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Page:United States Statutes at Large Volume 92 Part 1.djvu/1223

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1169

"§ 4314. Ratings for performance appraisals "(a) Each performance appraisal system shall provide for annual summary ratings of levels of performance as follows: " (1) one or more fully successful levels, (2) a minimally satisfactory level, and "(3) an unsatisfactory level. "(b) Each performance appraisal system shall provide that— .j "(1) any appraisal and any rating under such system— "(A) are made only after review and evaluation by a performance review board established under subsection (c) of, this section; "(B) are conducted at least annually, subject to the limitation of subsection (c)(3) of this section; "(C) in the case of a career appointee, may not be made within 120 days after the beginning of a new Presidential administration; and "(D) are based on performance during a performance appraisal period the duration of which shall be determined under guidelines established by the Office of Personnel Management, but which may be terminated in any case in which the agency making an appraisal determines that an adequate basis exists on which to appraise and rate the senior executive's performance; "(2) any career appointee receiving a rating at any of the fully successful levels under subsection (a)(1) of this section may be given a performance award under section 5384 of this title; "(3) any senior executive receiving an unsatisfactory rating under subsection (a)(3) of this section shall be reassigned or transferred within the Senior Executive Service, or removed from I the Senior Executive Service, but any senior executive who receives 2 unsatisfactory ratings in any period of 5 consecutive years shall be removed from the Senior Executive Service; and "(4) any senior executive who twice in any period of 3 consecutive years receives less than fully successful ratings shall be removed from the Senior Executive Service. "(c)(1) Each agency shall establish, in accordance with regulations prescribed by the Office, one or more performance review boards, as appropriate. It is the function of the boards to make recommendations to the appropriate appointing authority of the agency relating to the performance of senior executives in the agency. "(2) The supervising official of the senior executive shall provide to the performance review board, an initial appraisal of the senior executive's performance. Before making any recommendation with respect to the senior executive, the board shall review any response by the senior executive to the initial appraisal and conduct such further review as the board finds necessary. "(3) Performance appraisals under this subchapter with respect to any senior executive shall be made by the appointing authority only after considering the recommendations by the performance review board with respect to such senior executive under paragraph (1) of this subsection. "(4) Members of performance review boards shall be appointed in such a manner as to assure consistency, stability, and objectivity in performance appraisal. Notice of the appointment of an individual to serve as a member shall be published in the Federal Kegister.

5 USC 4314.

,l ^

Post, p. 1172.

Performance review boards. Establishment.

Membership, Publication in Federal Register.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1224

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1170

Report to Congress. Ante, p. 1159.

Ante, p. 1165.

Post, p. 1172. 5 USC 4315.

"(5) In the case of an appraisal of a career appointee, more than one-half of the members of the performance review board shall consist of career appointees. The requirement of the preceding sentence shall not apply in any case in which the Office determines that there exists an insufficient number of career appointees available to comply with the requirement. "(d) The Office shall include in each report submitted to each House of the Congress under section 3135 of this title a report of— "(1) the performance of any performance review board established under this section, " (2) the number of individuals removed from the Senior Executive Service under subchapter V of chapter 35 of this title for less than fully successful executive performance, and "(3) the number of performance awards under section 5384 of this title. "§4315. Regulations "The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.". (b) The analysis for chapter 43 of title 5, United States Code, is amended by inserting at the end thereof the following:

"Sec.

"4311. "4312. "4313. "4314. "4315.

"SUBCHAPTER II—PERFORMANCE APPRAISAL IN THE SENIOR EXECUTIVE SERVICE Definitions. Senior Executive Service performance appraisal systems. Criteria for performance appraisals. Ratings for performance appraisals. >; Regulations.". ,, AWARDING OF RANKS

5 USC 4507. Definitions. Ante, p. 1155. Recommendations.

''','

SEC. 406. (a) Chapter 45 of title 5, United States Code, is amended by adding at the end thereof the following new section: "§4507. Awarding of ranks in the Senior Executive Service "(a) For the purpose of this section, 'agency', 'senior executive', and 'career appointee' have the meanings set forth in section 3132(a) of this title. "(b) Each agency shall submit annually to the Office recommendations of career appointees in the agency to be awarded the rank of Meritorious Executive or Distinguished Executive. The recommendations may take into account the individual's performance over a period of years. The Office shall review such recommendations and provide to the President recommendations as to which of the agency recommended appointees should receive such rank. "(c) During any fiscal year, the President may, subject to subsection (d) of this section, award to any career appointee recommended by the Office the rank of— "(1) Meritorious Executive, for sustained accomplishment, or "(2) Distinguished Executive, for sustained extraordinary accomplishment. A career appointee awarded a rank under paragraph (1) or (2) of this subsection shall not be entitled to be awarded that rank during the following 4 fiscal years. "(d) During any 6scal year— "(1) the number of career appointees awarded the rank of Meritorious Executive may not exceed 5 percent of the Senior Executive Service; and "(2) the number of career appointees awarded the rank of

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license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Page:United States Statutes at Large Volume 92 Part 1.djvu/1225

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1171

Distinguished Executive may not exceed 1 percent of the Senior ,,, ^ Executive Service. "(e)(1) Receipt by a career appointee of the rank of Meritorious Executive entitles such individual to a lump-sum payment of $10,000, which shall be in addition to the basic pay paid under section 5382 of this title or any award paid under section 5384 of this title. ^"/ra"(2) Receipt by a career appointee of the rank of Distinguished ^^•'^' P- 1172. Executive entitles the individual to a lump-sum payment of $20,000, which shall be in addition to the basic pay paid under section 5382 of this title or any award paid under section 5384 of this title.". (b) The analysis for chapter 45 of title 5, United States Code, is amended by adding at the end thereof the following new item: "4507. Awarding of Ranks in the Senior Executive Service.". PAY RATES AND SYSTEMS

SEC. 407. (a) Chapter 53 of title 5, United States Code, is amended by adding at the end thereof the following new subchapter:

i'

"SUBCHAPTER VIII—PAY FOR THE SENIOR EXECTTTIVE SERVICE "§ 5381. Definitions "For the purpose of this subchapter, 'agency', 'Senior Executive Service position', and 'senior executive' have the meanings set forth in section 3132(a) of this title. "§ 5382. Establishment and adjustment of rates of pay for the Senior Executive Service "(a) There shall be 5 or more rates of basic pay for the Senior Executive Service, and each senior executive shall be paid at one of the rates. The rates of basic pay shall be initially established and thereafter adjusted by the President subject to subsection (b) of this section. "(b) In setting rates of basic pay, the lowest rate for the Senior Executive Service shall not be less than the minimum rate of basic pay payable for GS-16 of the General Schedule and the highest rate shall not exceed the rate for level IV of the Executive Schedule. The payment of the rates shall not be subject to the pay limitation of section 5308 or 5373 of this title. " (c) Subject to subsection (b) of this section, effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under section 5305 of this title in the rates of pay under the General Schedule, each rate of basic pay for the Senior Executive Service shall be adjusted by an amount determined by the President to be appropriate. The adjusted rates of basic pay for the Senior Executive Service shall be included in the report transmitted to the Congress by the President under section 5305(a)(3) or (c)(1) of this title. "(d) The rates of basic pay that are established and adjusted under this section shall be printed "in the Federal Register and shall supersede any prior rates of basic pay for the Senior Executive Service. "§ 5383. Setting individual senior executive pay " (a) P]ach appointing authority shall determine, in accordance with criteria established by the Office of Personnel Management, which of the rates established under section 5382 of this title shall be paid to each senior executive under such appointing authority.

5 USC 5381. ^»«e, p. 1155. 5 USC 5382.

. 5 USC 5315. 5 USC 5308. ^^*^' P- l^^l5 USC 5305.

Publication in Federal Register,, ^ ^^^ ^^^^•

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1226

 92 STAT. 1172

PUBLIC LAW 95-454—OCT. 13, 1978

' ' (b) I n no event may the aggregate amount paid to a senior execuAnte, p. 1170. tive during any fiscal year under sections 4507, 5382, and 5384 of this title exceed the annual rate payable for positions at level I of the Executive Schedule in effect at the end of such fiscal year. " (c) Except for any pay adjustment under section 5382 of this title, Ihe rate of basic pay for any senior executive may not be adjusted more than once during any 12-month period. " (d) The rate of basic pay for any career appointee may be reduced from any rate of basic pay to any lower rate of basic pay only if the career appointee receives a written notice of the reduction at least 15 days in advance of the reduction. 5 USC 5384. "§ 5384. Performance awards in the Senior Executive Service " (a)(1) To encourage excellence in performance by career appointees, performance awards shall be paid to career appointees in accordance with the provisions of this section. " (2) Such awards shall be paid in a l u m p sum and shall be in addition to the basic pay paid under section 5382 of this title or any a w a r d Ante, p. 1170. paid under section 4507 of this title. ' ' (b)(1) No performance award under this section shall be paid to any career appointee whose performance was determined to be less than fully successful at the time of the appointee's most recent performance appraisal and r a t i n g under subchapter II of chapter 43 of Ante, p. 1167. this title. " (2) The amount of a performance a w a r d under this section shall be determined by the agency head but may not exceed 20 percent of the • '' career appointee's rate of basic pay. • Ht:< " (3) The number of career appointees in any agency p a i d performance awards under this section during any fiscal year may not exceed 50 percent of the number of Senior Executive Service positions in such agency. This paragraph shall not apply in the case of any agency which has less than 4 Senior Executive Service positions. " (c) Performance awards paid by any agency under this section shall be based on recommendations by performance review boards Ante, p. 1169. established by such agency under section 4314 of this title. " (d) The Office of Personnel Management may issue guidance to, „,,,,^ agencies concerning the proportion of Senior Executive Service salary expenses that may be appropriately applied to payment of performance awards and the distribution of awards. 5 USC 5385. "§5385. Regulations " The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.". (b) The analysis of chapter 53 of title 5, United States Code, is amended by adding at the end thereof the following new items: "SUBCHAPTER VIII—PAY FOR THE SENIOR EXECUTIVE SERVICE "Sec. "5381. Definitions. "5382. Establishment and adjustment of rates of pay for the Senior Executive Service. ".5383. Setting individual senior executive pay. r = "5384. Performance awards in the Senior Executive Service. "5385. Regulations.". ' '

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1227

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1173

PAY ADMINISTRATION

Srx\ 408. (a) Chapter 55 of the title 5, United States Code, is amended— (1) by inserting "other than an employee or individual excluded by section 5541(2) (xvi) of this section" immediately before the 5 USC 5541. period at the end of section 5504(a)(B); ^ 5 USC 5504. (2) by amending section 5541(2) by striking out "or" after clause (xiv), by striking out the period after clause (xv) and inserting "; or" in lieu thereof, and by adding the following , > clause at the end thereof: " (xvi) member of the Senior Executive Service."; and (3) by inserting "other than a member of the Senior Executive Service" after "employee" in section 5595(a)(2)(i). 5 USC 5595. (b)(1) Section 5311 of title 5, United States Code, is amended by inserting ", other than Senior Executive Service positions," after "positions". (2) Section 5331(b) of title 5, United States Code, is amended by inserting ", other than Senior Executive Service positions," after "positions". TRAVEL, TRANSPORTATION, AND SUBSISTENCE

SEC. 409. (a)^ Section 5723(a)(1) of title 5, United States Code, is amended by striking out "; and" and inserting in lieu thereof "or of a new appointee to the Senior Executive Service; and". ! (b) Subchapter IV of chapter 57 of title 5, United States Code, is amended by adding at the end thereof the following new section: "§ 5752. Travel expenses of Senior Executive Service candidates 5 USC 5752. "Employing agencies may pay candidates for Senior Executive Service positions travel expenses incurred incident to premployment interviews requested by the employing agency.". (c) The analysis for chapter 57 of title 5, United States Code, is amended by inserting after the item relating to section 5751 the following new item: "5752. Travel expenses of Senior Executive Service candidates.". c - v,.:, '•

LEAVE

SEC. 410. Section 6304 of title 5, United States Code, is amended— (1) in subsection (a), by striking out "and (e)" and inserting in lieu thereof " (e), and (f) "; and (2) by adding at the end thereof the following new subsection: "(f) Annual leave accnied by an individual while serving in a position in the Senior Ilxecutive Service shall not be subject to the limitation on accumulation otherwise imposed by this section.". DISCIPLINARY ACTIONS

i SEC. 411. Chapter 75 of title 5, United States Code, is amended— (1) by inserting the following in the chapter analysis after subchapter IV:

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1228

 92 STAT. 1174

PUBLIC LAW 95-454r-OCT. 13, 1978 "SUBCHAPTER V—SENIOR EXECUTIVE SERVICE

"Sec. "7541. Definitions. "7542. Actions covered. "7543. Cause and procedure."; and (2) by adding the following after subchapter IV:

"SUBCHAPTER V—SENIOR EXECUTIVE SERVICE 5 USC 7541.

Ante, p. 1161.

Ante, p. 1134. 5 USC 7542. Ante, p. 11?5. 5 USC 7532. Ante, p. 1165. 5 USC 7543.

Hearing. Appeals. Ante, p. 1138. Record maintenance.

«§ 7541. Definitions "For the purpose of this subchapter— "(1) 'employee' means a career appointee in the Senior Executive Service who— "(A) has completed the probationary period prescribed gii f under section 3393(d) of this title; or I " (B) was covered by the provisions of subchapter II of this chapter immediately before appointment to the Senior Executive Service; and "(2) 'suspension' has the meaning set forth in section 7501(2) of this title. . "§7542. Actions covered "This subchapter applies to a removal from the civil service or suspension for more than 14 days, but does not apply to an action initiated under section 1206 of this title, to a suspension or removal under section 7532 of this title, or to a removal under section 3592 of this title. "§7543. Cause and procedure "(a) Under regulations prescribed by the Office of Persomiel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service. "(b) An employee against whom an action covered by this subchapter is proposed is entitled to— "(1) at least 30 days' advance written notice, unless there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment can be imposed, stating specific reasons for the proposed action; " (2) a reasonable time, but not less than 7 days, to answer orallj and in writing and to furnish affidavits and other documentary evidence in support of the answer; "(3) be represented by an attorney or other representative; and "(4) a written decision and specific reasons therefor at the earliest practicable date. "(c) An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section. "(d) An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title. "(e) Copies of the notice of proposed action, the answer of the employee when written, and a Nummary thereof when made orally, the notice of decision and reason^ therefor, and any order effecting an

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1229

 PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T. 13, 1978

92 STAT. 1175

action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee aJffected upon the employee's request.", RETIREMENT

SEC. 412. (a) Section 8336 of title 5, United States Code, is amended by redesignating subsection (h) as subsection (i) and inserting immediately after subsection (g) the following new subsection: "(h) A member of the Senior Executive Service who is removed from the Senior Executive Service for less than fully successful executive performance (as determined under subchapter II of chapter 43 of this title) after completing 25 years of service or after becoming Ante, p. 1167. 50 years of age and completing 20 years of service is entitled to an annuity.". (b) Section 8339(h) of title 5, United States Code, is amended by striking out "section 8336(d)" and inserting in lieu thereof "section 8336 (d) or (h)". ^ CONVERSION TO THE SENIOR EXECUTIVE SERVICE

SEC. 413. (a) For the purpose of this section, "agency", "Senior Executive Service position", "career appointee", "career reserved position"j "limited term appointee", "noncareer appointee", and "general position" have the meanings set forth in section 3132(a) of title 5, United States Code (as added by this title), and "Senior Executive Service" has the meaning set forth in section 2101a of such title 5 (as added by this title). (b)(1) Under the guidance of the Office of Personnel Management, each agency shall— (A) designate those positions which it considers should be Senior Executive Service positions and designate which of those positions it considers should be career reserved positions; and (B) submit to the Office a written request for— (i) a specific number of Senior Executive Service positions,'and (ii) authority to employ a specific number of noncareer appointees. (2) The Office of Personnel Management shall review the designations and requests of each agency under paragraph (1) of this subsection, and shall establish interim authorizations in accordance with sections 3133 and 3134 of title 5, United States Code (as added by this Act), and shall publish the titles of the authorized positions in the Federal Register. (c)(1) Each employee serving in a position at the time it is designated as a Senior Executive Service position under subsection (b) of this section shall elect to— (A) decline conversion and be appointed to a position under such employee's current type of appointment and pay system, retaining the grade, seniority, and other rights and benefits associated with such type of appointment and pay system; or (B) accept conversion and be appointed to a Senior Executive Service position in accordance with the provisions of subsections (d), (e), (f), (g), and (h) of this section. The appointment of an employee in an agency because of an election

5 USC 3133 note.

Ante, p. 1155. Ante, p. 1154.

Publication in Federal Register, Ante, pp. 1158, ^1^^-

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1230

 92 STAT. 1176 Written notification.

Ante, p. 1161.

5 USC 5311.

Publication in Federal Register.

PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T. 13, 1978 under subparagraph (A) of this paragraph shall not result in the separation or reduction in grade of any other employee in such agency. (2) Any employee in a position which has been designated a Senior Executive Service position under this section shall be notified in writing of such designation, the election required under paragraph (1) of this subsection, and the provisions of subsections (d), (e), (f), (g), and (h) of this section. The employee shall be given 90 days from the date of such notification to make the election under paragraph (1) of this subsection. (d) Each employee who has elected to accept conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under— (1) a career or career-conditional appointment; or (2) a similar type of appointment in an excepted service position, as determined by the Office; in a position which is designated as a Senior Executive Service position shall be appointed as a career appointee to such Senior Executive Service position without regard to section 3393(b)-(e) of title 5, United States Code (as added by this title). (e) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under an excepted appointment in a position which is not designated a career reserved position in the Senior Executive Service, but is— (1) a position in Schedule C of subpart C of part 213 of title 5, Code of Federal Eegulations; (2) a position filled by noncareer executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations; or (c'^ a position in the Executive Schedule under subchapter II of chapter 53 of title 5, United States Code, other than a career Executive Schedule position; shall be appointed as a noncareer appointee to a Senior Executive Service position. (f) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a career reserved position under subsection (b) of this section shall be appointed as a noncareer appointee to an appropriate general position in the Senior Executive Service or shall be separated. (g) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a Senior Executive Service position and Avho has reinstatement eligibility to a position in the competitive sendee, maj^, on request to the Office, be appointed as a career appointee to a Senior Executive Service position. The name of, and basis for reinstatement eligibility for, each employee appointed as a career appointee under this subsection shall be published in the Federal Register. (h) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under a limited executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations, shall— (1) be appointed as a limited term appointee to a Senior Execu-

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1231

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1177

tive Service position if the position then held by sucih employee will terminate within 3 years of the date of such appointment; (2) be appointed as a noncareer appointee to a Senior Executive Service position if the position then held by such employee is designated as a general position; or (3) be appointed as a noncareer appointee to a general position if the position then held by sudh employee is designated as a career reserved position. (i) The rate of basic pay for any employee appointed to a Senior Executive Service position under this section shall be greater than or equal to the rate of basic pay payable for the position held by such employee at the time of such appointment. (j) Any employee who is aggrieved by any action by any agency under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of title 5, United States Code (as added by ^"-te, p. 1138. this title). An agency sihall take any corrective action which the Board orders in its decision on an appeal under this subsection. (k) The Office shall prescribe regulations to carry out the purpose of Regulations, this section. LIMITATIONS ON EXECUTIVE POSITIONS

SEC. 414. (a)(1)(A) The following provisions of section 5108 of title 5, United States Code, relating to special authority to place positions at GS-16,17, and 18 of the General Schedule, are hereby repealed: (i) paragraphs (2), (4) through (11), and (13) through (16) of subsection (c), and (ii) subsections (d) through (g). (B) Notwithstanding any other provision of law (other than section 5 USC 5108 note. 5108 of such title 5), the authority granted to an agency (as defined in section 5102(a)(1) of such title 5) under any such provision to place one or more positions in GS-16, 17, or 18 of the General Schedule, is hereby terminated. (C) Subsection (a) of section 5108 of title 5, United States Code, is amended to read as follows: " (a) The Director of the Office of Personnel Management may establisih, and from time to time revise, the maximum numbers of positions (not to exceed an aggregate of 10,777) which may at any one time be placed in— "(i) GS-16,17, and 18; and "(ii) the Senior Executive Service, in accordance with section Ante, p. 1158. 3133 of this title. A position may be placed in GS-16, 17, or 18, only by action of the Director of the Office of Personnel Management. The authority of the Director under this subsection shall be carried out by the President in the case of positions proposed to be placed in GS-16,17, and 18 in the . Federal Bureau of Investigation.". ' J'' (D) Subsection (c) of section 5108 of title 5, United States Code, is amended— (i) by redesignating paragraph (3) as paragraph (2) and by inserting "and" at the end thereof; and (ii) by redesignating paragraph (12) as paragraph (3) and by striking out the semicolon at the end and inserting in lieu thereof a period. (2)(A) Notwithstanding any other provision of law (other than 5 USC 3104note, section 3104 of title 5, United States Code), the authority granted to

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 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1178

an agency (as defined in section 5102(a)(1) of such title 5) to establish scientific or professional positions outside of the General Schedule is hereby terminated. (B) Section 3104 of title 5, United States Code, is amended by striking out subsections (a) and (b) and inserting in lieu thereof the following: "(a)(1) The Director of the Office of Personnel Management may establish, and from time to time revise, the maximum number of scientific or professional positions (not to exceed 517) for carrying out research and development functions which require the services of specially qualified personnel which may be established outside of the General Schedule. Any such position may be established only by action of the Director. "(2) The provisions of paragraph (1) of this subsection shall not apply to any Senior Executive Service position (as defined in section Ante, p. 1155. 3132(a) of this title). "(3) In addition to the number of positions authorized by para,o,,fH.|p.graph (1) of this subsection, the Librarian of Congress may establish, without regard to the second sentence of paragraph (1) of this subsection, not more than 8 scientific or professional positions to carry out the research and development functions of the Library of Congress which require the services of specially qualified personnel.". (C) Subsection (c) of such section 3104 is amended— (i) by striking out " (c) " and inserting in lieu thereof " (b) "; and (ii) by striking out "to establish and fix the pay of positions under this section and section 5361 of this title" and inserting in .(Hi ftC'.:)• J {• lieu thereof "to fix under section 5361 of this title the pay for positions established under this section". 5 USC 3104, (3)(A) The provisions of paragraphs (1) and (2) of this subsection 5108 notes. shall not apply with respect to any position so long as the individual occupying such position on the day before the date of the enactment of this Act continues to occupy such position. (B) The Director— (i) in establishing under section 5108 of title 5, United States Code, the maximum number of positions which may be placed in GS-16, 17, and 18 of the General Schedule, and (ii) in establishing under section 3104 of such title 5 the maximum number of scientific or professional positions which may be established, ., shall take into account positions to which subparagraph (A) of this paragraph applies. (b)(1) Section 5311 of title 5, United States Code, is amended by inserting " (a) " before "The Executive Schedule," and by adding at the end thereof the following new subsection: Publication in "(b)(1) Not later than 180 days after the date of the enactment of Federal Register, the Civil Service Eeform Act of 1978, the Director shall determine the number and classification of executive level positions in existence in the executive branch on that date of enactment, and shall publish the determination in the Federal Register. Effective beginning on the date of the publication, the number of executive level positions within the executive branch may not exceed the number published under this subsection. "Executive level "(2) For the purpose of this subsection, 'executive level position' position."

means—

,,,-:.,:%.,.-.;...,:,,;,,,;:,.

.,•.:'

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 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1179

" (A) any office or position in the civil service the rate of pay for which is equal to or greater than the rate of basic pay payable for positions under section 5316 of this title, or "(B) any such office or position the rate of pay for which may be fixed by administrative action at a rate equal to or greater than the rate of basic pay payable for positions under section 5316 of this title; but does not include any Senior Executive Service position, as defined in section 3132(a) of this title.". (2) The President shall transmit to the Congress by January 1, 1980, a plan for authorizing executive level positions in the executive branch which shall include the maximum number of executive level positions necessary by level and a justification for the positions.

5 USC 5316.

Ante, p. 1155. Presidential transmittal to Congress. 5 USC 5311 note.

EFFECTIVE DATE; CONGRESSIONAL REVIEW

SEC. 415. (a)(1) The provisions of this title, other than sections 413 5 USC 3131 note, and 414(a), shall take effect 9 months after the date of the enactment of this Act. (2) The provisions of section 413 of this title shall take effect on the date of the enactment of this Act. (3) The provisions of section 414(a) of this title shall take effect 180 days after the date of the enactment of this Act. (b)(1) The amendments made by sections 401 through 412 of this title shall continue to have effect unless, during the first period of 60 calendar days of continuous session of the Congress begmning after 5 years after the effective date of such amendments, a concurrent resolution is introduced and adopted by the Congress disapproving the '"' continuation of the Senior Executive Service. Such amendments shall cease to have effect on the first day of the first fiscal year beginning after the date of the adoption of such concurrent resolution. (2) The continuity of a session is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period. (3) The provisions of subsections (d), (e), (f), (g), (h), (i), (j), and (k) of section 5305 of title 5, United States Code, shall apply with " respect to any concurrent resolution referred to in paragraph (1) of this subsection, except that for the purpose of this paragraph the reference in such subsection (e) to 10 calendar days shall be considered a reference to 30 calendar days. (4) Ihiring the 5-year period referred to in paragraph (1) of this subsection, the Director of the Office of Personnel Management shall include in each report required under section 3135 of title 5, United States Code (as added by this title) an evaluation of the effectiveness of the Senior Executive Service and the manner in which such Service is administered. TITLE V—MERIT PAY PAY FOR PERFORMANCE

SEC. 501. Part III of title 5, United States Code, is amended by inserting after chapter 53 the following new chapter:

39-194 O—80—pt. 1

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1234

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1180

> "CHAPTER 54—MERIT PAY AND CASH AWARDS <

5 USC 5401.

5 USC 7103.

Exclusions.

Presidential reports, transmittal to Congress. Filing of applications.

Review.

"Sec. "5401. "5402. "5403. "5404. "5405.

^ - * Purpose. Merit pay system. Cash award program. Report. Regulations.

"^

. -, . >.

' '

«§ 5401. Purpose "1 " (a) It is the purpose of this chapter to provide for— " (1) a merit pay system which shall— " (A) within available funds, recognize and reward quality performance by varying merit pay adjustments; "(B) use performance appraisals as the basis for determining merit pay adjustments; "(C) within available funds, provide for training to improve objectivity and fairness in the evaluation of performance; and " (D) regulate the costs of merit pay by establishing appro,, t priate control techniques; and "(2) a cash award program which shall provide cash awards for superior accomplishment and special service. "(b)(1) Except as provided in paragraph (2) of tnis subsection, this chapter shall apply to any supervisor or management official (as defined m paragraphs (10) and (11) of section 7103 of this title, respectively) who is in a position which is in GS-13, 14, or 15 of the General Schedule described in section 5104 of this title. "(2)(A) Upon application under subparagraph (C) of this paragraph, the President may, in writing, exclude an agency or any unit of an agency from the application of this chapter if the President considers such exclusion to be required as a result of conditions arising from— "(i) the recent establishment of the agency or unit, or the implementation of a new program, "(ii) an emergency situation, or ^ *; ^^ / • " (iii) any other situation or circumstance. "(B) Any exclusion under this paragraph shall not take effect earlier than 30 calendar days after the President transmits to each House of the Congress a report describing the agency or unit to be excluded and the reasons therefor. "(C) An application for exclusion under this paragraph of an agency or any unit of an agency shall be filed by the head of the agency with the Office of Personnel Management, and shall set forth reasons why the agency or unit should be excluded from this chapter. The Office shall review the application and reasons, undertake such other review as it considers appropriate to deterhiine whether the agency or unit should be. excluded from the coverage of this chapter, and upon completion of its review, recommend to the President whether the agency or unit should be so excluded. "(D) Any agency or unit which is excluded pursuant to this paragraph shall, insofar as practicable, make a sustained effort to eliminate the conditions on which the exclusion is based. " (E) The Office shall periodically review any exclusion from coverage and may at any time recommend to the President that an exclusion under this paragraph be revoked. The President may at any time revoke, in writing, any exclusion under this paragraph.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1235

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1181

"§ 5402. Merit pay system

5 USC 5402.

" (a) In accordance with the purpose set forth in section 5401(a)(1) of this title, the Office of Personnel Management shall establish a merit pay system which shall provide for a range of basic pay for each grade to which the system applies, which range shall be limited by the minimum and maximum rates of basic pay payable for each grade under chapter 53 of this title. " (b)(1) Under regulations prescribed by the Office, the head of each agency may provide for increases within the range of basic pay for any employee covered by the merit pay system. "(2) Determinations to provide pay increases under this subsection— "(A) may take into account individual performance and organizational accomplishment, and "(B) shall be based on factors such as— "(i) any improvement in efficiency, productivity, and quality of work or service, including any significant reduction '-^ in paperwork; "(ii) cost efficiency; '; "(iii) timeliness of performance; and "(iv) other indications of the effectiveness, productivity, and quality of performance of the employees for whom the employee is responsible; "(C) sihall be subject to review only in accordance with and to the extent provided by procedures established by the head of the agency; and "(D) shall be made in accordance with regulations issued by the Office which relate to the distribution of increases authorized under this subsection. "(3) For any fiscal year, the head of any agency may exercise authority under paragraph (1) of this subsection only to the extent of the funds available for the purpose of this subsection. " (4) The funds available for the purpose of this subsection to the head of any agency for any fiscal year shall be determined before the beginning of the fiscal year by the Office on the basis of the amount estimated by the Office to be necessary to reflect— "(A) within-grade step increases and quality step increases which would have been paid under subchapter III of chapter 53 of this title during the fiscal year to the employees of the agency covered by the merit pay system if the employees were not so covered; and "(B) adjustments under section 5305 of this title which would have been paid under such subchapter during the fiscal year to such employees if the employees were not so covered, less an amount reflecting the adjustment under subsection (c)(1) of this section in rates of basic pay payable to the employees for the fiscal year. " (c)(1) Effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under section 5305 of this title, the rate of basic pay for any position under this chapter shall be adjusted by an amount equal to the greater of— "(A) one-half of the percentage of the adjustment in the annual rate of pay which corresponds to the percentage generally

Establishment,

5 USC 5301 ^«9-

^ j

.

5 USC 5331. 5 USC 5305.

Effective date,

f

--

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1236

 92 STAT. 1182

5 USC 5941.

5 USC 5403.

Presidential cash awards.

^^HM

^'.

Payment of awards.

PUBLIC LAW 95-454—OCT. 13, 1978 applicable to positions not covenid by the merit pay system in the same grade as the position; or " (B) such greater amount of such percentage of such adjustment in the annual rate of pay as may be determined by the Office. " (2) Any employee whose position is brought under the merit pay system shall, so long as the employee continues to occupy the position, be entitled to receive basic pay at a rate of basic pay not less than the rate the employee was receiving when the position was brought under the merit pay system, plus any subsequent adjustment under paragraph (1) of this subsection. " (3) No employee to whom this chapter applies may be paid less than the minimum rate of basic pay of the grade of the employee's position. " (d) Under regulations prescribed by the Office, the benefit of advancement through the range of basic pay for a g r a d e shall be preserved for any employee covered by the merit pay system whose continuous service is interrupted in the public interest by service with the armed forces, or by service in essential non-Government civilian employment during a period of war or national emergency. " (e) For the purpose of section 5941 of this title, rates of basic pay of employees covered by the merit pay system shall be considered rates of basic pay fixed by statute. "§5403. Cash award program " (a) The head of any agency may pay a cash award to, and incur necessary expenses for the honorary recognition of, any employee covered by the merit pay system who— " (1) by the employee's suggestion, invention, superior accomplishment, or other personal effort, contributes to the efficiency, economy, or other improvement of Government operations or achieves a significant reduction in p a p e r w o r k; or " (2) performs a special act or service in the public interest in connection with or related to the employee's Federal employment. " (b) The President may pay a cash award to, and incur necessary expenses for the honorary recognition of, any employee covered by the merit pay system who— " (1) by the employee's suggestion, invention, superior accomplishment, or other personal effort, contributes to the efficiency, economy, or other improvement of Government operations or achieves a significant reduction in p a p e r w o r k; or " (2) performs an exceptionally meritorious special act or service in the public interest in connection with or related to the employee's Federal employment. A Presidential cash award may be in addition to an agency cash award under subsection (a) of this section. " (c) A cash award to any employee under this section is in addition to the basic pay of the employee under section 5402 of this title. Acceptance of a cash award under this section constitutes an agreement that the use by the Government of any idea, method, or device for which the award is made does not form the basis of any claim of any nature against the Government by the employee accepting the award, or the employee's heirs or assigns. " (d) A cash award to, and expenses for the honorary recognition of, any employee covered by the merit pay system may be paid from the fund or appropriation available to the activity primarily benefiting, or the various activities benefiting, from the suggestion, invention,

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1237

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1183

superior accomplishment, or other meritorious effort of the employee. The head of the agency concerned shall determine the amount to be contributed by each activity to any agency cash award under subsection (a) of this section. The President shall determine the amount to be contributed by each activity to a Presidential award under subsection (b) of this section, "(e)(1) Except as provided in paragraph (2) of this subsection, a cash award under this section may not exceed $10,000. "(2) If the head of an agency certifies to the Office of Personnel Management that the suggestion, invention, superior accomplishment, or other meritorious effort of an employee for which a cash award is proposed is highly exceptional and unusually outstanding, a cash award in excess of $10,000 but not in excess of $25,000 may be awarded to the employee on the approval of the Office. "(f) The President or the head of an agency may pay a cash award under this section notwithstanding the death or separation from the service of an employee, if the suggestion, invention, superior accomplishment, or other meritorious effort of the employee for which the award is proposed was made or performed while the employee was covered by the merit pay system. "§ 5404. Report "The Office of Personnel Management shall include in each annual report required by section 1308(a) of this title a report on the operation of the merit pay system and the cash award program established under this chapter. The report shall include— "(1) an analysis of the cost and effectiveness of the merit pay system and the cash award program; and "(2) a statement of the agencies and units excluded from the coverage of this chapter under section 5401(b)(2) of this title, the reasons for which each exclusion was made, and whether the exclusion continues to be warranted. "§•5405. Regulations "The Office of Personnel Management shall prescribe regulations to carry out the purpose of this chapter.".

Limitation,

5 USC 5404. 5 USC 1308.

5 USC 5405.

INCENTIVE AWARDS AMENDMENTS

SEC. 502. (a) Section 4503(1) of title 5, United States Code, is amended by inserting after "operations" the following: "or achieves a significant reduction in paperwork". (b) Section 4504(1) of title 5, United States Code, is amended by inserting after "operations" the following: "or achieves a significant reduction in paperwork". TECHNICAL AND CONFORMING AMENDMENTS

SEC. 503. (a) Section 4501(2)(A) of title 5, United States Code, is amended by striking out "; and" and inserting in lieu thereof ", but does not include an employee covered by the merit pay system established under section 5402 of this title; and". (b) Section 4502(a) of title 5, United States Code, is amended by striking out "$5,000" and inserting in lieu thereof "$10,000". (c) Section 4502(b) of title 5, United States Code, is amended— (1) by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management";

-.;^;....

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1238

 92 STAT. 1184

.^, '.CI i,r.,r

" .?•;<. V • r

St:

^ iJ <

PUBLIC LAW 95-454—OCT. 13, 1978 (2) by striking out "$5,000" and inserting in lieu thereof "$10,000"; and (3) by striking out "the Commission" and inserting in lieu thereof "the Office". (d) Section 4506 of title 5, United States Code, is amended by striking out "Civil Service Commission may" and inserting in lieu thereof "Office of Personnel Management shall". (e) The second sentence of section 5332(a) of title 5, United States Code, is amended by inserting after "applies" the following: ", except an employee covered by the merit pay system established under section 5402 of this title,". (f) Section 5334 of title 5, United States Code (as amended in section 801(a)(3)(G) of this Act), is amended—• (1) in paragraph (2) of subsection (c), by inserting ", or for an employee appointed to a position covered by the merit pay system established under section 5402 of this title, any dollar amount," after "step"; and (2) by adding at the end thereof the following new subsection: "(f) In the case of an employee covered by the merit pay system established under section 5402 of this title, all references in this section to 'two steps' or 'two step-increases' shall be deemed to mean 6 percent.". (g) Section 5335(e) of title 5, United States Code, is amended by inserting after "individual" the following: "covered by the merit pay system established under section 5402 of this title, or,". (h) Section 5336(c) of title 5, United States Code, is amended by inserting after "individual" the following: "covered by the merit pay system established under section 5402 of this title, or,". (i) The table of chapters for part III of title 5, United States Code, is amended by inserting after the item relating to chapter 53 the following new item: 5401". ' '
 * 54. Merit Pay and Cash Awards

•'••••'•••

•••''•'

EFFECTIVE

DATE

5 USC 5401 note.

SEC. 504. (a) The provisions of this title shall take effect on the first day of the first applicable pay period which begins on or after October 1, 1981, except that such provisions may take effect with respect to any category or categories of positions before such day to the extent prescribed by the Director of the Office of Personnel Management. 5 USC 5404 note. (b) The Director of the Office of Personnel Management shall include in the first report required under section 5404 of title 5, United States Code (as added by this title), information with respect to the progress and cost of the implementation of the merit pay system and the cash award program established under chapter 54 of such title (as added by this title). TITLE VI—KESEARCH, DEMONSTRATION, AND OTHER PROGRAMS RESEARCH PROGRAMS

AND DEMONSTRATION

PROJECTS

SEC. 601. (a) Part III of title 5, United States Code, is amended by adding at the end of subpart C thereof the following new chapter:

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1239

 PUBLIC LAW 95-454^0CT. 13, 1978 "CHAPTER 47—PERSONNEL RESEARCH PROGRAMS AND DEMONSTRATION PROJECTS "Sec. "4701. "4702. "4703. "4704. "4705. "4706.

92 STAT. 1185 •

>

Definitions. Kesearch programs. Demonstration projects. Allocation of funds. Reports. Regulations.

"§4701. Definitions 5 USC 4701. "(a) For the pvirpose of this chapter— "(1) 'agency' means an Executive agency, the Administrative Office of the United States Courts, and the Government Printing Office, but does not include— "(A) a Government corporation; "(B) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof which is designated by the President and which has as its principal function the conduct of foreign intelligence or counterintelligence activities; or "(C) the General Accounting Office; "(2) 'employee' means an individual employed in or under an agency; . ^ "(3) 'eligible' means an individual who has qualified for appointment in an agency and whose name has been entered on the appropriate register or list of eligibles; •'•' ' "(4) 'demonstration project'means a project conducted by the Office of Personnel Management, or under its supervision, to determine whether a specified change in personnel management policies or procedures would result in improved Federal personnel management; and "(5) 'research program' means a planned study of the manner in which public management policies and systems are operating, the effects of those policies and systems, the possibilities for change, and comparisons among policies and systems. "(b) This subchapter shall not apply to any position in the Drug Enforcement Administration which is excluded from the competitive service under section 201 of the Crime Control Act of 1976 (5 U.S.C. 5108note; 90 Stat. 2425). "§ 4702. Research programs 5 USC 4702. "The Office of Personnel Management shall— "(1) establish and maintain (and assist in the establishment and maintenance of) research programs to study improved • methods and technologies in Federal personnel management; '"(2) evaluate the research programs established under paragraph (1) of this section; ? "(3) establish and maintain a program for the collection and public dissemination of information relating to personnel management research and for encouraging and facilitating the ' exchange of information among interested persons and entities; and "(4) carry out the preceding functions directly or through agreement or contract.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1240

 92 STAT. 1186 5 USC 4703.

Plan development.

Publication in Federal Register. Hearing. Notification.

PUBLIC LAW 95-454—OCT. 13, 1978

"§4703. Demonstration projects " (a) Except as provided in this section, the Office of Personnel Management may, directly or through agreement or contract with one or more agencies and other public and private organizations, conduct and evaluate demonstration projects. Subject to the provisions of this section, the conducting of demonstration projects shall not be limited by any lack of specific authority under this title to take the action contemplated, or by any provision of this title or any rule or regulation prescribed under this title which is inconsistent with the action, including any law or regulation relating to— " (1) the methods of establishing qualification requirements for, recruitment for, and appointment to positions; "(2) the methods of classifying positions and compensating employees; "(3) the methods of assigning, reassigning, or promoting employees; " (4) the methods of disciplining employees; "(5) the methods of providing incentives to employees, including the provision of group or individual incentive bonuses or pay; " (6) the hours of work per day or per week; "(7) the methods of involving employees, labor organizations, and employee organizations in personnel decisions; and "(8) the methods of reducing overall agency staff and grade levels. "(b) Before conducting or entering into any agreement or contract to conduct a demonstration project, the Office shall— "(1) develop a plan for such project which identifies— " ^ A) the purposes of the proj ect; "(B) the types of employees or eligibles, categorized by occupational series, grade, or organizational unit; "(C) the number of employees or eligibles to be included, in the aggregate and by category; " ^ D) the methodology; " (:E) the duration; E) "' '' "(F) the training to be provided; "(G) the anticipated costs; "(H) the methodology and criteria for evaluation; "(I) a specific description of any aspect of the project for which there is a lack of specific authority; and " (J) a specific citation to any provision of law, rule, or regulation which, if not waived under this section, would prohibit the conducting of the project, or any part of the project as proposed; " (2) publish the plan in the Federal Register; "(3) submit the plan so published to public hearing; " (4) provide notification of the proposed project, at least 180 days in advance of the date any project proposed under this section is to take effect— "(A) to employees who are likely to be affected by the project; and "(B) to each House of the Congress; "(5) obtain approval from each agency involved of the final version of the plan; and

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1241

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1187

" (6) provide each House of the Congress with a report at least Report to,.,!,, 90 days m advance of the date the project is to take effect setting Congress, forth the final version of the plan as so approved. " (c) No demonstration project under this section may provide for a waiver of— "(1) any provision of chapter 63 or subpart G of this title; 5 USC 6301 ^ " (2)(A) any provision of law referred to in section 2302(b)(1) e« seq., 8101. of this title; or _ Ante, ^. l\\4>. "(B) any provision of law implementing any provision of law referred to in section 2302(b)(1) of this title by— "(i) providing for equal employment opportunity through ""' affirmative action; or "(ii) providing any right or remedy available to any employee or applicant for employment in the civil service; "(3) any provision of chapter 15 or subchapter III of chapter 5 USC 1501 73 of this title;

_

_

"(4) any rule or regulation prescribed under any provision of law referred to in paragraph (1), (2), or (3) of this subsection; or " (5) any provision of chapter 23 of this title, or any rule or regulation prescribed under this title, if such waiver is inconsistent with any merit system principle or any provision thereof relating to prohibited personnel practices. "(d)(1) Each demonstration project shall— "(A) involve not more than 5,000 individuals other than individuals in any control groups necessary to validate the results of the project; and "(B) terminate before the end of the 5-year period beginning on the date on which the project takes effect, except that the project may continue beyond the date to the extent necessary to validate the results of the project. "(2) Not more than 10 active demonstration projects may be in effect at any time. "(e) Subject to the terms of any written agreement or contract between the Office and an agency, a demonstration project involving the agency may be terminated by the Office, or the agency, if either determines that the project creates a substantial hardship on, or is not in the best interests of, the public, the Federal Government, employees, or eligibles. "(f) Employees within a unit with respect to which a labor organization is accorded exclusive recognition under chapter 71 of this title shall not be included within any project under subsection (a) of this section— "(1) if the project would violate a collective bargaining agreement (as defined in section 7103(8) of this title) between the agency and the labor organization, unless there is another written agreement with respect to the project between the agency and the organization permitting the inclusion; or (2) if the project is not covered by such a collective bargaining agreement, until there has been cx>nsultation or negotiation, as appropriate, by the agency with the labor organization. "(g) Employees within any unit with respect to which a labor organization has not been accorded exclusive recognition under Chapter 71 of this title shall not be included within any project under subsection (a) of this section unless there has been agency consultation regarding the project with the employees in the unit.

et seq.

5 USC 7321. Ante, p. 1113. ,,

Termination,

Post, p. 1191.

Post, p. 1192.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1242

 92 STAT. 1188 Evaluations.

5 USC 4704.

irt: = jt \ it j ' 5 USC 4705. 5 USC 1308.

5 USC 4706.

PUBLIC LAW 95-454—OCT. 13, 1978 "(h) The Office shall provide for an evaluation of the results of each demonstration project and its impact on improving public management. "(i) Upon request of the Director of the Office of Personnel Management, agencies shall cooperate with and assist the Office, to the extent practicable, in any evaluation undertaken under subsection (h) of this section and provide the Office with requested information and reports relating to the conducting of demonstration projects in their respective agencies. "§ 4704. Allocation of funds "Funds appropriated to the Office of Personnel Management for the purpose of this chapter may be allocated by the Office to any agency conducting demonstration projects or assisting the Office in conducting such projects. Funds so allocated shall remain available for such period as may be specified in appropriation Acts. No contract shall be entered into under this chapter unless the contract has been provided for in advance in appropriation Acts, '*§ 4705. Reports "The Office of Personnel Management shall include in the annual report required by section 1308(a) of this title a summary of research programs and demonstration projects conducted during the year covered by the report, the effect of the programs and projects on improving public management and increasing Government efficiency, and recommendations of policies a?id procedures which will improve such management and efficiency. ,,. «§4706. Regulations "The Office of Personnel Management shall prescribe regulations to carry out the purpose of this chapter.". (b) The table of chapters for part III of title 5, United States Code, is amended by inserting after the item relating to chapter 45 the following new item: "47. Personnel Research Programs and Demonstration Projects 4701". INTERGOVERNMENTAL, PERSONNEL ACT AMENDMENTS

i *'' 1 "

SEC. 602. (a) Section 208 of the Intergovernmental Personnel Act of 1970 (42 U.S.C. 4728) is amended— (1) by striking out the section heading and inserting in lieu thereof the following: " TRANSFER OF F U N C T I O N S A N D ADMINISTRATION OF MERIT POLICIES";

(2) by redesignating subsections (b), (c), (d), (e), and (f) as subsections (c), (d), (e), (f), and (g), respectively, and by inserting after subsection (a) the following new subsection: "(b) In accordance with regulations of the Office of Personnel Management, Federal agencies may require as a condition of participation in assistance programs, systems of personnel administration consistent with personnel standards prescribed by the Office for positions engaged in carrying out such programs. The standards shall— "(1) include the merit principles in section 2 of this Act; "(2) be prescribed in such a manner as to minimize Federal intervention in State and local personnel administration."; and

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1243

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1189

(3) by striking out the last subsection and inserting in lieu thereof the following new subsection. " (h) Effective one year after the date of the enactment of the Civil Grants-in-aid, Service Reform Act of 1978, all statutory personnel requirements abolition of established as a condition of the receipt of Federal grants-in-aid by certain requirements. State and local governments are hereby abolished, except— "(1) requirements prescribed under laws and regulations referred to in subsection (a) of this section; !, "(2) requirements that generally prohibit discrimination in employment or require equal employment opportunity; 40 USC "(3) the Davis-Bacon Act (40 U.S.C. 276 et seq.); and " (4) chapter 15 of title 5, United States Code, relating to polit- 2768-276a-5. ical activities of certain State and local employees.". (b) Section 401 of such Act (84 Stat. 1920) is amended by striking 5 USC 3371 note, out "governments and institutions of higher education" and inserting in lieu thereof "governments, institutions of higher education, and other organizations". (c) Section 403 of such Act (84 Stat. 1925) is amended by inserting " (a) " after "403.", and by adding at the end thereof the following new subsection: "(b) Effective beginning on the effective date of the Civil Service Reform Act of 1978, the provisions of section 314(f) of the Public Health Service Act (42 U.S.C. 246(f)) applicable to commissioned officers of the Public Health Service Act are hereby repealed.". (d) Section 502 of such Act (42 U.S.C. 4762) is amended in paragraph (3) by inserting "the Trust Territory of the Pacific Islands," before "and a territory or possession of the United States,". (e) Section 506 of such Act (42 U.S.C. 4766) is amended— (1) in subsection (b)(2), by striking out "District of Columbia" and inserting in lieu thereof "District of Columbia, the < Commonwealth of Puerto Rico, Guam, American Samoa, and the Virgin Islands"; and (2) in subsection (b)(5), by striking out "and the District of Columbia" and inserting in lieu thereof ", the District of Colum. bia, the Commonwealth of Puerto Rico, Guam, American Samoa, and the Virgin Islands". AMENDMENTS TO THE MOBILITY PROGRAM

SEC. 603. (a) Section 3371 of title 5, United States Code, is amended— (1) by inserting "the Trust Territory of the Pacific Islands," after "Puerto Rico," in paragraph (1)(A); and (2) by striking out "and" at the end of paragraph (1), by striking out the period at the end of paragraph (2) and inserting a semicolon in lieu thereof, and by adding at the end thereof the following: "(3) 'Federal agency' means an Executive agency, military department, a court of the United States, the Administrative Office of the United States Courts, the Library of Congress, the Botanic Garden, the Government Printing Office, the Congressional Budget Office, the United States Postal Service, the Postal Rate Commission, the Office of the Architect of the Capitol, the Office of Technology Assessment, and such other similar agencies of the legislative and judicial branches as determined appropriate by the Office of Personnel Management; and

"Federal agency."

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1244

 PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T. 13, 1978

92 STAT. 1190 "Other ^ organization."

n

"(4) 'other organization'means— "(A) a national, regional, State-wide, area-wide, or metropolitan organization representing member State or local governments; "(B^ an association of State or local public officials; or ' "(C) a nonprofit organization which has as one of its prinBJ!O' cipal functions the offering of professional advisory, research, educational, or development services, or related services, to governments or universities concerned with public management.". ' ' (b) Sections 3372 through 3375 of title 5, United States Code, are amended by striking out "executive agency" and "an executive agency" each place they appear and inserting in lieu thereof "Federal agency" .fiiOf: and "a Federal agency", respectively. (c) Section 3372 of title 5, United States Code, is further amended—• (1) in subsection (a)(1), by inserting after "agency" the following: ", other than a noncareer appointee, limited term appointee, or limited emergency appointee (as such terms are defined in section 3132(a) of this title) in the Senior Executive Service and an employee in a position which has been excepted from the competitive service by reason of its confidential, policydetermining, policy-making, or policy-advocating character,"; (2) in subsection (b)(1), by striking out "and"; (3) in subsection (b)(2), by striking out the period after "agency" and inserting in lieu thereof a semicolon; (4) by adding at the end of subsection (b) the following: "(3) an employee of a Federal agency to any other organization; and "(4) an employee of an other organization to a Federal agency."; and (5) by adding at the end thereof (as amended in paragraph (4) of this subsection) the following new subsection: "(c)(1) An employee of a Federal agency may be assigned under this subchapter only if the employee agrees, as a condition of accepting an assignment under this subchapter, to serve in the civil service upon the completion of the assignment for a period equal to the length of the assignment. "(2) Each agreement required under paragraph (1) of this subsection shall provide that in the event the employee fails to carry out the agreement (except for good and sufficient reason, as determined by the head of the Federal agency from which assigned) the employee shall be liable to the United States for payment of all expenses (excluding salary) of the assignment. The amount shall be treated as a debt due the United States.". (d) Section 3374 of title 5, United States Code, is further amended— (1) by adding at the end of subsection (b) the following new, sentence: "The above exceptions shall not apply to non-Federal employees who 5 USC 8301 et are covered by chapters 83, 87, and 89 of this title by virtue of their seq., 8701 et seq., non-Federal employment immediately before assignment and appointmiletseq. ment under this Section."; (2) in subsection (c)(1), by striking out the semicolon at the end thereof and by inserting in lieu thereof the following: ", except to the extent that the pay received from the State or local
 * government is less than the appropriate rate of pay which the

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1245

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1191

duties would w a r r a n t under the applicable p a y provisions of this title or other applicable authority; "; and (3) by striking out the period at the end of subsection (c) and inserting in lieu thereof the following: ", or for the contribution of the State or local government, or a part thereof, to employee benefit systems.", (e) Section 3375(a) of title 5, United States Code, is further amended by striking out " and " at the end of paragraph (4), by redesignating paragraph (5) as paragraph (6), and by inserting after paragraph (4) the following; " (5) section 5724a(b) of this title, to be used by the employee for miscellaneous expenses related to change of station where movement or storage of household goods is involved; and". TITLE V n — FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS

SEC. 701. So much of subpart F of part III of title 5, United States Code, as precedes subchapter II of chapter 71 thereof is amended to read as follows:

"Subpart F—Labor-Management and Employee Relations "CHAPTER 71—LABOR-MANAGEMENT RELATIONS "Sec. "7101. "7102. "7103. "7104. "7105. "7106.

"SUBCHAPTER

I—GENERAL PROVISIONS

Findings and purpose. Employees' rights. Definitions; application. Federal Labor Relations Authority. Powers and duties of the Authority. Management rights.

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"SUBCHAPTER II—RIGHTS AND DUTIES OP AGENCIES AND LABOR ORGANIZATIONS "Sec. "7111. Exclusive recognition of labor organizations. "7112. Determination of appropriate units for labor organization representation. "7113. National consultation rights. "7114. Representation rights and duties. "7115. Allotments to representatives. "7116. Unfair labor practices. "7117. Duty to bargain in good faith; compelling need; duty to consult "7118. Prevention of unfair labor practices. "7119. Negotiation impasses; Federal Service Impasses Panel. "7120. Standards of conduct for labor organizations. "SUBCHAPTER III—GRIEVANCES, APPEALS, AND REVIEW "Sec.

"7121. Grievance procedures. "7122. Exceptions to arbitral awards. "7123. Judicial review; enforcement.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1246

 92 STAT. 1192

5 USC 7101. ^

5 USC 7102.

5 USC 7103.

PUBLIC LAW 95-454—OCT. 13, 1978 "SUBCHAPTER IV—ADMINISTRATIVE AND OTHER PROVISIONS "Sec. "7131. Official time. "7132. Subpenas. i.' ^?. j. i T;J:• 'i "7133. Compilation and publication of data. "7134. Regulations. "7135. Continuation of existing laws, recognitions, agreements, and procedures. "SUBCHAPTER I—GENERAL PROVISIONS «§ 7101. Findings and purpose "(a) The Congress finds that— "(1) experience in both private and public employment indicates that the statutory protection of the right of employees to ,^,. organize, bargain collectively, and participate through labor ' ^ organizations of their own choosing in decisions which alffect them— " (A) safeguards the public interest, "(B) contributes to the effective conduct of public business, and "(C) facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment; and "(2) the public interest demands the highest standards of employee performance and the continued development and implementation of modern and progressive work practices to facilitate and improve employee performance and the efficient accomplishment of the operations of the Government. Therefore, labor organizations and collective bargaining in the civil service are in the public interest. "(b) It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government. «§7102. Employees'rights "Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right— "(1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and "(2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter. "§7103. Definitions; application - .,,. " (a) For the purpose of this chapter— "(1) 'person' means an individual, labor organization, or agency;

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1247

 PUBLIC LAW 95-454—OCT. 13, 1978 " (2) 'employee' means an individual— " ^ A^ employed in an agency; or "(B) whose employment in an agency has ceased because of any unfair labor practice under section 7116 of this title and who has not obtained any other regular and substantially equivalent employment, as determined under regulations prescribed by the Federal Labor Relations Authority; but does not mclude— "(i) an alien or noncitizen of the United States who occupies a position outside the United States; . " (ii) a member of the uniformed services; "(iii) a supervisor or a management official; "(iv) an officer or employee in the Foreign Service of the United States employed in the Department of State, the Agency for International Development, or the International Communication Agency; or "(v) any person who participates in a strike in violation of section 7311 of this title; "(3) 'agency' means an Executive agency (including a nonappropriated fund instrumentality described in section 2105(c) of this title and the Veterans' Canteen Service, Veterans' Administration), the Library of Congress, and the Government Printing Office, but does not include— "(A) the General Accounting Office; , "(B) the Federal Bureau of Investigation; "(C) the General Intelligence Agency; "(D) the National Security Agency; " (E) the Tennessee Valley Authority; " (F) the Federal Labor Relations Authority; or "(G) the Federal Service Impasses Panel; "(4) 'labor organization' means an organization composed in whole or in part of employees, in which employees participate and pay dues, and which has as a purpose the dealing with an agency concerning grievances and conditions of employment, but does not include— "(A) an organization which, by its constitution, bylaws, tacit agreement among its members, or otherwise, denies membership because of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition; "(B) an organization which advocates the overthrow of the constitutional form of government of the United States; " (C) an organization sponsored by an agency; or "(D) an or^nization which participates in the conduct of a strike agamst the Government or any agency thereof or imposes a duty or obligation to conduct, assist, or participate in such a strike; "(5) 'dues' means dues, fees, and assessments; "(6) 'Authority'means the Federal Labor Relations Authority described in section 7104(a) of this title; "(7) 'Panel' means the Federal Service Impasses Panel described in section 7119(c) of this title; "(8) 'collective bargaining agreement' means an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter;

92 STAT. 1193

5 USC 7311. 5 USC 2105.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1248

 92 STAT. 1194

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5 USC 7321.

PUBLIC LAW 95-454—OCT. 13, 1978 "(9) 'grievance' means any complaint— "(A) by any employee concerning any matter relating to the employment of the employee; "(B) by any labor organization concerning any matter relating to the employment of any employee; or "(C) by any employee, labor organization, or agency concerning— "(i) the effect or interpretation, or a claim of breach, < I.. of a collective bargaining agreement; or"(ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment; "(10) 'supervisor' means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, except that, with respect to any unit which includes firefighters or nurses, the term 'supervisor' includes only those individuals who devote a preponderance of their employment time to exercising such authority; "(11) 'management official' means an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency; "(12) 'collective bargaining' means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession; "(13) 'confidential employee' means an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labormanagement relations; "(14) 'conditions of employment' means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters— "(A) relating to political activities prohibited under subchapter III of chapter 73 of this title; "(B) relating to the classification of any position; or "(C) to the extent such matters are specifically provided for by Federal statute: "(15) 'professional employee'means— "(A) an employee engaged in the performance of work— "(i) requiring knowledge of an advanced type in ': a field of science or learning customarily acquired by a 0 prolonged course of specialized intellectual instruction

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1249

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1195

and study in an institution of higher learning or a hospi.. tal (as distinguished from knowledge acquired by a general academic education, or from an apprenticeship, or from training in the performance of routine mental, .., manual, mechanical, or ph;7sical activities); "(ii) requiring the consistent exercise of discretion and judgment in its performance; "(iii) which is predominantly intellectual and varied in character (as distinguished from routine mental, manual, mechanical, or physical work); and "(iv) which is of such character that the output produced or the result accomplished by such work cannot be standardized in relation to a given period of time; or "(B) an employee who has completed the courses of specialized intellectual instruction and study described in subparagraph (A)(i) of this paragraph and is performing related work under appropriate direction or guidance to qualify the employee as a professional employee described in subparagraph (A) of this paragraph; "(16) 'exclusive representative' means any labor organization which— i " (A) is certified as the exclusive representative of employees in an appropriate unit pursuant to section 7111 of this title; or "(B) was recognized by an agency immediately before the effective date of this chapter as the exclusive representative of employees in an appropriate unit— "(i) on the basis of an election, or "(ii) on any basis other than an election, and continues to be so recognized in accordance with the provisions of this chapter; " (17) 'firefighter' means any employee engaged in the performance of work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment; and "(18) 'United States' means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, the Trust Territory of the Pacific Islands, and any territory or possession of the United States. "(b)(1) The President may issue an order excluding any agency Presidential or subdivision thereof from coverage under this chapter if the Presi- order. dent determines that— "(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and "(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations. "(2) The President may issue an order suspending any provision Presidential of this chapter with respect to any agency, installation, or activity order, located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.

39-194 O—80—pt. 1

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1250

 92 STAT. 1196 5 USC 7104.

PUBLIC LAW 95-454—OCT. 13, 1978

«§ 7104. Federal Labor Relations Authority "(a) The Federal Labor Relations Authority is composed of three members, not more than 2 of whom may be adherents of the same political party. No member shall engage in any other business or employment or hold another office or position in the Government of the United States except as otherwise provided by law. "(b) Members of the Authority shall be appointed by the President by and with the advice and consent of the Senate, and may be removed by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office. The President shall designate one member to serve as Chairman of the Authority. "(c)(1) One of the original members of the Authority shall be appointed for a term of 1 year, one for a term of 3 years, and the Chairman for a term of 5 yeais. Thereafter, each member shall be appointed for a term of 5 years. "(2) Notwithstanding paragraph (1) of this subsection, the term of any member shall not expire before the earlier of— "(A) the date on which the member's successor takes office, or "(B) the last day of the Congress beginning after the date on which the member's term of office would (but for this subparagraph) expire. An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced. "(d) A vacancy in the Authority shall not impair the right of the remaining members to exercise all of the powers of the Authority. Report to "(e) The Authority shall make an annual report to the President President. for transmittal to the Congress which shall include information as to the cases it has heard and the decisions it has rendered. "(f)(1) The General Counsel of the Authority shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The General Counsel may be removed at any time by the President. The General Counsel shall hold no other office or position in the Government of the United States except as provided by Jaw. "(2) The General Counsel may— "(A) investigate alleged unfair labor practices under this chapter, "(B) file and prosecute complaints under this chapter, and "(C) exercise such other powers of the Authority as the U'Ur.ih.-y^'^ ' Authority may prescribe., u^g^ rpjjg General Counsel shall have direct authority over, and lesponsibility for, all employees in the office of General Counsel, including employees of the General Counsel in the regional offices of the Authority. 5 USC 7105. «§ 7105. Powers and duties of the Authority ' "(a)(1) The Authority shall provide leadership in establishing policies and guidance relating to matters under this chapter, and, ... except as otherwise provided, shall be responsible for carrying out i- T;! ^j^^ purpose of this chapter. " (2) The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority— "(A) determine the appropriateness of units for labor organization representation under section 7112 of this title; " (B) supervise or conduct elections to determine whether a labor organization has been selected as an exclusive representative

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1251

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1197

by a majority of the employees in an appropriate unit and otherI wise administer the provisions of section 7111 of this title relating to the according of exclusive recognition to labor organizations; "(C) prescribe criteria and resolve issues relating to the granting of national consultation rights under section 7113 of this title; "(D) prescribe criteria and resolve issues relating to determining compelling need for agency rules or regulations under section 7117(b) of this title; " (E) resolves issues relating to the duty to bargain in good faith under section 7117(c) of this title; " (F) prescribe criteria relating to the granting of consultation ' ^' rights with respect to conditions of employment under section 7117(d) of this title; " (G) conduct hearings and resolve complaints of unfair labor Hearings, practices under section 7118 of this title; " (H) resolve exceptions to arbitrator's awards under section 7122of this title; and " (I) take such other actions as are necessary and appropriate to effectively administer the provisions of this chapter. "(b) The Authority shall adopt an official seal which shall be judicially noticed. "(c) The principal office of the Authority shall be in or about the District of Columbia, but the Authority may meet and exercise any or all of its powers at any time or place. Except as otherwise expressly provided by law, the Authority may, by one or more of its members or by such agents as it may designate, make any appropriate inquiry necessary to carry out its duties wherever persons subject to this chapter are located. Any member who participates in the inquiry shall not be disqualified from later participating in a decision of the Authority in any case relating to the inquiry. ,- r •„^ "(d) The Authority shall appoint an Executive Director and such regional directors, administrative law judges under section 3105 of this title, and other individuals as it may from time to time find neces- 5 USC 3105. sary for the proper performance of its functions. The Authority may delegate to officers and employees appointed under this subsection authority to perform such duties and make such expenditures as may be necessary. "(e)(1) The Authority may delegate to any regional director its authority under this chapter— " (A) to determine whether a group of employees is an appropriate unit; "(B) to conduct investigations and to provide for hearings; "(C) to determine whether a question of representation exists and to direct an election; and "(D) to supervise or conduct secret ballot elections and certify the results thereof. "(2) The Authority may delegate to any administrative law judge appointed under subsection (d) of this section its authority under section 7118 of this title to determine whether any person has engaged in or is engaging in an unfair labor practice. "(f) If the Authority delegates any authority to any regional director or administrative law judge to take any action pursuant to subsection (e) of this section, the Authority may, upon application by any interested person filed within 60 days after the date of the action, review such action, but the review shall not, unless specifically ordered by the Authority, operate as a stay of action. The Authority may

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1252

 92 STAT. 1198

PUBLIC LAW 9 5 - 4 5 4 ^ 0 C T. 13, 1978

affirm, modify, or reverse any action reviewed under this subsection. If the Authority does not undertake to grant review of the action under this subsection within 60 days after the later of— " (1) the date of the action; or "(2) the date of the filing of any application under this subsection for review of the action; the action shall become the action of the Authority at the end of such 60-day period. "(g) In order to carry out its functions under this chapter, the Authority may— Hearings. "(1) hold hearings; Administer oaths. "(2) administer oaths, take the testimony or deposition of any person under oath, and issue subpenas as provided in section 7132 .Ai-nttM, of this title; and "(3) may require an agency or a labor organization to cease and desist from violations of this chapter and require it to take any remedial action it considers appropriate to carry out the olicies of this chapter. ^) Except as provided in section 518 of title 28, relating to litigation before the Supreme Court, attorneys designated by the Authority may appear for the Authority and represent the Authority in any civil action brought in connection with any function carried out by the Authority pursuant to this title or as otherwise authorized by law. "(i) In the exercise of the functions of the Authority under this title, the Authority may request from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or policy directives issued by the Office of Personnel Management in connection with any matter before the Authority. 5 USC 7106. «§ 7106. Management rights "(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency— "(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and "(2) in accordance with applicable laws— "(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, „, or take other disciplinary action against such employees; "(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted; "(C) with respect to filling positions, to make selections for appointments from— "(i) among properly ranked and certified candidates for promotion; or " (ii) any other appropriate source; and "(D) to take whatever actions may be necessary to carry out the agency mission during emergencies. "(b) Nothing in this section shall preclude any agency and any labor organization from negotiating— "(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
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Page:United States Statutes at Large Volume 92 Part 1.djvu/1253

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1199

"(2) procedures which management officials of the agency will observe in exercising any authority under this section; or " (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. "SUBCHAPTER II—RIGHTS AND D U T I E S O F AGENCIES AND LABOR ORGANIZATIONS "§ 7111. Exclusive recognition of labor organizations " (a) An agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election. "(b) If a petition is filed with the Authority— "(1) by any person alleging— "(A) in the case of an appropriate unit for which there is no exclusive representative, that 30 percent of the employees in the appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative, or "(B) in the case of an appropriate unit for which there is an exclusive representative, that 30 percent of the employees in the unit allege that the exclusive representative is no longer the representative of the majority of the employees in the unit; or "(2) by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation; the Authority shall investigate the petition, and if it has reasonable cause to believe that a question of representation exists, it shall provide an opportunity for a hearing (for which a transcript shall be kept) after reasonable notice. If the Authority finds on the record of the hearing that a question of representation exists, the Authority shall supervise or conduct an election on the question by secret ballot and shall certify the results thereof. An election under this subsection shall not be conducted in any appropriate unit or in any subdivision thereof within which, in the preceding 12 calendar months, a valid election under this subsection has been held. "(c) A labor organization which— " (1) has been designated by at least 10 percent of the employees in the unit specified in any petition filed pursuant to subsection (b) of this section; " (2) has submitted a valid copy of a current or recently expired collective bargaining agreement for the unit; or "(3) has submitted other evidence that it is the exclusive representative of the employees involved; may intervene with respect to a petition filed pursuant to subsection (b) of this section and shall be placed on the ballot of any election under such subsection (b) with respect to the petition. "(d) The Authority shall determine who is eligible to vote in any election under this section and shall establish rules governinar any such election, which shall include rules allowing empoyees eligible to vote the opportunity to choose— "(1) from labor organizations on the ballot, that labor organination which the employees wish to have represent them; or

5 USC 7lii.

Petition.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1254

 92 STAT. 1200

PUBLIC LAW 95-454—OCT. 13, 1978

" (2) not to be represented by a labor organization. In any election in which no choice on the ballot receives a majority of the votes cast, a runoff election shall be conducted between the two choices receiving the highest number of votes. A labor organization which receives the majority of the votes cast in an election shall be certified by the Authority as the exclusive representative. "(e) A labor organization seeking exclusive recognition shall submit to the Authority and the agency involved a roster of its officers and representatives, a copy of its constitution and bylaws, and a statement JAlt?'<:} fi of its objectives. "(f) Exclusive recognition shall not be accorded to a labor organization— ... "(1) if the Authority determines that the labor organization is subject to corrupt influences or influences opposed to democratic •;,,t,«/| principles; "(2) in the case of a petition filed pursuant to subsection (b)(1)(A) of this section, if there is not credible evidence that at least 30 percent of the employees in the unit specified in the petition wish to be represented for the purpose of collective bargaining by the labor organization seeking exclusive recognition; " (3) if there is then in effect a lawful written collective bargaining agreement between the agency involved and an exclusive representative (other than the labor organization seeking exclusive recognition) covering any employees included in the unit specified in the petition, unless— " (A) the collective bargaining agreement has been in effect for more than 3 years, or " (B) the petition for exclusive recognition is filed not more sixit'sH than 105 days and not less than 60 days before the expiration date of the collective bargaining agreement; or "(4) if the Authority has, within the previous 12 calendar (.rj..-!-, months, conducted a secret ballot election for the unit described in any petition under this section and in such election a majority of the employees voting chose a labor organization for certification as the unit's exclusive representative. " (g) Nothing in this section shall be construed to prohibit the waiving of hearings by stipulation for the purpose of a consent election in conformity with regulations and rules or decisions of the Authority. 5 USC 7112. "§7112. Determination of appropriate units for labor organization representation "(a)(1) The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of, the agency involved. "(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes— Post, 1215. "(1) except as provided under section 7135(a)(2) of this title, any management official or supervisor; " (2) a confidential employee;

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