Homeland Security: Final Regulations for the Department of Homeland Security Human Resources Management System (Subpart E) Compared With Current Law

CRS Report for Congress
Homeland Security: Final Regulations for the
Department of Homeland Security Human
Resources Management System (Subpart E)
Compared With Current Law
Updated February 9, 2005
Jon O. Shimabukuro
Legislative Attorney
American Law Division


Congressional Research Service ˜ The Library of Congress

Homeland Security: Final Regulations for the
Department of Homeland Security Human Resources
Management System (Subpart E) Compared With
Current Law
Summary
On February 1, 2005, final regulations to implement a new human resources
management system for the Department of Homeland Security (“DHS”) were
published. The regulations provide for the organization of the new personnel system,
describing, among other topics, the use of pay bands, how jobs will be evaluated, and
how pay will be administered. In addition, subpart E of the final regulations defines
the department’s labor relations system. This report compares the provisions of the
final regulations with similar provisions from title 5, chapter 71 of the U.S. Code.
Although the collective bargaining rights for employees of DHS will be subject to the
new regulations, such rights for most federal employees are otherwise governed by
5 U.S.C. chapter 71. While some of the differences involve simply a change in
diction, other changes are more significant. The establishment of a Homeland
Security Labor Relations Board that will perform many of the duties otherwise
undertaken by the Federal Labor Relations Authority, as well as a redefining of what
constitutes certain unfair labor practices are examples of these more noteworthy
changes. The regulations take effect on March 3, 2005.



Contents
In troduction ..................................................1
List of Tables
Department of Homeland Security Human Resources Management System
Comparison of Current Law and the Final Regulations.................3



Homeland Security: Final Regulations for
the Department of Homeland Security
Human Resources Management System
(Subpart E) Compared With Current Law
Introduction
Under 5 U.S.C. § 9701(a), the Secretary of Homeland Security may, in
regulations prescribed jointly with the Director of the Office of Personnel
Management (“OPM”), “establish, and from time to time adjust, a human resources
management system for some or all of the organizational units of the Department of
Homeland Security.” On February 20, 2004, proposed regulations to implement a
new human resources management system for the Department of Homeland
Security(“DHS”) were published.1 DHS and OPM received over 3,800 comments2
on the proposed regulations during the public comment period. Final regulations
were published on February 1, 2005.
The final regulations provide for the organization of the new personnel system,
describing, among other topics, the use of pay bands, how jobs will be evaluated, and
how pay will be administered. In addition, subpart E of the final regulations defines
the department’s labor relations system. Subpart E implements the requirements of
5 U.S.C. § 9701(b) by “ensuring the right of employees to organize, bargain
collectively, and participate through labor organizations of their own choosing in
decisions which affect them, subject to the limitations on negotiability established in
law, including the authority that Congress delegated to OPM and DHS to promulgate
[the] regulations.”3
While the collective bargaining rights of most federal employees are governed
by the provisions of title 5, chapter 71 of the U.S. Code, such rights for employees
of DHS will be subject to the regulations issued by the department and OPM. Title
5 U.S.C. chapter 71 was not among the provisions that were deemed nonwaivable by
the Homeland Security Act.4 This report compares the provisions of the final
regulations with similar provisions from 5 U.S.C. chapter 71. While some of the
differences involve simply a change in diction, other changes are more significant.


1 Department of Homeland Security Human Resources Management System, 69 Fed. Reg.

8030 (proposed Feb. 20, 2004) (to be codified at 5 C.F.R. pt. 9701).


2 Department of Homeland Security Human Resources Management System, 70 Fed. Reg.

5272, 5275 (Feb. 1, 2005) (to be codified at 5 C.F.R. pt. 9701).


3 69 Fed. Reg. at 8040-41.
4 See 5 U.S.C. § 9701(b)(3), (c).

The establishment of a Homeland Security Labor Relations Board that will perform
many of the duties otherwise undertaken by the Federal Labor Relations Authority,
as well as a redefining of what constitutes certain unfair labor practices are examples
of these more noteworthy changes. The regulations take effect on March 3, 2005.



Department of Homeland Security
Human Resources Management System
Comparison of Current Law and the Final Regulations
Current LawFinal DHS Regulations
5 U.S.C. § 7103(a)(14) - Definition of5 C.F.R. § 9701.504 - Definition of
“Conditions of Employment”“Conditions of Employment”
Excludes from the definition policies,Excludes from the definition policies,
practices, and matters (1) relating topractices, and matters (1) relating to
political activities prohibited under 5political activities prohibited under 5
U.S.C. chapter 73, subchapter III; (2)U.S.C. chapter 73, subchapter III; (2)
relating to the classification of anyrelating to the classification of any
position; or (3) specifically provided forposition, including any classification
by Federal statute.determinations under subpart B of part
9701; (3) relating to the pay of any
position, including any determinations
regarding pay or adjustments thereto
under subpart C of part 9701; or (4)
specifically provided for by federal
statute.
5 U.S.C. § 7103(a)(9) - Definition of5 C.F.R. § 9701.504 - Definition of
“Grievance” “Grievance”
A “grievance” means any complaint (1)A “grievance” means any complaint (1)
by any employee concerning any matterby any employee concerning any matter
relating to the employment of therelating to the conditions of employment
employee; (2) by any labor organizationof the employee; (2) by any labor
concerning any matter relating to theorganization concerning any matter
employment of any employee; or (3) byrelating to the conditions of employment
any employee, labor organization, orof any employee; or (3) by any employee,
agency concerning either the effect orlabor organization, or agency concerning
interpretation or claim of breach of aeither the effect or interpretation or claim
collective bargaining agreement, or anyof breach of a collective bargaining
claimed violation, misinterpretation, oragreement, or any claimed violation,
misapplication of any law, rule, ormisinterpretation, or misapplication of
regulation affecting conditions ofany law, rule, or regulation issued for the
employment.purpose of affecting conditions of
employment (emphasis added).
5 U.S.C. § 7103(a)(11) - Definition of5 C.F.R. § 9701.504 - Definition of
“Management Official”“Management Official”
Defines the term to mean an individualDefines the term to mean an individual
employed by an agency in a position theemployed by the Department in a position
duties and responsibilities of whichthe duties and responsibilities of which
require or authorize the individual torequire or authorize the individual to
formulate, determine, or influence theformulate, determine, or influence the
policies of the agency.policies of the Department or who has the
authority to recommend such action, if
the exercise of the authority is not merely
routine or clerical in nature, but requires



Current LawFinal DHS Regulations
the consistent exercise of independent
judgment.
5 U.S.C. § 7103(a)(2) - Definition of5 C.F.R. § 9701.505 - Coverage
“Employee”
Subpart E of part 9701 applies to eligible
The term “employee” means anDHS employees, subject to a
individual (1) employed in an agency, ordetermination by the Secretary or
(2) whose employment in an agency hasdesignee under 5 C.F.R. § 9701.102(b).
ceased because of any unfair laborDHS employees who would otherwise be
practice under 5 U.S.C. § 7116 and whocovered by 5 U.S.C. chapter 71 are
has not obtained any other regular andeligible for coverage under subpart E. An
substantially equivalent employment, asemployee whose employment has ceased
determined under regulations prescribedbecause of an unfair labor practice and
by the FLRA.who has not obtained any other regular
and substantially equivalent employment
The term “employee” does not includeis also covered.
the following:
(1) an alien or noncitizen of the U.S. whoSubpart E does not apply to the
occupies a position outside of the U.S.;following:
(2) a member of the uniformed services;(1) an alien or noncitizen of the U.S. who
(3) a supervisor or a management official;occupies a position outside of the U.S.;
(4) an officer or employee in the Foreign(2) a member of the uniformed services;
Service of the U.S. employed in the Dept.(3) a supervisor or management official;
of State, the International(4) an individual who participates in a
Communication Agency, the Agency forstrike in violation of 5 U.S.C. § 7311;
International Development, the Dept. of(5) an employee of the U.S. Secret
Agriculture, or the Dept. of Commerce;Service, including the U.S. Secret Service
orUniformed Division;
(5) any person who participates in a strike(6) an employee of the Transportation
in violation of 5 U.S.C. § 7311.Security Administration; or
(7) an employee excluded pursuant to 5
C.F.R. § 9701.514 or any other legal
authority.
No similar provision involving a5 C.F.R. § 9701.508 - Homeland Security
Homeland Security Labor RelationsLabor Relations Board
Board.
Provides for a Homeland Security Labor
Relations Board composed of three
members, each of whom would be
appointed for a term not to exceed three
years, except when extended to provide
for an orderly transition. The members
of the Board are appointed by the
Secretary.



Current LawFinal DHS Regulations
No similar provision dealing with a5 C.F.R. § 9701.509 - Powers and Duties
Homeland Security Labor Relationsof the Board
Board. 5 U.S.C. § 7105 identifies the
powers and duties of the Federal LaborThe Board is responsible for resolving
Relations Authority (“FLRA”), many ofissues related to the scope of bargaining
which would be held by the Homelandand the duty to bargain in good faith;
Security Labor Relations Board.conducting hearings and resolving
complaints of unfair labor practices
involving the duty to bargain in good
faith, and strikes, work stoppages,
slowdowns, picketing, or condoning such
activities by failing to take action;
resolving exceptions to arbitration
awards; resolving negotiation impasses;
and conducting de novo review of legal
conclusions involving all matters within
its jurisdiction.
The Board may assume jurisdiction over
any matter concerning DHS employees
that has been submitted to the FLRA
pursuant to 5 C.F.R. § 9701.510 if it
determines that the matter affects
homeland security. The Board may also
issue department-wide opinions, which
may be appealed in accordance with 5
C.F.R. § 9701.508(h). The Board may
consult with the FLRA when issuing such
opinions.
5 U.S.C. § 7105 - Powers and Duties of5 C.F.R. § 9701.510 - Powers and Duties
the FLRAof the FLRA
The FLRA is authorized to determineAuthorizes the FLRA to determine the
whether a bargaining unit is appropriate,appropriateness of bargaining units
supervise or conduct elections topursuant to 5 C.F.R. § 9701.514;
determine whether a labor organizationsupervise or conduct elections to
has been selected as an exclusivedetermine whether a labor organization
representative by a majority ofhas been selected as an exclusive
employees, prescribe criteria and resolverepresentative by a majority of
issues related to the granting of nationalemployees; and otherwise administer the
consultation rights, prescribe criteria andprovisions of 5 U.S.C. § 7111 relating to
resolve issues related to determiningthe according of exclusive recognition to
compelling need for agency rules orlabor organizations, which are modified
regulations, resolve issues related to theto apply to this section.
duty to bargain in good faith, conduct
hearings and resolve complaints of unfairThe FLRA may conduct hearings and
labor practices, resolve exceptions toresolve complaints of unfair labor
arbitration awards, and take such otherpractices under 5 C.F.R. § 9701.517(a)(1)
actions as are necessary and appropriatethrough (4) and (b)(1) through (4), and in
to administer the provisions of 5 U.S.C.accordance with the provisions of 5
chapter 71.U.S.C. § 7118, which is modified to
apply to this section.



Current LawFinal DHS Regulations
5 U.S.C. § 7106 - Management Rights5 C.F.R. § 9701.511 - Management
Rights
Management officials retain the authority
to determine the mission, budget,Expands existing management rights to
organization, number of employees, andinclude
internal security practices of an agency. (1) the ability to determine the numbers,
In accordance with applicable laws,types, grades, or occupational clusters
management officials also retain theand bands of employees or positions
authority toassigned to any organizational
(1) hire, assign, direct, layoff, and retainsubdivision, work project or tour of duty,
employees in the agency, or to suspend,and the technology, methods, and means
remove, reduce in grade or pay, or takeof performing work;
other disciplinary action against such(2) the ability to assign and deploy
employees;employees to meet operational demand;
(2) assign work, make determinationsand
with respect to contracting out, and(3) the ability to take whatever other
determine the personnel by which agencyactions may be necessary to carry out
operations shall be conducted;DHS’s mission.
(3) with respect to filling positions, make
selections for appointments from amongManagement is prohibited from
properly ranked and certified candidatesbargaining over the exercise of its
for promotion or from any otherauthorities under 5 C.F.R. § 9701.511(a)
appropriate source; andor the procedures that it will observe in
(4) take whatever actions may beexercising its authorities under 5 C.F.R. §
necessary to carry out the agency mission9701.511(a)(1) and (2) (e.g., assignments,
during emergencies.deployments, other actions necessary to
carrying out DHS’s mission). However,
An agency and a labor organization aremanagement will confer with an
not precluded from negotiating, at theexclusive representative over such
election of the agency, the numbers,procedures.
types, and grades of employees or
positions assigned to any organizationalManagement and an exclusive
subdivision, work project, or tour of duty,representative will bargain at the level of
or on the technology, methods, andrecognition, unless otherwise determined
means of performing work.by the parties, over appropriate
arrangements for employees adversely
An agency and a labor organization areaffected by the exercise of management’s
not precluded from negotiating overauthority under 5 C.F.R. § 9701.511(a)(3)
procedures which management officials(e.g., lay offs, suspensions, removals,
of the agency will observe in exercisingother disciplinary actions) and the
any authority under 5 U.S.C. § 7106 andprocedures which management will
over appropriate arrangements forobserve in exercising its authority.
employees adversely affected by the
exercise of any authority under theManagement and an exclusive
section by management officials (so-representative will bargain at the level of
called “impact and implementation”recognition, unless otherwise determined
bargaining).by the parties, over appropriate
arrangements for employees adversely
affected by the exercise of any authority
under 5 C.F.R. § 9701.511(a)(1) or (2),
provided that the effects of such exercise
have a significant and substantial impact
on the bargaining unit, or on those



Current LawFinal DHS Regulations
employees in that part of the bargaining
unit affected by the action or event, and
are expected to exceed or have exceeded

60 days.


No similar provision.5 C.F.R. § 9701.512 - Conferring on
Procedures For the Exercise of
Management Rights
Management will confer at the level of
recognition with an appropriate exclusive
representative to consider its views and
recommendations with regard to the
procedures management will observe in
exercising its rights under 5 C.F.R. §

9701.511(a)(1) and (2) (e.g., assignments,


deployments, other actions necessary to
carrying out DHS’s mission). This
section does not require that the parties
reach agreement on any covered matter.
The parties will meet at reasonable times
and places for no longer than 30 days
unless they mutually agree to extend this
period. Management retains the sole,
exclusive, and unreviewable discretion to
determine the procedures that it will
observe in exercising the authorities set
forth in 5 C.F.R. § 9701.511(a)(1) and (2)
and to deviate from such procedures, as
necessary.
5 U.S.C. § 7112 - Determination of5 C.F.R. § 9701.514 - Determination of
Appropriate Units For LaborAppropriate Units For Labor
Organization RepresentationOrganization Representation
The FLRA shall determine theThe FLRA will determine the
appropriateness of any unit. The FLRAappropriateness of any unit. The FLRA
will find a unit to be appropriate only ifwill find a unit to be appropriate only if
the determination will ensure a clear andthe determination will ensure a clear and
identifiable community of interest amongidentifiable community of interest among
the employees in the unit and willthe employees in the unit and will
promote effective dealings with, andpromote effective dealings with, and
efficiency of the operations of the agencyefficiency of the operations of DHS,
involved.consistent with the agency’s mission and
organizational structure.
A bargaining unit may not include the
following types of employees:A bargaining unit may not include the
(1) management officials or supervisors,following types of employees:
except under certain specified(1) management officials or supervisors,
circumstances;except as provided under 5 U.S.C. §
(2) confidential employees;7135(a)(2), which is not waived for the
(3) employees engaged in personnel workpurpose of subpart E of part 9701;
in other than a purely clerical capacity;(2) confidential employees;
(4) employees engaged in administering(3) employees engaged in personnel work



Current LawFinal DHS Regulations
the provisions of 5 U.S.C. chapter 71;in other than a purely clerical capacity;
(5) employees engaged in intelligence,(4) employees engaged in administering
counterintelligence, investigative, orthe provisions of subpart E;
security work which directly affects(5) professional and other employees,
national security; orunless a majority of the professional
(6) employees primarily engaged inemployees vote for inclusion in the unit;
investigation or audit functions relating(6) employees engaged in intelligence,
to the work of individuals employed bycounterintelligence, investigative, or
an agency whose duties directly affect thesecurity work which directly affects
internal security of the agency, but only ifnational security; or
the functions are undertaken to ensure(7) employees primarily engaged in
that the duties are discharged honestlyinvestigation or audit functions relating
and with integrity.to the work of individuals employed by
DHS whose duties directly affect the
internal security of the agency, but only if
the functions are undertaken to ensure
that the duties are discharged honestly
and with integrity.

5 U.S.C. § 7114(a)(2) - Representation5 C.F.R. § 9701.515(a)(2) -


Rights and Duties (Representation atRepresentation Rights and Duties
Discussions and Examinations)(Representation at Discussions and
Examinations)
An exclusive representative shall be
given the opportunity to be represented atAn exclusive representative must be
any formal discussion between one orgiven the opportunity to be represented at
more representatives of the agency andthe following:
one or more employees in the unit or their(1) any formal discussion between DHS
representatives concerning any grievancerepresentatives and bargaining unit
or any personnel policy or practices oremployees, the purpose of which is to
other general condition of employment. discuss and/or announce new or
An exclusive representative shall besubstantially changed personnel policies,
given the opportunity to be represented atpractices, or working conditions;
any examination of an employee in the(2) any discussion between one or more
unit by a representative of the agency inDHS representatives and one or more
connection with an investigation if thebargaining unit employees concerning
employee reasonably believes that theany grievance;
examination may result in disciplinary(3) any examination of a bargaining unit
action against the employee and theemployee by a representative of DHS in
employee requests representation.connection with an investigation if the
employee reasonably believes that the
examination may result in disciplinary
action against the employee and the
employee requests such representation; or
(4) any discussion between a DHS
representative and a bargaining unit
employee in connection with a formal
complaint of discrimination if the
employee, at his or her sole discretion,
requests such representation.



Current LawFinal DHS Regulations

5 U.S.C. § 7114(a)(5) - Representation5 C.F.R. § 9701.515(a)(5) -


Rights and Duties (Grievance orRepresentation Rights and Duties
Appellate Rights)(Grievance or Appellate Rights)
The rights of an exclusive representativeExcept in the case of grievance
under 5 U.S.C. § 7114(a) shall not beprocedures negotiated under subpart E of
construed to preclude an employee frompart 9701, the rights of an exclusive
(1) being represented by an attorney orrepresentative under this section may not
other representative, other than thebe construed to preclude an employee
exclusive representative, of thefrom (1) being represented by an attorney
employee’s own choosing in anyor other representative of the employee’s
grievance or appeal action, or (2)own choosing, other than the exclusive
exercising grievance or appellate rightsrepresentative, in any grievance or appeal
established by law, rule, or regulation,action, or (2) exercising other grievance
except in the case of grievance or appealor appellate rights established by law,
procedures negotiated under 5 U.S.C.rule, or regulation.
chapter 71.

5 U.S.C. § 7114(b)(4) - Representation5 C.F.R. § 9701.515(b)(5) -


Rights and Duties (Furnishing of Data)Representation Rights and Duties
(Furnishing of Data)
The duty of an agency and exclusive
representative to negotiate in good faithThe duty of DHS or appropriate
shall include the obligation, in the case ofcomponent(s) of the agency and an
an agency, to furnish to the exclusiveexclusive representative to negotiate in
representative or its authorizedgood faith includes the obligation to
representative, upon request and to thefurnish information to the exclusive
extent not prohibited by law, data whichrepresentative or its authorized
is normally maintained by the agency inrepresentative, when (1) such information
the regular course of business, which isexists, is normally maintained, and is
reasonably available and necessary forreasonably available; (2) the exclusive
full and proper discussion, understanding,representative has requested such
and negotiation of subjects within theinformation and demonstrated a
scope of collective bargaining, and whichparticularized need for the information in
does not constitute guidance, advice,order to perform its representational
counsel, or training provided forfunctions in grievance proceedings or in
management officials or supervisors,negotiations; and (3) disclosure is not
relating to collective bargaining.prohibited by law.
The disclosure of information does not
include the following:
(1) disclosure prohibited by law or
regulations;
(2) disclosure of information if adequate
alternative means exist for obtaining the
requested information, or if proper
discussion, understanding, or negotiation
of a particular subject within the scope of
collective bargaining is possible without
recourse to the information;
(3) internal DHS guidance, counsel,
advice, or training for managers and



Current LawFinal DHS Regulations
supervisors relating to collective
bargaining;
(4) any disclosure that would
compromise DHS’s mission, security, or
employee safety; and
(5) home addresses, telephone numbers,
email addresses, or any other information
not related to an employee’s work.
5 U.S.C. § 7115 - Allotments to5 C.F.R. § 9701.516 - Allotments to
Representatives Representatives
If an agency has received from anSimilar regulatory language.
employee in an appropriate unit a written
assignment which authorizes the agency
to deduct from the pay of the employee
amounts for the payment of regular and
periodic dues of the exclusive
representative of the unit, the agency
shall honor the assignment and make an
appropriate allotment pursuant to the
assignment. Subject to 5 U.S.C. §
7115(c)(2), if a petition has been filed
with the FLRA by a labor organization
alleging that 10 percent of the employees
in an appropriate unit have membership
in the labor organization, the FLRA shall
investigate the petition to determine its
validity.
5 U.S.C. § 7116(a)(4) - Unfair Labor5 C.F.R. § 9701.517(a)(4) - Unfair Labor
Practices (Complaints and Petitions)Practices (Complaints and Petitions)
It shall be an unfair labor practice for anIt is an unfair labor practice for DHS to
agency to discipline or otherwisediscipline or otherwise discriminate
discriminate against an employee becauseagainst an employee because the
the employee has filed a complaint,employee has filed a complaint or
affidavit, or petition, or has given anypetition, or has given any information or
information or testimony under 5 U.S.C.testimony under subpart E of part 9701.
chapter 71.
5 U.S.C. § 7116(a)(5) - Unfair Labor5 C.F.R. § 9701.517(a)(5) - Unfair Labor
Practices (Agency Refusal to Consult orPractices (Agency Refusal to Consult or
Negotiate in Good Faith)Negotiate in Good Faith)
It shall be an unfair labor practice for anIt is an unfair labor practice for DHS to
agency to refuse to consult or negotiate inrefuse, as determined by the Board, to
good faith with a labor organization asconsult or negotiate in good faith with a
required by 5 U.S.C. chapter 71.labor organization as required by subpart
E of part 9701.



Current LawFinal DHS Regulations
5 U.S.C. § 7116(a)(6) - Unfair Labor5 C.F.R. § 9701.517(a)(6) - Unfair Labor
Practices (Agency Failure or Refusal toPractices (Agency Failure or Refusal to
Cooperate in Impasse Procedures andCooperate in Impasse Procedures and
Decisions) Decisions)
It shall be an unfair labor practice for anIt is an unfair labor practice for DHS to
agency to fail or refuse to cooperate infail or refuse, as determined by the
impasse procedures and impasseBoard, to cooperate in impasse
decisions as required by 5 U.S.C. chapterprocedures and impasse decisions as

71.required by subpart E of part 9701.


5 U.S.C. § 7116(a)(7) - Unfair LaborNo similar provision.


Practices (Enforcement of Conflicting
Rule or Regulation)
It shall be an unfair labor practice for an
agency to enforce any rule or regulation
(other than a rule or regulation
implementing 5 U.S.C. § 2302) which is
in conflict with any applicable collective
bargaining agreement if the agreement
was in effect before the date the rule or
regulation was prescribed.
5 U.S.C. § 7116(b)(5) - Unfair Labor5 C.F.R. § 9701.517(b)(5) - Unfair Labor
Practices (Labor Organization Refusal toPractices (Labor Organization Refusal to
Consult or Negotiate in Good Faith)Consult or Negotiate in Good Faith)
It shall be an unfair labor practice for aIt is an unfair labor practice for a labor
labor organization to refuse to consult ororganization to refuse, as determined by
negotiate in good faith with an agency asthe Board, to consult or negotiate in good
required by 5 U.S.C. chapter 71.faith with the Department as required by
subpart E of part 9701.
5 U.S.C. § 7116(b)(6) - Unfair Labor5 C.F.R. § 9701.517(b)(6) - Unfair Labor
Practices (Labor Organization Failure orPractices (Labor Organization Failure or
Refusal to Cooperate in ImpasseRefusal to Cooperate in Impasse
Procedures and Decisions)Procedures and Decisions)
It shall be an unfair labor practice for aIt is an unfair labor practice for a labor
labor organization to fail or refuse toorganization to fail or refuse, as
cooperate in impasse procedures anddetermined by the Board, to cooperate in
impasse decisions as required by 5 U.S.C.impasse procedures and impasse
chapter 71.decisions as required by subpart E of part

9701.


5 U.S.C. § 7118(a)(4)(A) - Unfair Labor5 C.F.R. § 9701.517(e) - Unfair Labor
Practices (Filing Deadlines)Practices (Filing Deadlines)
Except as provided in 5 U.S.C. §The Board will not consider any unfair
7118(a)(4)(B), the General Counsel oflabor practice allegation filed more than
the FLRA shall not issue a complaintsix months after the alleged unfair labor
based on any alleged unfair labor practicepractice occurred, unless it determines,
which occurred more than 6 monthspursuant to its regulations, that there is



Current LawFinal DHS Regulations
before the filing of the charge with thegood cause for the late filing.
FLRA.
5 U.S.C. § 7116(e) - Unfair Labor5 C.F.R. § 9701.517(g) - Unfair Labor
Practices (Personal Expressions)Practices (Personal Expressions)
The expression of any personal view,The expression of any personal view,
argument, or opinion, or the making ofargument, or opinion, or the making of
any statement which publicizes the factany statement which publicizes the fact
of a representational election andof a representational election and
encourages employees to exercise theirencourages employees to exercise their
right to vote in such election, corrects theright to vote in such election, corrects the
record with respect to any false orrecord with respect to any false or
misleading statement made by anymisleading statement made by any
person, or informs employees of theperson, or informs employees of the
Government’s policy relating to labor-Government’s policy relating to labor-
management relations and representation,management relations and representation,
shall not, if the expression contains nomay not, if the expression contains no
threat of reprisal or force or promise ofthreat of reprisal or force or promise of
benefit or was not made under coercivebenefit or was not made under coercive
conditions, (1) constitute an unfair laborconditions, (1) constitute an unfair labor
practice under any provision of thispractice under any provision of this
chapter, or (2) constitute grounds for thechapter, or (2) constitute grounds for the
setting aside of any election conductedsetting aside of any election conducted
under any provisions of 5 U.S.C. chapterunder any provisions of subpart E of part

71.9701 (emphasis added).


5 U.S.C. § 7117(a) - Duty to Bargain in5 C.F.R. § 9701.518(d)(1) - Duty to
Good Faith; Compelling Need; Duty toBargain, Confer, and Consult
Consult
Management may not bargain over any
The duty to bargain in good faith shall, tomatters that are inconsistent with law or
the extent not inconsistent with anythe regulations in subpart E of part 9701,
federal law or any government-wide rulegovernment-wide rules and regulations,
or regulation, extend to matters which aredepartmental implementing directives
the subject of any rule or regulation onlyand other policies and regulations, or
if the rule or regulation is not aexecutive orders.
government-wide rule or regulation, and
only if the FLRA has determined that no
compelling need exists for the rule or
regulation.
No similar provision.5 C.F.R. § 9701.518(b) -Duty to Bargain,
Confer, and Consult (Bargaining Over
Initial and Successor Agreements)
If bargaining over an initial collective
bargaining agreement or any successor
agreement is not completed within 90
days after such bargaining begins, the
parties can mutually agree to continue
bargaining or mutually agree to refer the
matter to an independent
mediator/arbitrator for resolution.



Current LawFinal DHS Regulations
Alternatively, either party may refer the
matter to the Board for resolution in
accordance with procedures established
by the Board, or may refer the matter to
the FMCS for assistance at any time.
No similar provision.5 C.F.R. § 9701.518(c) -Duty to Bargain,
Confer, and Consult (Bargaining During
the Term of an Existing Agreement)
If the parties bargain during the term of
an existing collective bargaining
agreement over a proposed change that is
otherwise negotiable, and no agreement is
reached within 30 days after such
bargaining begins, the parties may
mutually agree to continue bargaining or
mutually agree to refer the matter to an
independent mediator/arbitrator for
resolution. Alternatively, either party
may refer the matter to the Board for
resolution in accordance with procedures
established by the Board, or may refer the
matter to the FMCS for assistance at any
time.
No similar provision5 C.F.R. § 9701.518(d)(3), (d)(4) -Duty
to Bargain, Confer, and Consult (Change
in Conditions of Employment)
Management has no obligation to bargain
over a change to a condition of
employment unless the change is
otherwise negotiable pursuant to DHS
regulations and is foreseeable,
substantial, and significant in terms of
both impact and duration on the
bargaining unit, or on those employees
affected by the change.
Management has no obligation to confer
or consult unless a change is foreseeable,
substantial, and significant in terms of
both impact and duration on the
bargaining unit, or on those employees
affected by the change.



Current LawFinal DHS Regulations

5 U.S.C. § 7117(c)(1) -Duty to Bargain in5 C.F.R. § 9701.518(e) -Duty to Bargain,


Good Faith; Compelling Need; Duty toConfer, and Consult (Negotiation
Consult (Negotiation Appeals)Appeals)
Except in cases involving compellingIf a management official involved in
need, if an agency involved in collectivecollective bargaining with an exclusive
bargaining with an exclusiverepresentative alleges that the duty to
representative alleges that the duty tobargain in good faith does not extend to
bargain in good faith does not extend toany matter, the exclusive representative
any matter, the exclusive representativemay appeal the allegation to the Board in
may appeal the allegation to the FLRA inaccordance with the Board’s procedures.
accordance with the provisions of 5
U.S.C. § 7117(c).
5 U.S.C. § 7119(a) - Negotiation5 C.F.R. § 9701.519(a) - Negotiation
Impasses Impasses
The Federal Mediation and ConciliationIf the Department and exclusive
Service (“FMCS”) shall provide servicesrepresentative are unable to reach an
and assistance to agencies and exclusiveagreement under 5 C.F.R. §§ 9701.515 or
representatives in the resolution of9701.518, either party may submit the
negotiation impasses. The FMCS shalldisputed issues to the Board for
determine under what circumstances andresolution.
in what manner it shall provide services
and assistance.
5 U.S.C. § 7119(b), (c)(5)(B) -5 C.F.R. § 9701.519(b) - Negotiation
Negotiation Impasses (Failure to ResolveImpasses (Failure to Resolve Impasse)
Impasse)
If the parties do not arrive at a settlement
If voluntary arrangements, including theafter assistance by the Board, the Board
services of the FMCS or any other third-may take whatever action is necessary
party mediation fail to resolve theand not inconsistent with subpart E of
negotiation impasse, either party maypart 9701 to resolve the impasse.
request the Federal Service Impasses
Panel (“FSIP”) to consider the matter or
the parties may agree to adopt a
procedure for binding arbitration of the
negotiation impasse, but only if the
procedure is approved by the FSIP. If the
parties do not arrive at a settlement after
assistance by the FSIP, the FSIP may take
whatever action is necessary and not
inconsistent with 5 U.S.C. chapter 71 to
resolve the impasse.
5 U.S.C. § 7121(a)(1) - Grievance5 C.F.R. § 9701.521(a)(1) - Grievance
Procedures (Procedures in CollectiveProcedures (Procedures in Collective
Bargaining Agreements)Bargaining Agreements)
Except as provided in 5 U.S.C. §Except as provided in 5 C.F.R. §
7121(a)(2), any collective bargaining9701.521(a)(2), any collective bargaining
agreement shall provide procedures foragreement must provide procedures for
the settlement of grievances, includingthe settlement of grievances including



Current LawFinal DHS Regulations
questions of arbitrability. Except asquestions of arbitrability. Except as
provided in 5 U.S.C. § 7121(d), (e), andprovided in 5 C.F.R. § 9701.521(d), (f),
(g), the procedures shall be the exclusiveand (g), the procedures must be the
administrative procedures for resolvingexclusive administrative procedures for
grievances which fall within theirgrievances which fall within its coverage.
coverage.
5 C.F.R. § 9701.521(d): To the extent not
5 U.S.C. § 7121(d): Prohibited personnelalready excluded by existing collective
practices involving employmentbargaining agreements, the exclusions
discrimination may be raised under acontained in 5 C.F.R. § 9701.521(c)
statutory procedure or the negotiatedapply upon the effective date of subpart
procedure, but not both.E, as determined under 5 C.F.R. §

9701.102(b).


5 U.S.C. § 7121(e): Matters involving
unacceptable performance, removals,5 C.F.R. § 9701.521(f)(1): Matters
suspensions, and reductions in grade andcovered by subpart G may be raised
pay which fall within the coverage of theunder the appeals procedure of 5 C.F.R. §
negotiated grievance procedure may be9701.706 or under the negotiated
raised under the appellate procedures of 5grievance procedure, but not both.
U.S.C. § 7701 or under the negotiated
grievance procedures, but not both.5 C.F.R. § 9701.521(g)(1): A
performance rating of record that has not
5 U.S.C. § 7121(g): Other prohibitedbeen appealed in connection with an
personnel practices may be appealed toaction under subpart G may be grieved.
the Merit Systems Protection Board
(“MSPB”), raised under the negotiated
grievance procedure, or addressed
through procedures for seeking corrective
action under subchapters II and III of 5
U.S.C. chapter 12.
5 U.S.C. § 7121(b)(2)(A) - Grievance5 C.F.R. § 9701.521(b)(2) - Grievance
Procedures (Negotiated GrievanceProcedures (Negotiated Grievance
Procedures) Procedures)
The provisions of a negotiated grievanceSimilar regulatory language.


procedure providing for binding
arbitration shall, if or to the extent that an
alleged prohibited personnel practice is
involved, allow the arbitrator to order (1)
a stay of any personnel action in a
manner similar to the manner described
in 5 U.S.C. § 1221(c) with respect to the
MSPB, and (2) the taking, by an agency,
of any disciplinary action identified
under section 5 U.S.C. § 1215(a)(3) that
is otherwise within the authority of such
agency to take.

Current LawFinal DHS Regulations
5 U.S.C. § 7121(d) - Grievance5 C.F.R. § 9701.521(e)(1) - Grievance
Procedures (Prohibited PersonnelProcedures (Prohibited Personnel
Practices Involving EmploymentPractices Involving Employment
Discrimi nation) Discrimi nation)
Selection of the negotiated procedure byAn aggrieved employee affected by a
an aggrieved employee affected by aprohibited personnel practice under 5
prohibited personnel practice involvingU.S.C. § 2302(b)(1) which also falls
employment discrimination in no mannerunder the coverage of the negotiated
prejudices the right of the employee togrievance procedure may raise the matter
request the MSPB to review the finalunder the applicable statutory procedures,
decision in the case of any action thator the negotiated procedure, but not both.
could have been appealed to the MSPB,
or, where applicable, to request the Equal
Employment Opportunity Commission
(“EEOC”) to review a final decision in
any other matter involving a complaint of
discrimination of the type prohibited by
any law administered by the EEOC.

5 U.S.C. § 7121(h) - GrievanceNo similar provision.


Procedures (Limits on Settlements and
Awards)
Settlements and awards under 5 U.S.C.
chapter 71 shall be subject to the
limitations in 5 U.S.C. § 5596(b)(4).
5 U.S.C. § 7122 - Exceptions to5 C.F.R. § 9701.522 - Exceptions to
Arbitration AwardsArbitration Awards
Either party to arbitration under 5 U.S.C.For awards involving the exercise of
chapter 71 may file with the FLRA anmanagement rights or the duty to bargain
exception to any arbitrator’s award. Ifunder 5 C.F.R. §§ 9701.511 and
upon review, the FLRA finds that the9701.518, either party to the arbitration
award is deficient because it is contrarymay file an exception to any arbitrator’s
to any law, rule, or regulation, or on theaward with the Board. The Board may
grounds similar to those applied bytake such action and make such
federal courts in private sector labor-recommendations concerning the award
management relations, it may take suchas is consistent with subpart E. If no
action and make such recommendationsexception to an arbitrator’s award is filed
concerning the award as it considersduring the 30-day period beginning on
necessary, consistent with applicablethe date of such award, the award is final
laws, rules, or regulations. If noand binding.
exception to an arbitrator’s award is filed
during the 30-day period beginning onFor other awards, either party may file an
the date the award is served on the party,exception with the FLRA pursuant to 5
the award shall be final and binding.U.S.C. § 7122 and the FLRA’s
regulations.
5 U.S.C. § 7131 - Official Time5 C.F.R. § 9701.523 - Official Time
Any employee representing an exclusiveAny employee representing an exclusive
representative in the negotiation of arepresentative in the negotiation of a



Current LawFinal DHS Regulations
collective bargaining agreement under 5collective bargaining agreement under
U.S.C. chapter 71 shall be authorizedsubpart E must be authorized official
official time for such purposes, includingtime for such purposes, including
attendance at impasse proceedings,attendance at impasse proceedings,
during the time the employee otherwiseduring the time the employee otherwise
would be in a duty status. Except aswould be in a duty status. Except as
provided in 5 U.S.C. § 7131(a), theprovided in 5 C.F.R. § 9701.523(a), the
FLRA shall determine whether anyFLRA or the Board will determine
employee participating for, or on behalfwhether an employee participating for, or
of, a labor organization in any phase ofon behalf of, a labor organization in any
proceedings before the FLRA shall bephase of proceedings before the FLRA or
authorized official time for such purposethe Board will be authorized official time
during the time the employee wouldfor such purpose during the time the
otherwise be in a duty status.employee would otherwise be in a duty
status.
5 U.S.C. § 7133 - Compilation and5 C.F.R. § 9701.524 - Compilation and
Publication of DataPublication of Data
The FLRA shall maintain a file of itsThe Board must maintain a file of its
proceedings and copies of all availableproceedings and copies of all available
agreements and arbitration decisions, andagreements and arbitration decisions and
shall publish the texts of its decisions andpublish the texts of its impasse resolution
the actions taken by the FSIP under 5decisions and the actions taken under 5
U.S.C. § 7119. All files shall be open toC.F.R. § 9701.919. All files must be
inspection and reproduction inopen to inspection and reproduction in
accordance with the provisions of 5accordance with 5 U.S.C. §§ 552 and
U.S.C. §§ 552 and 552a.552a. The Board will establish rules in
consultation with the Department for
maintaining and making available for
inspection sensitive information.

5 U.S.C. § 7135(a)(2) - Continuation ofNo similar provision.


Existing Laws, Recognitions,
Agreements, and Procedures (Units of
Management Officials or Supervisors)
Nothing contained in 5 U.S.C. chapter 71
shall preclude the renewal, continuation,
or initial according of recognition for
units of management officials or
supervisors represented by labor
organizations which historically or
traditionally represent management
officials or supervisors in private industry
and which hold exclusive recognition for
units of such officials or supervisors in
any agency on the effective date of 5
U.S.C. chapter 71.

Current LawFinal DHS Regulations
No similar provision.5 C.F.R. § 9701.527 - Savings Provision
Subpart E of part 9701 does not apply to
grievances or other administrative
proceedings already pending on the
effective date of the subpart, as
determined under 5 C.F.R. § 9701.102(b).
Any remedy that applies after the date of
coverage under any provision of subpart
E and that is in conflict with applicable
provisions of subpart E is not
enforceable.