions in the Executive agency that the agency head
determines to be of a confidential, policy-determining,
policy-making, or policy-advocating character and that
are not normally subject to change as a result of a
Presidential transition.
(B) Petition explanation.--Any petition submitted
under subparagraph (A) shall include a written
explanation documenting the basis for the agency head's
determination that such position should be placed in
schedule F.
(3) Determinations.--
(A) In general.--Following a review under paragraph
(1), each agency head shall, for positions excepted
from the competitive service by statute, determine
which such positions are of a confidential, policy-
determining, policy-making, or policy-advocating
character and are not normally subject to change as a
result of a Presidential transition.
(B) Determination effect.--A position which the
agency head determines under subparagraph (A) to be of
a confidential, policy-determining, policy-making, or
policy-advocating character and not normally subject to
change as a result of a Presidential transition shall
be considered a schedule F position for the purposes of
Executive agency actions under subsections (d) and (f).
(C) Publication.--An agency head shall publish each
determination made under subparagraph (A) in the
Federal Register.
(b) Applicability.--The requirements set forth in subsection (a)
shall apply to currently existing positions and newly created
positions.
(c) Additional Consideration.--When conducting the review required
by subsection (a), each agency head should give particular
consideration to the appropriateness of either petitioning the Director
to place in schedule F or including in the determination published in
the Federal Register, as applicable, positions of which the duties
include any of the following:
(1) Substantive participation in the advocacy for or
development or formulation of policy, especially--
(A) substantive participation in the development or
drafting of regulations and guidance; or
(B) substantive policy-related work in an Executive
agency or Executive agency component that primarily
focuses on policy.
(2) The supervision of attorneys.
(3) Substantial discretion to determine the manner in which
the Executive agency exercises functions committed to the
agency by law.
(4) Viewing, circulating, or otherwise working with
proposed regulations, guidance, executive orders, or other non-
public policy proposals or deliberations generally covered by
deliberative process privilege and either--
(A) directly reporting to or regularly working with
an individual appointed by either the President or an
agency head who is paid at a rate not less than that
earned by employees at Grade 13 of the General
Schedule; or
(B) working in the Executive agency or Executive
agency component executive secretariat (or equivalent).
(5) Conducting, on the Executive agency's behalf,
collective bargaining negotiations under chapter 71 of title 5,
United States Code.
(d) Petition Decision.--The Director shall promptly determine
whether to grant any petition under subsection (a). Not later than
December 31 of each year, the Director shall report to the President,
through the Director of the Office of Management and Budget and the
Assistant to the President for Domestic Policy, concerning the number
of petitions granted and denied for that year for each Executive
agency.
(e) Collective Bargaining Exclusions.--Each agency head shall, as
necessary and appropriate, expeditiously petition the Federal Labor
Relations Authority to determine whether any schedule F position must
be excluded from a collective bargaining unit under section 7112(b) of
title 5, United States Code, paying particular attention to the
question of whether incumbents in such positions are required or
authorized to formulate, determine, or influence the policies of the
agency.
(f) Prohibited Personnel Practices.--Agency heads shall establish
rules to prohibit the personnel practices prohibited by section 2302(b)
of title 5, United States Code, with respect to any employee or
applicant for employment in schedule F of the excepted service.
SEC. 105. DEFINITIONS.
In this title:
(1) Agency head.--The term ``agency head'' means the head
of an Executive agency.
(2) Director.--The term ``Director'' means the Director of
the Office of Personnel Management.
(3) Executive agency.--The term ``Executive agency'' has
the meaning given such term in section 105 of title 5, United
States Code, but excluding the Government Accountability
Office.
(4) Normally subject to change as a result of a
presidential transition.--The term ``normally subject to change
as a result of a Presidential transition'' refers to positions
whose occupants are, as a matter of practice, expected to
resign upon a Presidential transition, including all positions
whose appointment requires the assent of the White House Office
of Presidential Personnel.
TITLE II--REMOVAL
SEC. 201. SHORT TITLE.
This title may be cited as the ``Promoting Accountability and
Streamlining Removal Procedures Consistent with Merit System Principles
Act''.
SEC. 202. FINDINGS.
Congress finds the following:
(1) Federal merit system principles call for holding
Federal employees accountable for performance and conduct.
(2) They state that employees should maintain high
standards of integrity, conduct, and concern for the public
interest, and that the Federal workforce should be used
efficiently and effectively. They further state that employees
should be retained based on the adequacy of their performance,
inadequate performance should be corrected, and employees
should be separated who cannot or will not improve their
performance to meet required standards.
(3) Unfortunately, implementation of America's civil
service laws has fallen far short of these ideals.
(4) The Federal Employee Viewpoint Survey has consistently
found that less than one-third of Federal employees believe
that the Government deals with poor performers effectively.
(5) Failure to address unacceptable performance and
misconduct undermines morale, burdens good performers with
subpar colleagues, and inhibits the ability of any agency to
accomplish their missions.
(6) This title advances the ability of supervisors in
agencies to promote civil servant accountability consistent
with merit system principles while simultaneously recognizing
employees' procedural rights and protections.
SEC. 203. PRINCIPLES FOR ACCOUNTABILITY IN THE FEDERAL WORKFORCE.
In managing the Federal workforce, and in addition to the other
requirements of this title, each agency shall, to the greatest extent
practicable, adhere to and carry out the following principles:
(1) Removing unacceptable performers should be a
straightforward process that minimizes the burden on
supervisors. Agencies shall limit opportunity periods to
demonstrate acceptable performance under section 4302(c)(6) of
title 5, United States Code, to the amount of time that
provides sufficient opportunity to demonstrate acceptable
performance.
(2) Supervisors and deciding officials shall not be
required to use progressive discipline. The penalty for an
instance of misconduct should be tailored to the facts and
circumstances.
(3) Each employee's work performance and disciplinary
history is unique, and disciplinary action should be calibrated
to the specific facts and circumstances of each individual
employee's situation. Conduct that justifies discipline of one
employee at one time does not necessarily justify similar
discipline of a different employee at a different time--
particularly where the employees are in different work units or
chains of supervision--and agencies are not prohibited from
removing an employee simply because they did not remove a
different employee for comparable conduct. Nonetheless,
employees should be treated equitably, so agencies should
consider appropriate comparators as they evaluate potential
disciplinary actions.
(4) Suspension should not be a substitute for removal in
circumstances in which removal would be appropriate. Agencies
should not require suspension of an employee before proposing
to remove that employee, except as may be appropriate under
applicable facts.
(5) When taking disciplinary action, agencies should have
discretion to take into account an employee's disciplinary
record and past work record, including all past misconduct--not
only similar past misconduct. Agencies should provide an
employee with appropriate notice when taking a disciplinary
action.
(6) To the extent practicable, agencies should issue
decisions on proposed removals taken under chapter 75 of title
5, United States Code, within 15 business days of the end of
the employee reply period following a notice of proposed
removal.
(7) To the extent practicable, agencies should limit the
written notice of adverse action to the 30 days prescribed in
section 7513(b)(1) of title 5, United States Code.
(8) The removal procedures set forth in chapter 75 of title
5, United States Code, should be used in appropriate cases to
address instances of unacceptable performance.
(9) A probationary period should be used as the final step
in the hiring process of a new employee. Supervisors should use
that period to assess how well an employee can perform the
duties of a job. A probationary period can be a highly
effective tool to evaluate a candidate's potential to be an
asset to an agency before the candidate's appointment becomes
final.
(10) Following issuance of regulations under section 208 of
this title, agencies should prioritize performance over length
of service when determining which employees will be retained
following a reduction in force.
SEC. 204. STANDARD FOR NEGOTIATING GRIEVANCE PROCEDURES.
Whenever reasonable in view of the particular circumstances, agency
heads shall endeavor to exclude from the application of any grievance
procedures negotiated under section 7121 of title 5, United States
Code, any dispute concerning decisions to remove any employee from
Federal service for misconduct or unacceptable performance. Each agency
shall commit the time and resources necessary to achieve this goal and
to fulfill its obligation to bargain in good faith. If an agreement
cannot be reached, the agency shall promptly request the assistance of
the Federal Mediation and Conciliation Service and, as necessary, the
Federal Service Impasses Panel in the resolution of the disagreement.
Not later than 30 days after the date of adoption of any collective
bargaining agreement that fails to achieve this goal, the agency head
shall provide an explanation to the President, through the Director of
the Office of Personnel Management (in this title referred to as the
``Director'').
SEC. 205. MANAGING THE FEDERAL WORKFORCE.
To promote good morale in the Federal workforce, employee
accountability, and high performance, and to ensure the effective and
efficient accomplishment of agency missions and the efficiency of the
Federal service, no agency shall--
(1) subject to grievance procedures or binding arbitration
disputes concerning--
(A) the assignment of ratings of record; or
(B) the award of any form of incentive pay,
including cash awards; quality step increases; or
recruitment, retention, or relocation payments;
(2) make any agreement, including a collective bargaining
agreement--
(A) that limits the agency's discretion to employ
the removal procedures set forth in chapter 75 of title
5, United States Code, to address unacceptable
performance of an employee;
(B) that requires the use of procedures under
chapter 43 of title 5, United States Code (including
any performance assistance period or similar informal
period to demonstrate improved performance prior to the
initiation of an opportunity period under section
4302(c)(6) of such title), before removing an employee
for unacceptable performance; or
(C) that limits the agency's discretion to remove
an employee from Federal service without first engaging
in progressive discipline; or
(3) generally afford an employee more than a 30-day period
to demonstrate acceptable performance under section 4302(c)(6)
of title 5, United States Code, except when the agency
determines in its sole and exclusive discretion that a longer
period is necessary to provide sufficient time to evaluate an
employee's performance.
SEC. 206. ENSURING INTEGRITY OF PERSONNEL FILES.
Agencies shall not agree to erase, remove, alter, or withhold from
another agency any information about a civilian employee's performance
or conduct in that employee's official personnel records, including an
employee's Official Personnel Folder and Employee Performance File, as
part of, or as a condition to, resolving a formal or informal complaint
by the employee or settling an administrative challenge to an adverse
personnel action.
SEC. 207. DATA COLLECTION OF ADVERSE ACTIONS.
(a) In General.--For fiscal year 2021 and for each fiscal year
thereafter, each agency shall provide, to the Director, the Committee
on Oversight and Reform of the House of Representatives, and the
Committee on Homeland Security and Governmental Affairs of the Senate,
a report containing information on--
(1) the number of civilian employees in a probationary
period or otherwise employed for a specific term who were
removed by the agency;
(2) the number of civilian employees reprimanded in writing
by the agency;
(3) the number of civilian employees afforded an
opportunity period by the agency under section 4302(c)(6) of
title 5, United States Code, breaking out the number of such
employees receiving an opportunity period longer than 30 days;
(4) the number of adverse personnel actions taken against
civilian employees by the agency, broken down by type of
adverse personnel action, including reduction in grade or pay
(or equivalent), suspension, and removal;
(5) the number of decisions on proposed removals by the
agency taken under chapter 75 of title 5, United States Code,
not issued within 15 business days of the end of the employee
reply period;
(6) the number of adverse personnel actions by the agency
for which employees received written notice in excess of the 30
days prescribed in section 7513(b)(1) of title 5, United States
Code;
(7) the number and key terms of settlements reached by the
agency with civilian employees in cases arising out of adverse
personnel actions; and
(8) the resolutions of litigation about adverse personnel
actions involving civilian employees reached by the agency.
(b) Publication.--To enhance public accountability of agencies for
their management of the Federal workforce, the Director shall,
consistent with applicable law, publish the information received under
subsection (a) of this section, at the minimum level of aggregation
necessary to protect personal privacy. The Director may withhold
particular information if publication would unduly risk disclosing
information protected by law, including personally identifiable
information.
(c) Guidance.--Not later than 60 days after the date of enactment
of this Act, the Director shall issue guidance regarding the
implementation of this section, including with respect to any
exemptions necessary for compliance with applicable law and the
reporting format for submissions required by subsection (a).
SEC. 208. IMPLEMENTATION.
(a) In General.--Not later than 45 days after the date of enactment
of this Act, the Director shall examine whether existing regulations
effectuate the principles set forth in section 203 and the requirements
of sections 204, 205, 206, and 207. To the extent necessary or
appropriate, the Director shall, as soon as practicable, propose for
notice and public comment appropriate regulations to effectuate the
principles set forth in section 203 and the requirements of sections
204, 205, 206, and 207.
(b) Revision of Policies.--The head of each agency shall take steps
to conform internal agency discipline and unacceptable performance
policies to the principles and requirements of this title. Each agency
head shall--
(1) not later than 45 days after the date of enactment of
this Act, revise its discipline and unacceptable performance
policies to conform to the principles and requirements of this
title, in areas where new final Office of Personnel Management
regulations are not required, and shall further revise such
policies as necessary to conform to any new final Office
regulations, within 45 days of the issuance of such
regulations; and
(2) renegotiate, as applicable, any collective bargaining
agreement provisions that are inconsistent with any part of
this title or any final Office of Personnel Management
regulations promulgated pursuant to this title.
(c) Collective Bargaining.--In carrying out subsection (b)(2), each
agency shall give any contractually required notice of its intent to
alter the terms of such agreement and reopen negotiations. Each agency
shall subsequently conform such terms to the requirements of this
title, and to any final Office regulations issued pursuant to this
title, on the earliest practicable date permitted by law.
(d) Report.--Not later than 15 months after the adoption of any
final rules issued pursuant to subsection (a) of this section, the
Director shall submit to the President a report, through the Director
of the Office of Management and Budget, evaluating the effect of those
rules, including their effect on the ability of Federal supervisors to
hold employees accountable for their performance.
(e) Government-Wide Training.--Within a reasonable amount of time
following the adoption of any final rules issued pursuant to subsection
(a), the Director and the Chief Human Capital Officers Council shall
undertake a Government-wide initiative to educate Federal supervisors
about holding employees accountable for unacceptable performance or
misconduct under those rules.
SEC. 209. GENERAL PROVISIONS.
(a) Consultation Required; Collective Bargaining.--Agencies shall
consult with employee labor representatives about the implementation of
this title.
(b) Application.--Nothing in this title shall abrogate any
collective bargaining agreement in effect on the date of enactment of
this title.
(c) Definition of Agency.--In this title, the term ``agency'' has
the meaning given the term ``Executive agency'' in section 105 of title
5, United States Code, but not including the Government Accountability
Office.
TITLE III--UNION TIME
SEC. 301. SHORT TITLE.
This title may be cited as the ``Ensuring Transparency,
Accountability, and Efficiency in Taxpayer-Funded Federal Union Time
Use Act''.
SEC. 302. PURPOSES.
The purposes of this title are as follows:
(1) An effective and efficient government keeps careful
track of how it spends the taxpayers' money and eliminates
unnecessary, inefficient, or unreasonable expenditures. To
advance this policy, executive branch employees should spend
their duty hours performing the work of the Federal Government
and serving the public.
(2) Federal law allows Federal employees to represent labor
organizations and perform other non-agency business while being
paid by American taxpayers (taxpayer-funded union time). The
Congress, however, has also instructed the executive branch to
interpret the law in a manner consistent with the requirements
of an effective and efficient government.
(3) To that end, agencies should ensure that taxpayer-
funded union time is used efficiently and authorized in amounts
that are reasonable, necessary, and in the public interest.
Federal employees should spend the clear majority of their duty
hours working for the public. No agency should pay for Federal
labor organizations' expenses, except where required by law.
Agencies should eliminate unrestricted grants of taxpayer-
funded union time and instead require employees to obtain
specific authorization before using such time. Agencies should
also monitor use of taxpayer-funded union time, ensure it is
used only for authorized purposes, and make information
regarding its use readily available to the public.
SEC. 303. DEFINITIONS.
For purposes of this title, the following definitions shall apply:
(1) Agency.--Except for purposes of section 305, the term
``agency'' has the meaning given the term in section 7103(a)(3)
of title 5, United States Code, but includes only executive
agencies. For purposes of section 305, the term ``agency'' has
the meaning given the term ``Executive agency'' in section 105
of title 5, United States Code, but excludes the Government
Accountability Office.
(2) Agency business.--The term ``agency business'' means
work performed by Federal employees, including detailees or
assignees, on behalf of an agency, but does not include work
performed on taxpayer-funded union time.
(3) Bargaining unit.--The term ``bargaining unit'' means a
group of employees represented by an exclusive representative
in an appropriate unit for collective bargaining under
subchapter II of chapter 71 of title 5, United States Code.
(4) Director.--The term ``Director'' means the Director of
the Office of Personnel Management.
(5) Discounted use of government property.--The term
``discounted use of government property'' means charging less
to use government property than the value of the use of such
property, as determined by the General Services Administration,
where applicable, or otherwise by the generally prevailing
commercial cost of using such property.
(6) Employee.--The term ``employee'' has the meaning given
the term in section 7103(a)(2) of title 5, United States Code,
except for purposes of section 305, in which case it means an
individual employed in an ``Executive agency'' as that term is
defined in section 105 of title 5, United States Code, but
excluding the Government Accountability Office.
(7) Grievance.--The term ``grievance'' has the meaning
given the term in section 7103(a)(9) of title 5, United States
Code.
(8) Labor organization.--The term ``labor organization''
has the meaning given the term in section 7103(a)(4) of title
5, United States Code.
(9) Paid time.--The term ``paid time'' means time for which
an employee is paid by the Federal Government, including both
duty time, in which the employee performs agency business, and
taxpayer-funded union time. It does not include time spent on
paid or unpaid leave, or an employee's off-duty hours.
(10) Taxpayer-funded union time.--The term ``taxpayer-
funded union time'' means official time granted to an employee
pursuant to section 7131 of title 5, United States Code.
(11) Union time rate.--The term ``union time rate'' means
the total number of duty hours in the fiscal year that
employees in a bargaining unit used for taxpayer-funded union
time, divided by the number of employees in such bargaining
unit.
SEC. 304. STANDARDS FOR REASONABLE AND EFFICIENT TAXPAYER-FUNDED UNION
TIME USAGE.
(a) In General.--No agency shall agree to authorize any amount of
taxpayer-funded union time under section 7131(d) of title 5, United
States Code, unless such time is reasonable, necessary, and in the
public interest. Notwithstanding such section 7131(d), agreements
authorizing taxpayer-funded union time that would cause the union time
rate in a bargaining unit to exceed 1 hour should ordinarily, taking
into account the size of the bargaining unit, and the amount of
taxpayer-funded union time anticipated to be granted under sections
7131(a) and 7131(c) of such title, not be considered reasonable,
necessary, and in the public interest, or to satisfy the ``effective
and efficient'' goal set forth in section 302 of this title and section
7101(b) of such title. Agencies shall commit the time and resources
necessary to strive for a negotiated union time rate of 1 hour or less,
and to fulfill their obligation to bargain in good faith.
(b) Report.--
(1) In general.--If an agency agrees to authorize amounts
of taxpayer-funded union time under section 7131(d) of title 5,
United States Code, that would cause the union time rate in a
bargaining unit to exceed 1 hour (or proposes to the Federal
Service Impasses Panel or an arbitrator engaging in interest
arbitration an amount that would cause the union time rate in a
bargaining unit to exceed 1 hour), the agency head shall report
this agreement or proposal to the President (through the
Director of the Office of Personnel Management), the Committee
on Oversight and Reform of the House of Representatives, and
the Committee on Homeland Security and Governmental Affairs
within 15 days of such an agreement or proposal. Such report
shall explain why such expenditures are reasonable, necessary,
and in the public interest, describe the benefit (if any) the
public will receive from the activities conducted by employees
on such taxpayer-funded union time, and identify the total cost
of such time to the agency. This reporting duty may not be
delegated.
(2) Notification.--Each agency head shall require relevant
subordinate agency officials to inform the agency head 5
business days in advance of presenting or accepting a proposal
that would result in a union time rate of greater than 1 hour
for any bargaining unit, if the subordinate agency officials
anticipate they will present or agree to such a provision.
(3) Exception.--The requirements of this subsection shall
not apply to a union time rate established pursuant to an order
of the Federal Service Impasses Panel or an arbitrator engaging
in interest arbitration, provided that the agency had proposed
that the Panel or arbitrator establish a union time rate of 1
hour or less.
(c) Application.--Nothing in this section shall be construed to
prohibit any agency from authorizing taxpayer-funded union time as
required under sections 7131(a) and 7131(c) of title 5, United States
Code, or to direct an agency to negotiate to include in a collective
bargaining agreement a term that precludes an agency from granting
taxpayer-funded union time pursuant to those provisions.
SEC. 305. EMPLOYEE CONDUCT WITH REGARD TO AGENCY TIME AND RESOURCES.
(a) In General.--To ensure that Federal resources are used
effectively and efficiently and in a manner consistent with both the
public interest and section 309, all employees shall adhere to the
following requirements:
(1) Employees may not engage in lobbying activities during
paid time, except in their official capacities as an employee.
(2)(A) Except as provided in subparagraph (B), employees
shall spend at least three-quarters of their paid time,
measured each fiscal year, performing agency business or
attending necessary training (as required by their agency), in
order to ensure that they develop and maintain the skills
necessary to perform their agency duties efficiently and
effectively.
(B) Employees who have spent one-quarter of their paid time
in any fiscal year on non-agency business may continue to use
taxpayer-funded union time in that fiscal year for purposes
covered by sections 7131(a) or 7131(c) of title 5, United
States Code.
(C) Any time in excess of one-quarter of an employee's paid
time used to perform non-agency business in a fiscal year shall
count toward the limitation set forth in subparagraph (A) in
subsequent fiscal years.
(3) No employee, when acting on behalf of a Federal labor
organization, may be permitted the free or discounted use of
government property or any other agency resources if such free
or discounted use is not generally available for non-agency
business by employees when acting on behalf of non-Federal
organizations. Such property and resources include office or
meeting space, reserved parking spaces, phones, photocopy
machines, computers, and computer systems.
(4) Employees may not be permitted reimbursement for
expenses incurred performing non-agency business, unless
required by law or regulation.
(5)(A) Employees may not use taxpayer-funded union time to
prepare or pursue grievances (including arbitration of
grievances) brought against an agency under procedures
negotiated pursuant to section 7121 of title 5, United States
Code, except where such use is otherwise authorized by law or
regulation.
(B) The prohibition in subparagraph (A) does not apply to--
(i) an employee using taxpayer-funded union time to
prepare for, confer with an exclusive representative
regarding, or present a grievance brought on the
employee's own behalf; or to appear as a witness in any
grievance proceeding; or
(ii) an employee using taxpayer-funded union time
to challenge an adverse personnel action taken against
the employee in retaliation for engaging in federally
protected whistleblower activity, including for
engaging in activity protected under section 2302(b)(8)
of title 5, United States Code, under section 78u-
6(h)(1) of title 15, United States Code, under section
3730(h) of title 31, United States Code, or under any
other similar whistleblower law.
(b) Advance Authorization.--Employees may not use taxpayer-funded
union time without advance written authorization from their agency,
except where obtaining prior approval is deemed impracticable under
regulations or guidance adopted pursuant to subsection (c).
(c) Administration.--
(1) In general.--The requirements of this section shall
become effective 45 days after the date of enactment of this
Act. The Office of Personnel Management shall be responsible
for administering the requirements of this section. Not later
than 45 days after the date of enactment of this Act, the
Director shall examine whether existing regulations are
consistent with the rules set forth in this section. If the
regulations are not, the Director shall propose for notice and
public comment, as soon as practicable, appropriate regulations
to clarify and assist agencies in implementing these rules,
consistent with applicable law.
(2) Agency compliance.--The head of each agency is
responsible for ensuring compliance by employees within such
agency with the requirements of this section. Each agency head
shall examine whether existing regulations, policies, and
practices are consistent with the rules set forth in this
section. If they are not, the agency head shall take all
appropriate steps to bring them into compliance with this
section as soon as practicable.
(d) Application.--Nothing in this title shall be construed to
prohibit agencies from permitting employees to take unpaid leave to
perform representational activities under chapter 71 of title 5, United
States Code, including for purposes covered by section 7121(b)(1)(C) of
such title.
SEC. 306. PREVENTING UNLAWFUL OR UNAUTHORIZED EXPENDITURES.
(a) In General.--Any employee who uses taxpayer-funded union time
without advance written agency authorization required by section
305(b), or for purposes not specifically authorized by the agency,
shall be considered absent without leave and subject to appropriate
disciplinary action. Repeated misuse of taxpayer-funded union time may
constitute serious misconduct that impairs the efficiency of the
Federal service. In such instances, agencies shall take appropriate
disciplinary action to address such misconduct.
(b) Procedure for Authorizing Union Time.--As soon as practicable,
but not later than 180 days after the date of enactment of this Act,
each agency shall develop and implement a procedure governing the
authorization of taxpayer-funded union time under section 305(b). Such
procedure shall, at a minimum, require a requesting employee to specify
the number of taxpayer-funded union time hours to be used and the
specific purposes for which such time will be used, providing
sufficient detail to identify the tasks the employee will undertake.
That procedure shall also allow the authorizing official to assess
whether it is reasonable, necessary, and in the public interest to
grant such amount of time to accomplish such tasks. For continuing or
ongoing requests, each agency shall require requests for authorization
renewals to be submitted not less than once per pay period. Each agency
shall further require separate advance authorization for any use of
taxpayer-funded union time in excess of previously authorized hours or
for purposes for which such time was not previously authorized.
(c) Monitoring Use of Union Time.--As soon as practicable, but not
later than 180 days after the date of enactment of this Act, each
agency shall develop and implement a system to monitor the use of
taxpayer-funded union time to ensure that it is used only for
authorized purposes, and that it is not used contrary to law or
regulation. In developing these systems, each agency shall give special
attention to ensuring taxpayer-funded union time is not used for--
(1) internal union business in violation of section 7131(b)
of title 5, United States Code;
(2) lobbying activities in violation of section 1913 of
title 18, United States Code, or in violation of section
305(a)(1) of this title; or
(3) political activities in violation of subchapter III of
chapter 73 of title 5, United States Code.
SEC. 307. AGENCY REPORTING REQUIREMENTS.
(a) In General.--Each agency shall submit, by a date as determined
by the Director, an annual report to the Director, the Committee on
Oversight and Reform of the House of Representatives, and the Committee
on Homeland Security and Governmental Affairs on the following:
(1) The purposes for which the agency has authorized the
use of taxpayer-funded union time, and the amounts of time used
for each such purpose.
(2) The job title and total compensation of each employee
who has used taxpayer-funded union time in the fiscal year, as
well as the total number of hours each employee spent on these
activities and the proportion of each employee's total paid
hours that number represents.
(3) If the agency has allowed labor organizations or
individuals on taxpayer-funded union time the free or
discounted use of government property, the total value of such
free or discounted use.
(4) Any expenses, including travel or per diem expenses,
the agency paid for activities conducted on taxpayer-funded
union time.
(5) The amount of any reimbursement paid by the labor
organizations for the use of government property.
(b) Notification; Report.--
(1) Notification.--Agencies shall notify the Interagency
Labor Relations Working Group (established under title IV of
this Act) if a bargaining unit's union time rate exceeds 1
hour.
(2) Report.--Not later than 1 year after the date of
enactment of this Act and annually thereafter, the Director
shall submit, to the Committee on Oversight and Reform of the
House of Representatives and the Committee on Homeland Security
and Governmental Affairs, a report summarizing the number and
contents of notifications received under paragraph (1) during
the previous year.
(c) Explanation.--If an agency's aggregate union time rate (defined
in this subsection as the average of the union time rates in each
agency bargaining unit, weighted by the number of employees in each
unit) has increased overall from the last fiscal year, the agency shall
explain this increase in the report required under subsection (a).
SEC. 308. PUBLIC DISCLOSURE AND TRANSPARENCY.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, the Director shall publish a standardized form
that each agency shall use in preparing the reports required by section
307.
(b) Analysis.--Not later than June 30 of each year, the Director
shall analyze the agency submissions under section 307 and publish an
annual report detailing--
(1) for each agency and for agencies in the aggregate, the
number of employees using taxpayer-funded union time, the
number of employees using taxpayer-funded union time separately
listed by intervals of the proportion of paid time spent on
such activities, the number of hours spent on taxpayer-funded
union time, the cost of taxpayer-funded union time (measured by
the compensation of the employees involved), the aggregate
union time rate, the number of bargaining unit employees, and
the percentage change in each of these values from the previous
fiscal year;
(2) for each agency and in the aggregate, the value of the
free or discounted use of any government property the agency
has provided to labor organizations, and any expenses, such as
travel or per diems, the agency paid for activities conducted
on taxpayer-funded union time, as well as the amount of any
reimbursement paid for such use of government property, and the
percentage change in each of these values from the previous
fiscal year;
(3) the purposes for which taxpayer-funded union time was
granted; and
(4) the information required by section 307(a)(2) for
employees using taxpayer-funded union time, sufficiently
aggregated that such disclosure would not unduly risk
disclosing information protected by law, including personally
identifiable information.
(c) Additional Guidance.--The Director shall, after consulting with
the Chief Human Capital Officers designated under chapter 14 of title
5, United States Code, promulgate any additional guidance that may be
necessary or appropriate to assist the heads of agencies in complying
with the requirements of this title.
SEC. 309. IMPLEMENTATION AND RENEGOTIATION OF COLLECTIVE BARGAINING
AGREEMENTS.
(a) In General.--Each agency shall implement the requirements of
this title not later than 45 days after the date of enactment of this
Act, except for section 305(b), which shall be effective for employees
at an agency when such agency implements the procedure required by
section 306(b). The head of each agency shall designate an official
within the agency tasked with ensuring implementation of this title,
and shall report the identity of such official to the Office of
Personnel Management not later than 30 days after the date of enactment
of this Act.
(b) Consultation.--Each agency shall consult with employee labor
representatives about the implementation of this title. On the earliest
date permitted by law, and to effectuate the terms of this title, any
agency that is party to a collective bargaining agreement that has at
least one provision that is inconsistent with any part of this title
shall give any contractually required notice of its intent to alter the
terms of such agreement and either reopen negotiations and negotiate to
obtain provisions consistent with this title, or subsequently terminate
such provision and implement the requirements of this title.
(c) Application.--Nothing in this title shall abrogate any
collective bargaining agreement in effect on the date of enactment of
this title.
TITLE IV--COST REDUCING IN COLLECTIVE BARGAINING
SEC. 401. SHORT TITLE.
This title may be cited as the ``Developing Efficient, Effective,
and Cost-Reducing Approaches to Federal Sector Collective Bargaining
Act''.
SEC. 402. FINDINGS.
Congress finds the following:
(1) Section 7101(b) of title 5, United States Code,
requires the Federal Service Labor-Management Relations Statute
(in this section referred to as the ``Statute'') to be
interpreted in a manner consistent with the requirement of an
effective and efficient Government. Unfortunately,
implementation of the Statute has fallen short of these goals.
CBAs and other agency agreements with collective bargaining
representatives often make it harder for agencies to reward
high performers, hold low performers accountable, or flexibly
respond to operational needs. Many agencies and collective
bargaining representatives spend years renegotiating CBAs, with
taxpayers paying for both sides' negotiators. Agencies must
also engage in prolonged negotiations before making even minor
operational changes, like relocating office space.
(2) The Federal Government must do more to apply the
Statute in a manner consistent with effective and efficient
Government.
(3) To fulfill this obligation, agencies should secure CBAs
that--
(A) promote an effective and efficient means of
accomplishing agency missions;
(B) encourage the highest levels of employee
performance and ethical conduct;
(C) ensure employees are accountable for their
conduct and performance on the job;
(D) expand agency flexibility to address
operational needs;
(E) reduce the cost of agency operations, including
with respect to the use of taxpayer-funded union time;
(F) are consistent with applicable laws, rules, and
regulations;
(G) do not cover matters that are not, by law,
subject to bargaining; and
(H) preserve management rights under section
7106(a) of title 5, United States Code.
(4) Further, agencies that form part of an effective and
efficient Government should not take more than a year to
renegotiate CBAs.
SEC. 403. DEFINITIONS.
For purposes of this title:
(1) CBA.--The term ``CBA'' means a collective bargaining
agreement of a fixed or indefinite duration reached through
substantive bargaining, as opposed to--
(A) agreements reached through impact and
implementation bargaining pursuant to sections
7106(b)(2) and 7106(b)(3) of title 5, United States
Code; or
(B) mid-term agreements, negotiated while the basic
comprehensive labor contract is in effect, about
subjects not included in such contract.
(2) Director.--The term ``Director'' means the Director of
the Office of Personnel Management.
(3) Taxpayer-funded union time.--The term ``taxpayer-funded
union time'' means time granted to a Federal employee to
perform non-agency business during duty hours pursuant to
section 7131 of title 5, United States Code.
SEC. 404. INTERAGENCY LABOR RELATIONS WORKING GROUP.
(a) In General.--There is hereby established an Interagency Labor
Relations Working Group (referred to in this title as the ``Labor
Relations Group'').
(b) Organization.--The Labor Relations Group shall consist of--
(1) the Director of the Office of Personnel Management;
(2) a representative who is a supervisor or a management
official described under section 7103(a)(2)(B)(iii) of title 5,
United States Code, from each agency participating in the Labor
Relations Group under subsection (d), as determined by the head
of such agency in consultation with the Director; and
(3) any employee who is such a supervisor or a management
official within the Office of Personnel Management, as assigned
by the Director.
(c) Chair; Administrative Support.--The Director shall chair the
Labor Relations Group and, subject to the availability of
appropriations, provide administrative support for the Labor Relations
Group.
(d) Agencies.--
(1) Participation.--Agencies with at least 1,000 employees
represented by a collective bargaining representative pursuant
to chapter 71 of title 5, United States Code, shall participate
in the Labor Relations Group. Agencies with a smaller number of
employees represented by a collective bargaining representative
may, at the election of their agency head and with the
concurrence of the Director, participate in the Labor Relations
Group.
(2) Support.--Agencies participating in the Labor Relations
Group shall provide assistance helpful in carrying out the
responsibilities outlined in subsection (e) of this section.
Such assistance shall include designating an agency employee to
serve as a point of contact with the Office of Personnel
Management responsible for providing the Labor Relations Group
with sample language for proposals and counterproposals on
significant matters proposed for inclusion in CBAs, as well as
for analyzing and discussing with the Office of Personnel
Management and the Labor Relations Group the effects of
significant CBA provisions on agency effectiveness and
efficiency. Participating agencies shall provide other
assistance as necessary to support the Labor Relations Group in
its mission.
(e) Responsibilities and Functions.--The Labor Relations Group
shall assist the Director on matters involving labor-management
relations in the executive branch. Its responsibilities shall include
the following:
(1) Gathering information to support agency negotiating
efforts, including the submissions required under section 409
of this title, and creating an inventory of language on
significant subjects of bargaining that have relevance to more
than one agency and that have been proposed for inclusion in at
least one CBA.
(2) Developing model ground rules for negotiations that, if
implemented, would minimize delay, set reasonable limits for
good-faith negotiations, call for the Federal Mediation and
Conciliation Service to mediate disputed issues not resolved
within a reasonable time, and, as appropriate, promptly bring
remaining unresolved issues to the Federal Service Impasses
Panel (in this title referred to as the ``Panel'') for
resolution.
(3) Analyzing provisions of CBAs on subjects of bargaining
that have relevance to more than one agency, particularly those
that may infringe on, or otherwise affect, reserved management
rights. Such analysis shall include an assessment of CBA
provisions that cover comparable subjects, without infringing,
or otherwise affecting, reserved management rights. The
analysis shall also assess the consequences of such CBA
provisions on Federal effectiveness, efficiency, cost of
operations, and employee accountability and performance. The
analysis shall take particular note of how certain provisions
may impede the policies set forth in section 402 of this title
or the orderly implementation of laws, rules, or regulations.
The Labor Relations Group may examine general trends and
commonalities across CBAs, and their effects on bargaining-unit
operations, but need not separately analyze every provision of
each CBA in every Federal bargaining unit.
(4) Sharing information and analysis, including significant
proposals and counterproposals offered in bargaining, in order
to reduce duplication of efforts and encourage common
approaches across agencies, as appropriate.
(5) Establishing ongoing communications among agencies
engaging with the same labor organizations in order to
facilitate common solutions to common bargaining initiatives.
(6) Assisting the Director in developing, where
appropriate, Government-wide approaches to bargaining issues
that advance the policies set forth in section 402 of this
title.
(f) Report.--Not later than 18 months after the first meeting of
the Labor Relations Group, the Director, as the Chair of the group,
shall submit, to the President (through the Office of Management and
Budget), the Committee on Oversight and Reform of the House of
Representatives, and the Committee on Homeland Security and
Governmental Affairs of the Senate, a report proposing recommendations
for meeting the goals set forth in section 402 of this title and for
improving the organization, structure, and functioning of labor
relations programs across agencies.
SEC. 405. COLLECTIVE BARGAINING OBJECTIVES.
(a) In General.--The head of each agency that engages in collective
bargaining under chapter 71 of title 5, United States Code, shall
direct appropriate officials within each agency to prepare a report on
all operative CBAs at least 1 year before their expiration or renewal
date. The report shall recommend new or revised CBA language the agency
could seek to include in a renegotiated agreement that would better
support the objectives of section 402 of this title. The officials
preparing the report shall consider the analysis and advice of the
Labor Relations Group in making recommendations for revisions. These
reports shall be deemed guidance and advice for agency management
related to collective bargaining under section 7114(b)(4)(C) of title
5, United States Code, and thus not subject to disclosure to the
exclusive representative or its authorized representative.
(b) CBA Negotiation Requirements.--Consistent with the requirements
and provisions of chapter 71 of title 5, United States Code, and other
applicable laws and regulations, an agency, when negotiating with a
collective bargaining representative, shall--
(1) establish collective bargaining objectives that advance
the policies of section 402 of this title, with such objectives
informed, as appropriate, by the reports required by subsection
(a) of this section;
(2) consider the analysis and advice of the Labor Relations
Group in establishing these collective bargaining objectives
and when evaluating collective bargaining representative
proposals;
(3) make every effort to secure a CBA that meets these
objectives; and
(4) ensure management and supervisor participation in the
negotiating team representing the agency.
SEC. 406. COLLECTIVE BARGAINING PROCEDURES.
(a) In General.--To achieve the purposes of this title, agencies
shall begin collective bargaining negotiations by making their best
effort to negotiate ground rules that minimize delay, set reasonable
time limits for good-faith negotiations, call for Federal Mediation and
Conciliation Service mediation of disputed issues not resolved within
those time limits, and, as appropriate, promptly bring remaining
unresolved issues to the Panel for resolution. For collective
bargaining negotiations, a negotiating period of six weeks or less to
achieve ground rules, and a negotiating period of between four and six
months for a CBA under those ground rules, shall ordinarily be
considered reasonable and to satisfy the goal set forth in section
402(3)(A) of this title. Agencies shall commit the time and resources
necessary to satisfy these temporal objectives and to fulfill their
obligation to bargain in good faith. Any negotiations to establish
ground rules that do not conclude after a reasonable period shall be
expeditiously advanced to mediation and, as necessary, to the Panel.
(b) Negotiations Deadlines.--During any collective bargaining
negotiations under chapter 71 of title 5, United States Code, and
consistent with section 7114(b) of that chapter, the agency shall
negotiate in good faith to reach agreement on a CBA, memorandum of
understanding, or any other type of binding agreement that promotes the
policies outlined in section 402 of this title. If such negotiations
last longer than the period established by the CBA ground rules--or,
absent a preset deadline, a reasonable time--the agency shall consider
whether requesting assistance from the Federal Mediation and
Conciliation Service and, as appropriate, the Panel, would better
promote effective and efficient Government than would continuing
negotiations. Such consideration should evaluate the likelihood that
continuing negotiations without Federal Mediation and Conciliation
Service assistance or referral to the Panel would produce an agreement
consistent with the goals of section 402 of this title, as well as the
cost to the public of continuing to pay for both agency and collective
bargaining representative negotiating teams. Upon the conclusion of the
sixth month of any negotiation, the agency head shall receive notice
from appropriate agency staff and shall receive monthly notifications
thereafter regarding the status of negotiations until they are
complete. The agency head shall notify the President through the Office
of Personnel Management of any negotiations that have lasted longer
than nine months, in which the assistance of the Federal Mediation and
Conciliation Service either has not been requested or, if requested,
has not resulted in agreement or advancement to the Panel.
(c) Failure To Negotiate in Good Faith.--If the commencement or any
other stage of bargaining is delayed or impeded because of a collective
bargaining representative's failure to comply with the duty to
negotiate in good faith pursuant to section 7114(b) of title 5, United
States Code, the agency shall consider whether to--
(1) file an unfair labor practice complaint under section
7118 of title 5, United States Code, after considering evidence
of bad-faith negotiating, including refusal to meet to bargain,
refusal to meet as frequently as necessary, refusal to submit
proposals or counterproposals, undue delays in bargaining,
undue delays in submission of proposals or counterproposals,
inadequate preparation for bargaining, and other conduct that
constitutes bad-faith negotiating; or
(2) propose a new contract, memorandum, or other change in
agency policy and implement that proposal if the collective
bargaining representative does not offer counterproposals in a
timely manner.
(d) No Delay for Unfair Labor Practice Complaint.--An agency's
filing of an unfair labor practice complaint under section 7118 of
title 5, United States Code, against a collective bargaining
representative shall not further delay negotiations. Agencies shall
negotiate in good faith or request assistance from the Federal
Mediation and Conciliation Service and, as appropriate, the Panel,
while such an unfair labor practice complaint is pending.
(e) Written Proposal Exchange.--In developing proposed ground
rules, and during any negotiations, agency negotiators shall request
the exchange of written proposals, so as to facilitate resolution of
negotiability issues and assess the likely effects of specific
proposals on agency operations and management rights. To the extent
that an agency's CBAs, ground rules, or other agreements contain
requirements for a bargaining approach other than the exchange of
written proposals addressing specific issues, the agency shall, at the
soonest opportunity, take steps to eliminate them. If such requirements
are based on now-revoked Executive orders, including Executive Order
12871 (58 Fed. Reg. 52201; relating to Labor-Management Partnerships)
and Executive Order 13522 (74 Fed. Reg. 66203; relating to Creating
Labor-Management Forums to Improve Delivery of Government Services),
agencies shall take action to rescind these requirements.
(f) Agreement Review.--Pursuant to section 7114(c)(2) of title 5,
United States Code, the agency head shall review all binding agreements
with collective bargaining representatives to ensure that all their
provisions are consistent with all applicable laws, rules, and
regulations. When conducting this review, the agency head shall
ascertain whether the agreement contains any provisions concerning
subjects that are non-negotiable, including provisions that violate
Government-wide requirements set forth in any applicable law, rule, or
regulation. If an agreement contains any such provisions, the agency
head shall disapprove such provisions. The agency head shall take all
practicable steps to render the determinations required by this
subsection within 30 days of the date the agreement is executed, in
accordance with section 7114(c) of title 5, United States Code, so as
not to permit any part of an agreement to become effective that is
contrary to applicable law, rule, or regulation.
SEC. 407. PERMISSIVE BARGAINING.
The heads of agencies subject to the provisions of chapter 71 of
title 5, United States Code, may not negotiate over the substance of
the subjects set forth in section 7106(b)(1) of title 5, United States
Code, and shall instruct subordinate officials that they may not
negotiate over those same subjects.
SEC. 408. EFFICIENT BARGAINING OVER PROCEDURES AND APPROPRIATE
ARRANGEMENTS.
(a) Matters Covered by Existing Agreements.--Before beginning
negotiations during a CBA over matters addressed by sections 7106(b)(2)
or 7106(b)(3) of title 5, United States Code, agencies shall evaluate
whether or not such matters are already covered by the CBA and
therefore are not subject to the duty to bargain. If such matters are
already covered by a CBA, the agency shall not bargain over such
matters.
(b) Permissible Bargaining.--Consistent with section 402 of this
title, agencies that engage in bargaining over procedures pursuant to
section 7106(b)(2) of title 5, United States Code, shall, consistent
with their obligation to negotiate in good faith, bargain over only
those items that constitute procedures associated with the exercise of
management rights, which do not include measures that excessively
interfere with the exercise of such rights. Likewise, consistent with
section 402 of this title, agencies that engage in bargaining over
appropriate arrangements pursuant to section 7106(b)(3) of title 5,
United States Code, shall, consistent with their obligation to
negotiate in good faith, bargain over only those items that constitute
appropriate arrangements for employees adversely affected by the
exercise of management rights. In such negotiations, agencies shall
ensure that a resulting appropriate arrangement does not excessively
interfere with the exercise of management rights.
SEC. 409. PUBLIC ACCESSIBILITY.
(a) Report CBAs.--Each agency subject to chapter 71 of title 5,
United States Code, that engages in any negotiation with a collective
bargaining representative, as defined therein, shall submit to the
Director each CBA currently in effect and its expiration date. Such
agency shall also submit any new CBA and its expiration date to the
Director within 30 days of its effective date, and submit new arbitral
awards to the Director within 10 business days of receipt. The Director
shall make each CBA publicly accessible on the internet as soon as
practicable.
(b) CBA Report Format.--Within 90 days of the date of enactment of
this Act, the Director shall prescribe a reporting format for
submissions required by subsection (a) of this section. Within 30 days
of the Director's having prescribed the reporting format, agencies
shall use this reporting format and make the submissions required under
subsection (a) of this section.
SEC. 410. LACK OF REPORT.
The failure to produce a report for the agency head prior to the
termination or renewal of a CBA under section 405(a) shall not prevent
an agency from opening a CBA for renegotiation.
SEC. 411. APPLICATION.
Nothing in this title shall abrogate any collective bargaining
agreement in effect on the date of enactment of this title.
<all>
Introduced in House
Introduced in House
Sponsor introductory remarks on measure. (CR H3749)
Referred to the House Committee on Oversight and Reform.
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