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Page:United States Statutes at Large Volume 92 Part 1.djvu/1255

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1201

"(3) an employee engaged in personnel work in other than a purely clerical capacity; " (4) an employee engaged in administering the provisions of this chapter; " (5) both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit; " (6) any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security; or " (7) any employee primarily engaged in investigation or audit functions relating to the work of individuals employed by an agency whose duties directly affect the internal security of the agency, but only if the functions are undertaken to ensure that the duties are discharged honestly and with integrity. "(c) Any employee who is engaged in administering any provision of law relating to labor-management relations may not be represented by a labor organization— " (1) which represents other individuals to whom such provision applies; or "(2) which is affiliated directly or indirectly with an organization which represents other individuals to whom such provision applies. "(d) Two or more units which are in an agency and for which a labor organization is the exclusive representative may, upon petition by the agency or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate. The Authority shall certify the labor organization as the exclusive representative of the new larger unit. "§ 7113. National consultation rights 5 USC 7113. "(a)(t) If, in connection with any agency, no labor organization has been accorded exclusive recognition on an agency basis, a labor organization which is the exclusive representative of a substantial number of the employees of the agency, as determined in accordance with criteria prescribed by the Authority, shall be granted national consultation rights by the agency. National consultation rights shall terminate when the labor organization no longer meets the criteria prescribed by the Authority. Any issue relating to any labor organization's eligibility for, or continuation of, national consultation rights shall be subject to determination by the Authority. "(b)(1) Any labor organization having national consultation rights in connection with any agency under subsection (a) of this section shall— "(A) be informed of any substantive change in conditions of employment proposed by the agency, and "(B) be permitted reasonable time to present its views and recommendations regarding the changes. "(2) If any views or recommendations are presented under paragraph (1) of this subsection to an agency by any labor organization— "(A) the agency shall consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and "(B) the agency shall provide the labor organization a written statement of the reasons for taking the final action. "(c) Nothing in this section shall be construed to limit the right of any agency or exclusive representative to engage in collective bargaining.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1256

 92 STAT. 1202 5 USC 7114.

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PUBLIC LAW 95-454—OCT. 13, 1978 "§7114. Representation rights and duties "(a)(1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership. " (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at— " (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or "(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if— " (i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and " (ii) the employee requests representation. " (3) Each agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection. "(4) Any agency and any exclusive representative in any appropriate unit in the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement. In addition, the agency and the exclusive representative may determine appropriate techniques, consistent with the provisions of section 7119 of this title, to assist in any negotiation. "(5) The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude an employee from— "(A) being represented by an attorney or other representative, other than the exclusive representative, of the employee's own choosing in any grievance or appeal action; or "(B) exercising grievance or appellate rights established by law, rule, or regulation; except in the case of grievance or appeal procedures negotiated under this chapter. "(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation— "(1) to approach the negotiations with a sincere resolve to reach a collective bargaining agreement; "(2) to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment; "(3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays; "(4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data— "(A) which is normally maintained by the agency in the ,.. regular course of business; " (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of sub\ jects within the scope of collective bargaining; and

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1257

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1203

"(C) which does not constitute guidance, advice, counsel, '' -'<•>< . !• < or training provided for management officials or supervisors, relating to collective bargaining; and "(5) if agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement. "(c)(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency. "(2) The head of the agency shall approve the agreement within 30 days from the date the agreement is executed if the agreement is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation (unless the agency has granted an exception to the provision). "(3) If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation. "(4) A local agreement subject to a national or other controlling agreement at a higher level shall be approved under the procedures of the controlling agreement or, if none, under regulations prescribed by ^ •; -• ^ the agency. "§ 7115. Allotments to representatives 5 USC 7115. "(a) If an agency has received from an employee in an appropriate unit a written assignment which authorizes the agency to deduct from the pay of the employee amounts for the payment of regular and periodic dues of the exclusive representative of the unit, the agency shall honor the assignment and make an appropriate allotment pursuant to the assignment. Any such allotment shall be made at no cost to the exclusive representative or the employee. Except as provided under subsection (b) of this section, any such assignment may not be revoked for a period of 1 year. "(b) An allotment under subsection (a) of this section for the deduction of dues with respect to any employee shall terminate when— "(1) the agreement between the agency and the exclusive representative involved ceases to be applicable to the employee; or "(2) the employee is suspended or expelled from membership in the exclusive representative. "(c)(1) Subject to paragraph (2) of this subsection, if a petition has been filed with the Authority by a labor organization alleging that 10 percent of the employees in an appropriate unit in an agency have membership in the labor organization, the Authority shall investigate the petition to determine its validity. Upon certification by the Authority of the validity of the petition, the agency shall have a duty to negotiate with the labor organization solely concerning the deduction of dues of the labor organization from the pay of the members of the labor organization who are employees in the unit and who make a voluntary allotment for such purpose. "(2)(A) The provisions of paragraph (1) of this subsection shall not apply in the case of any appropriate unit for which there is an exclusive representative. "(B) Any agreement under paragraph (1) of this subsection between a labor organization and an agency with respect to an appropriate unit shall be null and void upon the certification of an exclusive representative of the unit.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1258

 92 STAT. 1204 5 USC 7116.

PUBLIC LAW 95-454—OCT. 13, 1978

«§ 7116. Unfair labor practices "(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency— "(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; "(2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment; "(3) to sponsor, control, or otherwise assist any labor organization, other than to furnish, upon request, customary and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status; '' (4) to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter; "(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; "(6) to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter; "(7) to enforce any rule or regulation (other than a rule or Ante, p. 1114. regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if
 * I iT,)> J ]

the agreement was in effect before the date the rule or regulation was prescribed; or "(8) to otherwise fail or refuse to comply with any provision of this chapter. "(b) For the purpose of this chapter, it shall be an unfair labor practice for a labor organization— "(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; "(2) to cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under this chapter; "(3) to coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee; "(4) to discriminate against an employee with regard to the terms or conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital sta.tus, or handicapping condition; "(5) to refuse to consult or negotiate in good faith with an agency as required by this chapter; "(6) to fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter; " (7)(A) to call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency's operations, or "(B) to condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity; or "(8) to other\vise fail or refuse to comply with any provision of this chapter.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1259

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1205

Nothing in paragraph (7) of this subsection shall result in any informational picketing which does not interfere with an agency's operations being considered as an unfair labor practice, "(c) For the purpose of this chapter it shall be an unfair labor practice for an exclusive representative to deny membership to any employee in the appropriate unit represented by such exclusive representative except for failure— "(1) to meet reasonable occupational standards uniformly required for admission, or ' '^ " (2) to tender dues uniformly required as a condition of acquiring and retaining membership. This subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws to the extent consistent with the provisions of this chapter. "(d) Issues which can properly be raised under an appe^als procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121(e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, in the discretion of the ao-n-rieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures. "(e) The expression of any personal view, argument, opinion or the making of any statement which— "(1) publicizes the fact of a representational election and encourages employees to exercise their right to vote in such election, "(2) corrects the record with respect to any false or misleading statement made by any person, or "(3) informs employees of the Government's policy relating to labor-management relations and representation, shall not, if the expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions, (A) constitute an unfair labor practice under any provision of this chapter, or (B) constitute grounds for the setting aside of any election conducted under any provisions of this chapter. "§ 7117. Duty to bargain in good faith; compelling need; duty to 5 USC 7117. consult "(a)(1) Subject to paragraph (2) of this subsection, the duty to bar<rain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. "(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Goverment-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation. "(3) Paragraph (2) of the subsection applies to any rule or regulation issued by any agency or issued by any primary national subdivision of such agency, unless an exclusive representative represents an appropriate unit including not less than a maiority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1260

 92 STAT. 1206

Hearing.

Appeal.

Petition. •

PUBLIC LAW 95-454—OCT. 13, 1978

"(b)(1) In any case of collective bargaining in which an exclusive representative alleges that no compelling need exists for any rule or regulation referred to in subsection (a)(3) of this section which is then in effect and which governs any matter at issue in such collective bargaining, the Authority shall determine under paragraph (2) of this subsection, in accordance with regulations prescribed by the Authority, whether such a compelling need exists. "(2) For the purpose of this section, a compelling need shall be determined not to exist for any rule or regulation only if— "(A) the agency, or primary national subdivision, as the case may be, which issued the rule or regulation informs the Authority in writing that a compelling need for the rule or regulation does not exist; or "(B) the Authority determines that a compelling need for a rule or regulation does not exist. "(3) A hearing may be held, in the discretion of the Authority, before a determination is made under this subsection. If a hearing is held, it shall be expedited to the extent practicable and shall not include the General Counsel as a party. "(4) The agency, or primary national subdivision, as the case may be, which issued the rule or regulation shall be a necessary party at any hearing under this subsection. "(c)(1) Except in any case to which subsection (b) of this section applies, if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection. "(2) The exclusive representative may, on or before the 15th day after the date on which the agency first makes the allegation referred to in paragraph (1) of this subsection, institute an appeal under this subsection by— '; "(A) filing a petition with the Authority; and "(B) furnishing a copy of the petition to the head of the agency. "(3) On or before the 30th day after the date of the receipt by the head of the agency of the copy of the petition under paragraph (2)(B) of this subsection, the agency shall— "' ^ " ( ^) fil© with the Authority a statement— ' '' > "(i) withdrawing the allegation; or «>i,: "(ii) setting forth in full its reasons supporting the allegation; and "(B) furnish a copy of such statement to the exclusive representative. "(4) On or before the loth day after the date of the receipt by the exclusive representative of a copy of a statement under paragraph (3)(B) of this subsection, the exclusive representative shall file with the Authority its response to the statement. "(5) A hearing may be held, in the discretion of the Authority, before a determination is made under this subsection. If a hearing is held, it shall not include the General Counsel as a party. " (6) The Authority shall expedite proceedings under this subsection to the extent practicable and shall issue to the exclusive representative and to the agency a written decision on the allegation and specific reasons therefor at the earliest practicable date. "(d)(1) A labor organization which is the exclusive representative of a substantial number of employees, determined in accordance with criteria prescribed by the Authority, shall be granted consultation

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1261

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1207

rights by any agency with respect to any Government-wide rule or regulation issued by the agency effecting any substantive change in any SKilfisH condition of employment. Such consultation rights shall terminate when the labor organization no longer meets the criteria prescribed by the Authority. Any issue relating to a labor organization's eligibility for, or continuation of, such consultation rights shall be subject to determination by the Authority. "(2) A labor organization having consultation rights under paragraph (1) of this subsection shall— "(A) be informed of any substantive change in conditions of employment proposed by the agency, and "(B) shall be permitted reasonable time to present its views and recommendations regarding the changes. "(3) If any views or recommendations are presented under paragraph (2) of this subsection to an agency by any labor organization— "(A) the agency shall consider the views or recommendations before taking final action on any matter with respect to which the views or recommendations are presented; and "(B) the agency shall provide the labor organization a written statement of the reasons for taking the final action. 5 USC 7118. "(a)(1) If any agency or labor organization is charged by any person with having engaged in or engaging in an unfair labor practice, the General Counsel shall investigate the charge and may issue and cause to be served upon the agency or labor organization a complaint. In any case in which the General Counsel does not issue a complaint because the charge fails to state an unfair labor practice, the General Counsel shall provide the person making the charge a written statement of the reasons for not issuing a complaint. "(2) Any complaint under paragraph (1) of this subsection shall Complaint, contain a notice— "(A) of the charge; "(B) that a hearing will be held before the Authority (or any Hearing, member thereof or before an individual employed by the authority and designated for such purpose); and "(C) of the time and place fixed for the hearing. "(3) The labor organization or agency involved shall have the right to file an answer to the original and any amended complaint and to appear in person or otherwise and give testimony at the time and place fitted in the complaint for the hearing. "(4)(A) Except as provided in subparagraph (B) of this paragraph, no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority. "(B) If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to m subparagraph (A) of this paragraph by reason of— "(i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or
 * '§ 7118. Prevention of unfair labor practices

•--:•,:

"(ii) any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period, the General Counsel may issue a complaint based on the charge if the charge was filed during the 6-month period beginning on the day of the discovery by the person of the alleged unfair labor practice. "(5) The General Counsel may prescribe regulations providing for Regulations.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1262

 92 STAT. 1208

Hearing.

5 USC 551. Transcript.

Rules and regulations, interpretation.

5 USC 7119.

PUBLIC LAW 95-454—OCT. 13, 1978 informal methods by which the alleged unfair labor practice may be resolved prior to the issuance of a complaint. "(6) The Authority (or any member thereof or any individual employed by the Authority and designated for such purpose) shall conduct a hearing on the complaint not earlier than 5 days after the date on which the complaint is served. In the discretion of the individual or individuals conducting the hearing, any person involved may be allowed to intervene in the hearing and to present testimony. Any such hearing shall, to the extent practicable, be conducted in accordance with the provisions of subchapter II of chapter 6 of this title, except that the parties shall not be bound by rules of evidence, whether statutory, common law, or adopted by a court. A transcript shall be kept of the hearing. After such a hearing the Authority, in its discretion, may upon notice receive further evidence or hear argument. "(7) If the Authority (or any member thereof or any individual employed by the Authority and designated for such purpose) determines after any hearing on a complaint under paragraph (5) of this subsection that the preponderance of the evidence received demonstrates that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, then the individual or individuals conducting the hearing shall state in Avriting their findings of fact and shall issue and cause to be served on the agency or labor organization an order— "(A) to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged; "(B) requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect; "(C) requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; or "(D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter. If any such order requires reinstatement of an employee with backpay, backpay may be required of the agency (as provided in section 5596 of this title) or of the labor organization, as the case may be, which is found to have engaged in the unfair labor practice involved. "(8) If the individual or individuals conducting the hearing determine that the preponderance of the evidence received fails to demonstrate that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, the individual or individuals shall state in writing their findings of fact and shall issue an order dismissing the complaint. "(b) In connection with any matter before the Authority in any proceeding under this section, the Authority may request, in accordance with the provisions of section 7105(i) of this title, from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or other policy directives issued by the Office of Personnel Management. "§7119. Negotiation impasses; Federal Service Impasses Panel "(a) The Federal Mediation and Conciliation Service shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Service shall determine under what circumstances and in what manner it shall provide services and assistance.,-,,> „,<•,=,!i^r.r. -,•. «uri-.-.M-, ^-i',.i --.v>••,,>. ^--s:?;;^-

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1263

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1209

"(b) If voluntary arrangements, including the services of the Fed' • "•' eral Mediation and Conciliation Service or any other third-party mediation, fail to resolve a negotiation impasse— "(1) either party may request the Federal Service Impasses Panel to consider the matter, or "(2) the parties may agree to adopt a procedure for binding arbitration of the negotiation impasse, but only if the procedure is approved by the Panel. "(c)(1) The Federal Service Impasses Panel is an entity within the Authority, the function of which is to provide assistance in resolving negotiation impasses between agencies and exclusive representatives. "(2) The Panel shall be composed of a Chairman and at least six Membership, other members, who shall be appointed by the President, solely on the basis of fitness to perform the duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor-management relations. "(3) Of the original members of the Panel, 2 members shall be appointed for a term of 1 year, 2 members shall be appointed for a term of 3 years, and the Chairman and the remaining members shall be appointed for a term of 5 years. Thereafter each member shall be appointed for a term of 5 years, except that an individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced. Any member of the Panel may be removed by the President. "(4) The Panel may appoint an Executive Director and any other individuals it may from time to time find necessary for the proper performance of its duties. Each member of the Panel who is not an employee (as defined in section 2105 of this title) is entitled to pay at a rate equal to the daily equivalent of the maximum annual rate of basic pay then currently paid under the General Schedule for each day he is engaged in the performance of official business of the Panel, including travel time, and is entitled to travel expenses as provided under section 5703 of this title. "(5)(A) The Panel or its designee shall promptly investigate any Investigation, impasse presented to it under subsection (b) of this section. The Panel shall consider the impasse and and shall either— "(i) recommend to the parties procedures for the resolution of the impasse; or " (ii) assist the parties in resolving the impasse through whatever methods and procedures, including factfinding and recommendations, it may consider appropriate to accomplish the purpose of this section. <, -s. "(B) If the parties do not arrive at a settlement after assistance by the Panel under subparagraph (A) of this paragraph, the Panel may— "(i) hold hearings; "(ii) administer oaths, take the testimony or deposition of any • -• person under oath, and issue subpenas as provided in section 7132 of this title; and "(iii) take whatever action is necessary and not inconsistent with this chapter to resolve the impasse. "(C) Notice of any final action of the Panel under this section shall be promptly served upon the parties, and the action shall be binding on such parties during the term of the agreement, unless the parties ayree otherwise.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1264

 92 STAT. 1210 5 USC 7120.

PUBLIC LAW 95-454—OCT. 13, 1978

I «§ 7120. Standards of conduct for labor organizations "(a) An agency shall only accord recognition to a labor organization that is free from corrupt influences and influences opposed to basic democratic principles. Except as provided in subsection (b) of this section, an organization is not required to prove that it is free from such influences if it is subject to governing requirements adopted by the organization or by a national or international labor organization or federation of labor organizations with which it is affiliated, or in which it participates, containing explicit and detailed provisions to which it subscribes calling for— "(1) the maintenance of democratic procedures and practi-^es qiilai;; !!<;</ including provisions for periodic elections to be conducted subject to recognized safeguards and provisions defining and securing the right of individual members to participate in the affairs of the organization, to receive fair and equal treatment under the governing rules of the organization, and to receive fair process in disciplinary proceedings; "(2) the exclusion from office in the organization of persons affiliated with communist or other totalitarian movements and persons identified with corrupt influences; "(3) the prohibition of business or financial interests on the part of organization officers and agents which conflict with their duty to the organization and its members; and "(4) the maintenance of fiscal integrity in the conduct of the affairs of the organization, including provisions for accounting and financial controls and regular financial reports or summaries to be made available to members. "(b) Notwithstanding the fact that a labor organization has adopted or subscribed to standards of conduct as provided in subsection (a) of this section, the organization is required to furnish evidence of its freedom from corrupt influences or influences opposed to basic democratic principles if there is reasonable cause to believe that— ..,..:,c ' "(1) the organization has been suspended or expelled from, or is subject to other sanction, by a parent labor organization, or federation of organizations with which it had been affiliated, because it has demonstrated an unwillingness or inability to comply with governing requirements comparable in purpose to those required by subsection (a) of this section; or " (2) the organization is in fact subject to influences that would preclude recognition under this chapter. Filing of reports. "(c) A labor organization which has or seeks recognition as a representative of employees under this chapter shall file financial and other reports with the Assistant Secretary of Labor for Labor Manayement Relations, provide for bonding of officials and employees of the organization, and comply with trusteeship and election standards. Regulations. "(d) The Assistant Secretary shall prescribe such regulations as are necessary to carry out the purposes of this section. Such regulations shall conform generally to the principles applied to labor organizations in the private sector. Complaints of violations of this section shall be filed with the Assistant Secretary. In any matter arising under this section, the Assistant Secretary may require a labor organization to cease and desist from violations of this section and require it to take such actions as he considers appropriate to carry out the policies of this section. "(e) This chapter does not authorize participation in the management of a labor organization or acting as a representative of a labor organization by a management official, a supervisor, or a confidential

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1265

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1211

employee, except as specifically provided in this chapter, or by an employee if the participation or activity would result in a conflict or apparent conflict of interest or would otherwise be incompatible with law or with the official duties of the employee. "(f) In the case of any labor organization which by omission or Strike, commission has willfully and intentionally, with regard to any strike, work stoppage, or slowdown, violated section 7116(b)(7) of this title, the Authority shall, upon an appropriate finding by the Authority of •'*>•' < such violation— "(1) revoke the exclusive reco^ition status of the labor organization, which shall then immediately cease to be legally entitled and obligated to represent employees in the unit; or "(2) take any other appropriate disciplinary action. "SUBCHAPTER III—GRIEVANCES "§ 7121. Grievance procedures 5 USC 7121. "(a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d) and (e) of t^is section, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage. "(2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement. "(b) Any negotiated grievance procedure referred to in subsection (a) of this section shall— "(1) be fair and simple, " (2) provide for expeditious processing, and " (3) include procedures that— "(A) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances; "(B) assure such an employee the right to present a grievance on the employee's own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and "(C) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency. " (c) The preceding subsections of this section shall not apply with respect to any grievance concerning— "(1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities); 5 USC 7321. " (2) retirement, life insurance, or health insurance; "(3) a suspension or removal under section 7532 of this title; "(4) any examination, certification, or appointment; or "(5) the classification of any position which does not result in the reduction in grade or pay of an employee. "(d) An aggrieved employee affected by a prohibited personnel practice under section 2302(b) CI) of this title which also falls under Ante, p. 1114. the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option

39-194 O—80—pt. 1

80: QL3

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1266

 92 STAT. 1212

PUBLIC LAW 95-454—OCT. 13, 1978

under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the .•j:!: parties' negotiated procedure, whichever event occurs first. Selection of the negotiated procedure in no manner prejudices the right of an aggrieved employee to request the Merit Systems Protection Board to Ante, p. 1140. review the final decision pursuant to section 7702 of this title in the case of any personnel action that could have been appealed to the Board, or, where applicable, to request the Equal Employment Opportunity Commission to review a final decision in any other matter involving a complaint of discrimination of the type prohibited by any law administered by the Equal Employment Opportunity Commission. Ante, p. 1133, "(e)(1) Matters covered under sections 4303 and 7512 of this title 1136which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either Ante, p. 1138. under the appellate procedures of section 7701 of this title or under the negotiated grievance procedure, but not both. Similar matters which arise under other personnel systems applicable to employees covered by this chapter may, in the discretion of the aggrieved employee, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise a matter either under the applicable appellate procedures or under the negotiated grievance procedure at such time as the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing in accordance with the provisions of the parties' negotiated grievance procedure, whichever event occurs first. "(2) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, an arbitrator shall be governed by section 7701 (c)(1) of this title, as applicable. "(f) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in Ante, p. 1143. accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board. In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award may be obtained in the same manner and on the same basis as could l^e obtained of a final decision in such matters raised under applicable appellate procedures. .. <--, • 5 USC 7122. "§ 7122. Exceptions to arbitral awards " (a) Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title). If upon review the Authority finds that the award is deficient— P "(1) because it is contrary to any law, rule, or regulation; or - ^, ^ ' - ' "(2) on other grounds similar to those applied b}^ Federal courts £|j!.?l 1S, . V' in private sector labor-management relations;

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1267

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1213

the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations. "(b) If no exception to an arbitrator's award is filed under subsection (a) of this section during the 30-day period beginning on the date of such award, the award shall be final and binding. An agency shall take the actions required by an arbitrator's final award. The award may include the payment of backpay (as provided in section 5596 of this title). "§7123. Judicial review; enforcement 5 USC 7123. "(a) Any person aggrieved by any final order of the Authority other than an order under— "(1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or "(2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority's order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. "(b) The Authority may petition any appropriate United States Petition, court of appeals for the enforcement of any order of the Authority and for appropriate temporary relief or restraining order. ' "(c) Upon the filing of a petition under subsection (a) of this section for judicial review or under subsection (b) of this section for enforcement, the Authority shall file in the court the record in the proceedings, as provided in section 2112 of title 28. Upon the filing of the petition, the court shall cause notice thereof to be served to the parties involved, and thereupon shall have jurisdiction of the proceeding and of the question determined therein and may grant any temporary relief (including a temporary restraining order) it considers just and proper, and may make and enter a decree affirming and enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Authority, The filing of a petition under subsection (a) or (b) of this section shall not operate as a stay of the Authority's order unless the court specifically orders the stay. Review of the Authority's order shall be on the record in accordance with section 706 of this title. No objection that has not been urged 5 USC 706. before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances. The findings of the Authority with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any person applies to the court for leave to adduce additional evidence and shows to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to adduce the evidence in the hearing before the Authority, or its designee, the court may order the additional evidence to be taken before the Authority, or • its designee, and to be made a part of the record. The Authority may modify its findings as to the facts, or make new findings by reason of , additional evidence so taken and filed. The Authority shall file its modified or new findings, which, with respect to questions of fact, if supported by substantial evidence on the record considered as a whole.

..

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1268

 92 STAT. 1214

5 USC 7131.

'" 3-

5 USC 7132. 5 USC 3105.

PUBLIC LAW 95-454—OCT. 13, 1978 shall be conclusive. The Authority shall file its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the judgment and decree shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28. "(d) The Authority may, upon issuance of a complaint as provided in section 7118 of this title charging that any person has engaged in or is engaging in an unfair labor practice, petition any United States district court within any district in which the unfair labor practice in question is alleged to have occurred or in which such person resides or transacts business for appropriate temporary relief (including a restraining order). Upon the filing of the petition, the court shall cause notice thereof to be served upon the person, and thereupon shall have jurisdiction to grant any temporary relief (including a temporary restraining order) it considers just and proper. A court shall not grant any temporary relief under this section if it would interfere with the ability of the agency to carry out its essential functions or if the Authority fails to establish probable cause that an unfair labor practice is being committed. "SUBCHAPTER IV—ADMINISTRATIVE AND OTHER PROVISIONS «§ 7131. Official time "(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status. The number of employees for whom official time is authorized under this subsection shall not exceed the number of individuals designated as representing the agency for such purposes. "(b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a nonduty status. "(c) Except as provided in subsection (a) of this section, the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose during the time the employee otherwise would be in a duty status. "(d) Except as provided in the preceding subsections of this section— "(1) any employee representing an exclusive representative, or "(2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest. "§7132. Subpenas "(a) Any member of the Authority, the General Counsel, or the Panel, any administrative law judge appointed by the Authority under section 3105 of this title, and any employee of the Authority designated by the Authority may—

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1269

 PUBLIC LAW 95-454—OCT. 13, 1978 "(1) issue subpenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States; and "(2) administer oaths, take or order the taking of depositions, order responses to written interrogatories, examine witnesses, and receive evidence. No subpena shall be issued under this section which requires the disclosure of intramanagement guidance, advice, counsel, or training within an agency or between an agency and the Office of Personnel Management. "(b) In the case of contumacy or failure to obey a subpena issued under subsection (a)(1) of this section, the United States district court for the judicial district in which the person to whom the subpena is addressed resides or is served may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt thereof. "(c) Witnesses (whether appearing voluntarily or under subpena) shall be paid the same fee and mileage allowances which are paid subpenaed witnesses in the courts of the United States. "§ 7133L Compilation and publication of data "(a) The Authority shall maintain a file of its proceedings and copies of all available agreements and arbitration decisions, and shall publish the texts of its decisions and the actions taken by the Panel under section 7119 of this title. "(b) All files maintained under subsection (a) of this section shall be open to inspection and reproduction in accordance with the provisions of sections 552 and 552a of this title. "§7134. Regulations "The Authority, the General Counsel, the Federal Mediation and Conciliation Service, the Assistant Secretary of Labor for Labor Management Relations, and the Panel shall each prescribe rules and regulations to carry out the provisions of this chapter applicable to each of them, respectively. Provisions of subchapter II of chapter 5 of this title shall be applicable to the issuance, revision, or repeal of any such rule or regulation. "§ 7135. Continuation of existing laws, recognitions, agreements, and procedures " (a) Nothing contained in this chapter shall preclude— "(1) the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement < between an agency and an exclusive representative of its employ' ees, which is entered into before the effective date of this chapter; or l: "(2) the renewal, continuation, or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally rep^ resent management officials or supervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of this chapter. "(b) Policies, regulations, and procedures established under and decisions issued under Executive Orders 11491, 11616, 11636, 11787, and 11838, or under any other Executive order, as in effect on the effective date of this chapter, shall remain in full force and effect until revised or revoked by the President, or unless superseded by specific provisions

92 STAT. 1215

5 USC 7133.

, ^ 5 USC 552,552a. 5 USC 7134.

5 USC 551. 5 USC 7135.

.S''U; siis

5 USC 7301 note, 7701 note,

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1270

 92 STAT. 1216

PUBLIC LAW 95-454—OCT. 13, 1978 of this chapter or by regulations or decisions issued pursuant to this chapter.". BACKPAY I N CASE OF U N F A I R LABOR PRACTICES AND GRIEVANCES

jinv: JBU S

Ante, p. 1191. ^rete, p. 1138. 5 J,,..,; J, ,

.^. . i..', v J c 5 5 USC 5551, 5552.

Ante, p. 1192.

SEC. 702. Section 5596(b) of title 5, United States Code is amended to read as follows: "(b)(1) An employee of an agency who, on the basis of a timely appeal or an administrative determination (including a decision relating to an unfair labor practice or a grievance) is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee— "(A) is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect— "(i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee r normally would have earned or received during the period if ' •• the personnel action had not occurred, less any amounts earned by the employee through other employment during that period; and u • "(ii) reasonable attorney fees related to the personnel ' >; action which, with respect to any decision relating to an unfair labor practice or a grievance processed under a procedure negotiated in accordance with chapter 71 of this title, shall ' f •;be awarded in accordance with standards established under .,, section 7701(g) of this title; and "(B) for all purposes, is deemed to have performed service for the agency during that period, except that— " (i) annual leave restored under this paragraph which is in excess of the maximum leave accumulation permitted by law shall be credited to a separate leave account for the employee and shall be available for use by the employee within the time limits prescribed by regulations of the Office of Personnel '^'"' * • Management, and jju "(ii) annual leave credited under clause (i) of this subparagraph but unused and still available to the employee ,HIrtSsH';under regulations prescribed by the Office shall be included in the lump-sum payment under section 5551 or 5552(1) of this title but may not be retained to the credit of the employee under section 5552(2) of this title. "(2) This subsection does not apply to any reclassification action nor authorize the setting aside of an otherwise proper promotion by a selecting official from a group of properly ranked and certified candidates. "(3) For the purpose of this subsection, 'grievance' and 'collective bargaining agreement' have the meanings set forth in section 7103 of this title, 'unfair labor practice' means an unfair labor practice described in section 7116 of this title, and 'personnel action' includes the omission or failure to take an action or confer a benefit.". i..

• ' '"'"'•^ '^'' ' 5 USC 71517154, 7201"7204.

„.-

TECHNICAL AND CONFORMING AMENDMENTS

SEC. 703. (a) Subchapter II of chapter 71 of title 5, United States Code, is amended— (1) by redesignating sections 7151 (as amended by section 310 of this Act), 7152, 7153, and 7154 as sections 7201, 7202, 7203, and 7204, respectively;

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1271

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1217

(2) by striking out the subchapter heading and inserting in lieu thereof the following:

.

"CHAPTER 72—ANTIDISCRIMINATION; RIGHT TO PETITION CONGRESS "SUBCHAPTER 1—ANTIDISCRIMINATION IN EMPLOYMENT "Sec.

"7201. "7202. "7203. "7204.

Antidiscrimination policy; minority recruitment program. Marital status. Handicapping condition. Other proliibitions.

.;

' - -^^

t

,

"SUBCHAPTER II—EMPLOYEES' RIGHT TO PETITION CONGRESS "7211. Employees' right to petition Congress.";

and t; (3) by adding at the end thereof the following new subchapter: .

^

"SUBCHAPTER II—EMPLOYEES' RIGHT TO P E T I T I O N CONGRESS

5 USC 7211. "The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.". (b) The analysis for part III of title 5, United States Code, is amended by striking out— , - ' "Subpart F—Employee Relations "7L Policies and inserting in lieu thereof—
 * §7211. Employees' right to petition Congress

7101";

"Subpart F—Labor-Management and Employee Relations "71. Labor-Management Relations "72. Antidiscrimination; Right to Petition Congress

7101 7201".

(c)(1) Section 2105(c)(1) of title 5, United States Code, is amended by striking out "7152, 7153" and inserting in lieu thereof "7202, 7203". (2) Section 3302(2) of title 5, United States Code, is amended by ' " ' striking out "and 7154" and inserting in lieu thereof "and 7204". (3) Sections 4540(c), 7212 (a), and 9540(c) of title 10, United States ..fijif ^ Code, are each amended by striking out "7154 of title 5" and inserting in lieu thereof "7204 of title 5". (4) Section 410(b)(1) of title 39, United States Code, is amended by striking out "chapters 71 (employee policies)" and inserting in lieu thereof the following: "chapters 72 (antidiscrimination; right to petition Congress)". (5) Section 1002(g) of title 39, United States Code, is amended by '^* ' striking out "section 7102 of title 5" and inserting in lieu thereof "section 7211 of title 5". (d) Section 5315 of title 5, United States Code, is amended by add• ing at the end thereof the following clause: "(124) Chairman, Federal Labor Relations Authority.". (e) Section 5316 of such title is amended by adding at the end thereof 5 USC 5316. the following clause: "(145) Members, Federal Labor Relations Authority (2) and its General Counsel.".

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1272

 92 STAT. 1218

PUBLIC LAW 95-454—OCT. 13, 1978 MISCELLANEOUS PROVISIONS

5 USC 5343 note.

SEC. 704. (a) Those terms and conditions of employment and other employment benefits with respect to Government prevailing rate 5 USC 5343 note, employees to whom section 9(b) of Public Law 92-392 applies which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after the date of the enactment of this Act in accordance with the provisions of section 9(b) of Public Law 92-392 without regard to any provision Ante, p. 1191. of chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph. (b) The pay and pay practices relating to employ^ees referred to in paragraph (1) of this subsection shall be negotiated m accordance with prevailing rates and pay practices without regard to any provision of— (A) chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph; (B) subchapter IV of chapter 53 and subchapter V of chapter 5 USC 5341, 55 of title 5, United States Code; or 5541. (C) any rule, regulation, decision, or order relating to rates of pay or pay practices under subchapter IV of chapter 53 or subchapter V of chapter 55 of title 5, United States Code. TITLE VIII—GRADE AND P A Y RETENTION GRADE AND PAY RETENTION

5 USC 5301 ^^ •^^9-

SEC. 801. (a)(1) Chapter 53 of title 5, United States Code, relating to pay rates and systems, is amended by inserting after subchapter V thereof the following new subchapter:

"SUBCHAPTER VI—GRADE AND PAY RETENTION ' 5 USC 5361.

5 USC 5342. 5 USC 5102.

5 USC 5343. Ante, p. 1180. iff

1'^ I

«§536L Definitions "For the purpose of this subchapter— " (1) 'employee' means an employee to whom chapter 51 of this title applies, and a prevailing rate employee, as defined by section 5342(a)(2) of this title, whose employment is other than on a temporary or term basis; "(2) 'agency' has the meaning given it by section 5102 of this title; "(3) 'retained grade' means the grade used for determining benefits to which an employee to whom section 5362 of this title applies is entitled; "(4) 'rate of basic pay' means, in the case of a prevailing rate employee, the scheduled rate of pay determined under section 5343 of this title; "(5) 'covered pay schedule' means the General Schedule, any prevailing rate schedule established under subchapter IV of this chapter, or the merit pay system under chapter 54 of this title; "(6) 'position subject to this subchapter' means any position under a covered pay schedule; and "C^) 'reduction-in-force procedures' means procedures applied in carrying out any reduction in force due to a reorganization, due to lack of funds or curtailment of work, or due to any other factor.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1273

 PUBLIC LAW 95-454—OCT. 13, 1978 "(a) Any employee— "(1) who is placed as a result of reduction-in-force procedures from a position subject to this subchapter to another position which is subject to this subchapter and which is in a lower grade than the previous position, and "(2) who has served for 52 consecutive weeks or more in one or more positions subject to this subchapter at a grade or grades hig'her than that of the new position, is entitled, to the extent provided in subsection (c) of this section, to have the grade of the position held immediately before such placement be considered to be the retained grade of the employee in anv position he holds for the 2-year period beginning on the date of such placement. "(b)(1) Any employee who is in a position subject to this subchapter and whose position has been reduced in grade is entitled, to the extent provided in subsection (c) of this section, to have the grade of such position before reduction be treated as the retained grade of such employee for the 2-year period beginning on the date of the reduction in grade. ' (2) The provisions of paragraph (1) of this subsection shall not apply with respect to any reduction in the grade of a position which had not been classified at the higher grade for a continuous period of at least one year immediately before such reduction. "(c) For the 2-year period referred to in subsections (a) and (b) of this section, the retained grade of an employee under such subsection (a) or (b) shall be treated as the grade of the employee's position for all purposes (including pay and pay administration under this chapter and chapters 54 and 55 of this title, retirement and life insurance under chapters 83 and 87 of this title, and eligibility for training and promotion under this title) except— "(1) for purposes of subsection (a) of this section, "(2) for purposes of applying any reduction-in-force procedures, "(3) for purposes of determining whether the employee is covered by the merit pay system established under section 5402 of this title, or "(4) for such other purposes as the Office of Personnel Management may provide by regulation. "(d) The foregoing provisions of this section shall cease to apply to an employee who— "(1) has a break in service of one workday or more; " (2) is demoted (determined without regard to this section) for personal cause or at the employee's request; "(3) is placed in, or declines a reasonable offer of, a position the grade of which is equal to or higher than the retained grade; or "(4) elects in writing to have the benefits of this section terminate. "(a) Any employee— "(1) who ceases to be entitled to the benefits of section 5362 of this title by reason of the expiration of the 2-year period of coverage provided under such section; "(2) who is in a position subject to this subchapter and who is subject to a reduction or termination of a special rate of pay established under section 5303 of this title; or
 * § 5362. Grade retention following a change of positions or reclassification
 * § 5363. Pay retention

92 STAT. 1219 5 USC 5362.

' • " '• •

^ • ^^,

Ante, p. 1180. 5 USC 5501. 5 USC 8301, 8701.

Ante, p. 1181.

!.-.

5 USC 5363.

5 USC 5303.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1274

 92 STAT. 1220 i;-Hc,»dJ f; "

PUBLIC LAW 95-454—OCT. 13, 1978

"^3^ ^}jQ ig [j^ Q^ position subject to this subchapter and who (but for this section) would be subject to a reduction in pay under circumstances prescribed by the Office of Personnel Management by regulation to warrant the application of this section; is entitled to basic pay at a rate equal to (A) the employee's allowable former rate of basic pay, plus (B) 50 percent of the amount of each increase in the maximum rate of basic pay payable for the grade of the employee's position immediately after such reduction in pay if such allowable former rate exceeds such maximum rate for such grade. "(b) For the purpose of subsection (a) of this section, 'allowable former rate of basic pay' means the lower of— "(1) the rate of basic pay payable to the employee immediately before the reduction in pay; or "(2) 160 percent of the maximum rate of basic pay payable for the grade of the employee's position immediately after such reduction in pay. "(c) The preceding provisions of this section shall cease to apply to an employee who—• " (1) has a break in service of one workday or more; "(2) is entitled by operation of this subchapter or chapter 51, 5 USC 5101, 53, or 54 of this title to a rate of basic pay which is equal to or 5301. higher than, or declines a reasonable offer of a position the rate Ante, p. 1180. ^f basic pay for which is equal to or higher than, the rate to which the employee is entitled under this section; or "(3) is demoted for personal cause or at the employee's request. 5 USC 5364. "§ 5364. Remedial actions "Under regulations prescribed by the Office of Personnel Management, the Office may require any agency— ,jj ^ "(1) to report to the Office information with respect to vacan•.V • ' / " cies (including impending vacancies); u I ''I "(2) to take such steps as may be appropriate to assure ^^'!, employees receiving benefits under section 5362 or 5363 of this title have the opportunity to obtain necessary qualifications for the selection to positions which would minimize the need for the application of such sections; "(3) to establish a program under which employees receiving i..;, j^,^ benefits under section 5362 or 5363 of this title are given priority in the consideration for or placement in positions which are equal to their retained grade or pay; and "(4) to place certain employees, notwithstanding the fact their previous position was in a different agency, but only in circumstances in which the Office determines the exercise of such authority is necessary to carry out the purpose of this section. 5 USC 5365. «§ 5365. Regulations "(a) The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter. " (b) Under su(^h regulations, the Office may provide for the application of all or portions of the provisions of this subchapter— >dt:<; Jfeu. "(1) to any individual reduced to a grade of a covered pay schedule from a position not subject to this subchapter; " (2) to individuals to whom such provisions do not otherwise apply; and "(3) to situations the application to which is justified for purposes of carrying out the mission of the agency or agencies involved. . .,.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1275

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1221

"§ 5366. Appeals "(a)(1) In the case of the termination of any benefits available to an employee under this subchapter on the grounds such employee declined a reasonable offer of a position the grade or pay of which was equal to or greater than his retained grade or pay, such termination may be appealed to the OflSice of Personnel Management under procedures prescribed by the Office. "(2) Nothing in this subchapter shall be construed to affect the right of any employee to appeal— "(A) under section 5112(b) or 5346(c) of this title, or otherwise, any reclassification of a position; or "(B) under procedures prescribed by the Office of Personnel Management, any reduotion-in-force action. "(b) For purposes of any appeal procedures (other than those described in subsection (a) of this section) or any grievance procedure negotiated under the provisions of chapter 71 of this title— " (1) any action which is the basis of an individual's entitlement to benefits under this subchapter, and " (2) any termination of any such benefits under this subchapter, shall not be treated as appealable under such appeals procedures or grievable under such grievance procedure.". (2) Sections 5334(d), 5337, and 5345 of title 5, United States Code, are hereby repealed. (3)(A) Chapter 53 of title 5, United States Code, is amended— (i) by redesignating subchapter VI as subchapter VII, and (ii) by redesignating sections 5361 through 5365 as sections 5371 through 5375, respectively. (B)(i) The analysis of chapter 53 of title 5, United States Code, is amended by striking out the items relating to subchapter VI thereof and inserting in lieu thereof the following: "SUBCHAPTER VI—GRADE AND PAY RETENTION

"Sec.

Ante, p. 1192.

Repeal, 5 USC 5301 ^^ ^^9-

j t

"Sec.

"5361. Definitions. "5362. Grade retention following a change of positions or reclassification. "5363. Pay retention. "5364. Remedial actions. "5365. Regulations. "5366. Appeals. 1> «.. - . i"SUBCHAPTER VII—MISCELLANEOUS PROVISIONS

5 USC 5366.

,.

/

"5371. Scientific and professional positions. "5372. Administrative law judges. "5373. Limitation on payfixedby administrative action. ,, "5374. Miscellaneous positions in the executive branch. "5375. Police force of National Zoological Park.". (ii) The analysis of such chapter is further amended by striking out the items relating to sections 5337 and 5345, respectively. (iii) Sections 559 and 1305 of title 5, United States Code, are each amended by striking out "5362," each place it appears and inserting "5372," in lieu thereof. (C) Section 3104(b) of title 5, United States Code, as redesignated Ante, p. 1178. by this Act, is amended by striking out "section 5361" and inserting "section 5371" in lieu thereof. (D) Section 5102(c)(5) of title 5, United States Code, is amended by striking out "section 5365" and inserting "section 5375" in lieu thereof.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1276

 92 STAT. 1222

PUBLIC LAW 95-454—OCT. 13, 1978

(E) Sections 5107 and 8704(d)(1) of title 5, United States Code, are each amended by striking out "section 5337" and inserting in lieu 5 USC 5361. thereof "subchapter VI of chapter 53". (F) Section 5334(b) of title 5, United States Code, is amended by striking out "section 5337 of this title" each place it appears and inserting in lieu thereof "subchapter VI of this chapter". (G) Section 5334 of title 5, United States Code, is amended by redesignating subsections (e) and (f) as subsections (d) and (e), respectively. (H) Section 5349(a) of title 5, United States Code, is amended— (i) by striking out "section 5345, relating to retention of pay," and inserting in lieu thereof "subchapter VI of this chapter, relating to grade and pay retention,"; (ii) by striking out "section 5345 of this title" and inserting in lieu thereof "subchapter VI of this chapter"; and (iii) by striking out "paragraph (2) of section 5345(a)" and Ante, p. 1218. inserting in lieu thereof "section 5361(1)". (I) Sections 4540(c), 7212(a), and 9540(c) of title 10, United States Code, are each amended by inserting after "of title 5" the following: "and subchapter VI of chapter 53 of such title 5". (J) Section 1416(a) of the Act of August 1. 1968 (Public Law 90^48; 15 U.S.C. 1715(a)), and section 808(c) of the Act of April 11, 1968 (Public Law 90-284; 42 U.S.C. 3608(b)), are each amended by striking out "5362," and inserting in lieu thereof "5372,". 5 USC 5361 note. (4)(A) The amendments made by this subsection shall take effect on the first day of the first applicable pay period beginning on or after the 90th day after the date of the enactment of this Act. (B) An employee who was receiving pay under the provisions of section 5334(d), 5337, or 5345 of title 5, United States Code, on the day before the effective date prescribed in subparagraph (A) of this paragraph shall not have such pay reduced or terminated by reason of the amendments made by this subsection and, unless section 5362 of Ante, p. 1218. such title 5 (as amended by subsection (a)(1) of this section) applies, such an employee is entitled to continue to receive pay as authorized by those provisions (as in effect on such date). 5 USC 5362 note. (b)(1) Under regulations prescribed by the Office of Personnel Management, any employee— (A) whose grade was reduced on or after January 1, 1977, and before the effective date of the amendments made by subsection (a) of this section under circumstances which would have entitled the employee to coverage under the provisions of section 5362 of title 5, United States Code (as amended by subsection (a) of this section) if such amendments had been in effect at the time of the reduction; and (B) who has remained employed by the Federal Government from the date of the reduction in grade to the effective date of the amendments made by subsection (a) of this section without a break in service of one workday or more; shall be entitled— „. (i) to receive the additional pay and benefits which such employee would have been entitled to receive if the amendments made by subsection (a) of this section had been in effect during the period beginning on the effective date of such reduction in grade and ending on the day before the effective date of such amendments, and (ii) to have the amendments made by subsection (a) of this section apply to such employee as if the reduction in grade had occurred on the effective date of such amendments.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1277

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1223

(2) No employee covered by this subsection whose reduction in grade resulted in an increase in pay shall have such pay reduced by reason of the amendments made by subsection (a) of this section. (3)(A) For purposes of this subsection, the requirements under paragraph (1)(B) of this subsection, relating to continuous employment following reduction in grade, shall be considered to be met in the case of any employee— (i) who separated from service with a right to an immediate annuity under chapter 83 of title 5, United States Code, or under 5 USC 8301 et another retirement system for Federal employees; or seq. (ii) who died. (B) Amounts payable by reason of subparagraph (A) of this paragraph in the case of the death of an employee shall be paid in accordance with the provisions of subchapter VIII of chapter 55 of title 5, United States Code, relating to settlement of accounts in the case of deceased employees. - sa t, (4) The Office of Personnel Management shall have the same authority to prescribe regulations under this subsection as it has under section 5365 of title 5, United States Code, with respect to subchapter VI of chapter 53 of such title, as added by subsection (a) of this section. TITLE IX—MISCELLANEOUS STUDY ON DECENTRALIZATION OF GOVERNMENTAL

FUNCTIONS

SEC. 901. (a) As soon as practicable after the effective date of this Act, the Director of the Office of Management and Budget shall conduct a detailed study concerning the decentralization of Federal governmental functions. (b) The study to be conducted under subsection (a) of this section shall include— (1) a review of the existing geographical distribution of Federal governmental functions throughout the United States, including the extent to which such functions are concentrated in the District of Columbia; and (2) a review of the possibilities of distributing some of the functions of the various Federal agencies currently concentrated in the District of Columbia to field offices located at points throughout the United States. Interested parties, including heads of agencies, other Federal employees, and Federal employee organizations, shall be allowed to submit views, arguments, and data in connection with such study. (c) Upon completion of the study under subsection (a) of this section, and in any event not later than one year after the effective date of this Act, the Director of the Office of Management and Budget shall submit to the President and to the Congress a report on the results of such study together with his recommendations. Any recommendation which involves the amending of existing statutes shall include draft legislation.

Study. 31 USC 18 notes,

••'" ^'^'' ^"'-"

Report to OMB, President and Congress,

SAVINGS PROVISIONS

SEC. 902. (a) Except as otherwise provided in this Act, all executive 5 USC 1101 note:, orders, rules, and regulations affecting the Federal service shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed by the President, the Office of Personnel Management, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, or the Federal Labor Relations Authority with respect to matters within their respective jurisdictiona

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1278

 92 STAT. 1224

PUBLIC LAW 95-454—OCT. 13, 1978 (b) No provision of this Act shall affect any administrative proceedings pending at the time such provision takes effect. Orders shall be issued in such proceedings and appeals shall be taken therefrom as if this Act had not been enacted. (c) No suit, action, or other proceeding lawfully commenced by or against the Director of the Office of Personnel Management or the members of the Merit Systems Protection Board, or officers or employees thereof, in their official capacity or in relation to the discharge of their official duties, as in effect immediately before the effective date of this Act, shall abate by reason of the enactment of this Act. Determinations with respect to any such suit, action, or other proceeding shall be made as if this Act had not been enacted.

 * C i-B)6

AUTHORIZATION OF APPROPRIATIONS

5 USC 5509 note.

SEC. 903. There are authorized to be appropriated, out of any moneys in the Treasury not otherwise appropriated, such sums as may be necessary to carry out the provisions of this Act. POWERS OF PRESIDENT UNAFFECTED EXCEPT BY EXPRESS PROVISIONS

5 USC 1101 note.

SEC. 904. Except as otherwise expressly provided in this Act, no provision of this Act shall be construed to— (1) limit, curtail, abolish, or terminate any function of, or authority available to, the President which the President had »feat<* immediately before the effective date of this Act; or -'.tsn Si:y&} it (2) limit, curtail, or terminate the President's authority to delegate, redelegate, or terminate any delegation of functions. REORGANIZATION PLANS

5 USC 1101 note.

SEC. 905. Any provision in either Reorganization Plan Numbered 1 or 2 of 1978 inconsistent with any provision in this Act is hereby superseded. ,,,.^,;.; u.fj •..,..... T E C H N I C A L A N D CONFORMING

Ante, p. 1218. " "*" Ante, p. 1216. m>i* lOl r -^ll t

AMENDMENTS

SEC. 906. (a) Title 5, United States Code, is amended— (1) in section 5347, 8713, and 8911, by striking out "Chairman of the Civil Service Commission" and inserting in lieu thereof "Director of the Office of Personnel Management"; (2) in sections 1301, 1302, 1304, 1308, 2105, 2951, 3110, 3304a, 3308, 3312, 3314, 3318, 3324, 3325, 3344, 3351, 3363, 3373, 3502, 3504, 4102, 4106, 4113-4118, 5102, 5103, 5105, 5107, 5110-5115, 5303, 5304, 5333, 5334, 5335(b), 5336, 5338, 5343, 5346, 5347, 5351, 5352, 5371 (as redesignated in section 801(a)(3)(A) (ii) of this Act), 5372 (as redesignated in such section 801(a)(3)(A) (ii)), 5374 (as redesignated in such section 801(a)(3)(A) (ii)), 5504, 5533, 5545, 5548, 5723, 6101, 6304-6306, 6308, 6311, 6322, 6326, 7203 (as redesignated in section 703(a)(1) of this Act), 7204 (as redesignated in such section 703(a)(1)), 7312,8151,8331,8332, 8334, 8337, 8339-8343, 8345, 8346, 8347(a), 8348, 8501, 87018712,_ 8714, 8714a, 8716, 8901-8903, 8905, 8907-8910, and 8913, by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management"; (3) in sections 1302, 1304, 1308, 2951, 3304a, 3308, 3312, 3317b, 3318, 3324, 3351, 3363, 3504, 4106, 4113-4115, 4117, 4118, 5105, 5107, 5110-5112, 5114, 5333, 5343, 5346, 5545, 5548. 5723, 6304, 6405, 7312, 8331, 8332, 8337, 8339-8343, 8345, 8346, 8347(a)-(c)

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1279

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1225

and (e) - (h), 8348, 8702, 8704-8707, 8709-8712, 8714a, 8716,89018903, 8905, 8907, 8909, 8910, and 8913 (as such sections are amended in paragraph (2) of this subsection), by striking out ^ ^^ i • • > "Commission" each place it appears and inserting in lieu thereof "Office"; (4) in sections 1303, 8713 (as amended in paragraph (1) of this subsection), and 8911 (as amended in such paragraph), by striking out "Commission" and inserting in lieu thereof "Office"; (5) in section 3304(d), by striking out "a Civil Service Commission board of examiners" and inserting in lieu thereof "the Office of Personnel Management"; (6) in sections 1505-1508 and 3383, by striking out "Civil Service Commission" and "Commission" each place they appear and inserting in lieu thereof "Merit Systems Protection Board" and "Board", respectively; (7) in section 1504, by striking out "Civil Service Commission. On receipt of the report, or on receipt of other information which seems to the Commission to warrant an investigation, the Commission shall" and inserting in lieu thereof the following: "Special Counsel. On receipt of the report or on receipt of other information which seems to the Special Counsel to warrant an investigation, the Special Counsel shall investigate the report and such other information and present his findings and any charges based on such findings to the Merit Systems Protection Board, which shall". (8) in section 5335(c) — (A) by striking out "Commission" the first place it . ^. appears and inserting in lieu thereof "Office of Personnel Management"; (B) by striking out "Commission" the second place it appears and inserting in lieu thereof "Merit Systems Protection Board"'; (C) by striking out "Commission" the third place it appears and inserting in lieu thereof "Office"; and (D) by striking out "Commission" the fourth place it appears and inserting in lieu thereof "Board"; (9) in section 8347(d), by striking out "Commission" the first place it appears and inserting in lieu thereof "Merit Systems Protection Board" and by striking out "Commission" the second time it appears and inserting in lieu thereof "Board"; (10) in section 552(a)(4)(F) — (A) by_ striking out "Civil Service Commission" and "Commission" each place they appear and inserting in lieu thereof "Special Counsel"; and (B) by striking out "its" and inserting in lieu thereof "his"; (11) in section 1303— (A) by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management, Merit Systems Protection Board, and Special Counsel"; and (B) in paragraph (1), by striking out "Commission" and inserting in lieu thereof "Office of Personnel Management"; (12) in section 1305, by striking out "For the purpose of sections 3105, 3344, 4301(2)(E), 5362, and 7521 of this title and the Ante, p. 1131, provisions of section 5335(a)(B) of this title that relate to 1219, 1137. administrative law judges the Civil Service Commission may" and inserting in lieu thereof "For the purpose of section 3105, 3344, 4301(2)(D), and 5372 of this title and the provisions of

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1280

 92 STAT. 1226

Ante, p. 1137.

Repeal.

Ante, p. 1161.

PUBLIC LAW 95-454—OCT. 13, 1978 section 5335(a)(B) of this title that relate to administrative law judges, the Office of Personnel Management may, and for the purpose of section 7521 of this title, the Merit Systems Protection Board may"; (13) in section 1306, to read as follows: "The Director of the Office of Personnel Management and authorized representatives of the Director may administer oaths to witnesses in matters pending before the Office."; (14) in section 8344(a), by striking out "Commission" and insertm^ in lieu thereof "Office of Personnel Management"; (15) m section 8906, by striking out "Commission" each place it appears and inserting in lieu thereof "Office of Personnel Management" the first time it appears and "Office" the other times it appears; (16) in the section heading for section 2951 and in the item relating to section 2951 in the analysis for chapter 29, by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management"; and (17) in the section heading for section 5112 and in the item relating to section 5112 in the analysis for chapter 51, by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management". (b)(1) Section 5109(b) of title 5, United States Code, is hereby repealed. (2) Section 5109 of such title is further amended by redesignating subsection (c) as subsection (b). (c)(1) Subchapter VIII of chapter 33 of title 5, United States Code (as in effect immediately before the date of the enactment of this Act) is amended— (A) by striking out the subchapter heading and inserting in lieu thereof the following: "CHAPTER 34—PART-TIME CAREER EMPLOYMENT OPPORTUNITIES "Sec. "3401. "3402. "3403. "3404. "3405. "3406. "3407. "3408.

AfJi

Definitions. Establishment of part-time career employment programs. Limitations. Personnel ceilings. Nonapplicability. Regulations. Reports. , . Employee organization representation."; >

,-

and (B) by redesignating sections 3391 through 3398 as sections 3401 through 3408, respectively. (2)(A) Section 3401 of such title 5 (as redesignated by this section) is amended by striking out "subchapter" and inserting m lieu thereof "chapter". (B) Section 3402 of such title 5 (as redesignated by this section) is amended— (i) in subsection (a)(1)(B), by striking out "section 3393" and inserting in lieu thereof "section 3403"; (ii) in subsection (b)(1) — (I) by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management"; and (II) by striking out "subchapter" and inserting in lieu thereof "chapter"; and i' (iii) in subsection (b)(2), by striking out "Commission" and inserting in lieu thereof "Office".

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1281

 PUBLIC LAW 95-454—OCT. 13, 1978

92 STAT. 1227

(C) Sections 3405 and 3406 of such title 5 (as redesignated by this section) are amended by striking out "subchapter" each place it occurs and inserting in lieu thereof "chapter". (D) Section 3407(a) of such title 5 (as redesignated by this section) is amended— (i) by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management"; (ii) in paragraph (1), by striking out "section 3392" and inserting in lieu thereof "section 3402"; and (iii) in paragraph (2), by striking out "subchapter" and inserting in lieu thereof "chapter". (E) Section 3407(b) of such title 5 (as redesignated by this section) is amended— (i) by striking out "Commission" and inserting in lieu thereof "Office"; and (ii) by striking out "subchapter" each place it appears and inserting in lieu thereof "chapter". (F) Sections 8347(g), 8716(b)(3), 8913(b)(3), and 8906(b)(3) of such title 5 are each amended by striking out "section 3391(2)" and inserting in lieu thereof "section 3401(2)". (G) Section 8716(b)(3) of such title 5 is amended by striking out "section 3391(2)" and inserting in lieu thereof "section 3401(2)". (H) Section 8913(b)(3) of such title 5 is amended by striking out "section 3391(2)" and inserting in lieu thereof "section 3401(2)". (3) Section 5 of the Federal Employees Part-Time Career Employ- 5 USC 3407 note, ment Act of 1978 is amended by striking out "section 3397(a)" and Ante, p. 1059. inserting in lieu thereof "section 3407(a)". (4) The analysis for chapter 33 of title 5, United States Code, is amended by striking out the items (as in effect immediately before the date of the enactment of this Act) following the item relating to section 3385. (5) The chapter analysis for part III of title 5, United States Code ., is amended by inserting after the item relating to chapter 33 the following new item: "34. Part-time career employment opportunities 3401". ..

EFFECTIVE DATE

SEC. 907. Except as otherwise expressly provided in this Act, the 5 USC 1101 note, provisions of this Act shall take effect 90 days after the date of the enactment of this Act. Approved October 13, 1978. LEGISLATIVE HISTORY; HOUSE REPORTS: No. 95-1403 accompanying H.R. 11280 (Comm. on Post Office and Civil Service) and No. 95-1717 (Comm. of Conference). SENATE REPORTS:, No. 95-969 (Comm. on Governmental Affairs) and No. 95-1272 (Comm. of Conference). CONGRESSIONAL RECORD, Vol. 124 (1978): Aug. 11, H.R. 11280 considered in House. Aug. 24, considered and passed Senate. Sept. 7, 11, 13, H.R. 11280 considered and passed House; proceedings vacated and S. 2640, amended, passed in lieu. Oct. 4, Senate agreed to conference report. Oct. 5, 6, House agreed to conference report; receded from amendment. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 41: Oct. 13, Presidential statement.

39-194 O—80—pt. 1

81: QL3

, i i;>.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1282

 92 STAT. 1228

PUBLIC LAW 95-455—OCT. 13, 1978

Public Law 95-455 95th Congress An Act Oct. 13, 1978 [ITR. 12603]

Great Lakes Pilotage Act of 1960, amendment. Definitions.

Registration of United States pilots.

46 USC 21^b.

sSoR i u l l DB'LJ

46 USC 216e.

To amend the Great Lakes Pilotage Act of 1960 in order to relieve the restrictive qualification standards for United States registered pilots on the Great Lakes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Great Lakes Pilotage Act of 1960 (74 Stat. 259; 46 U.S.C. 216) is hereby amended as follows: (1) by deleting section 2(b) and inserting in lieu thereof the following: ^ "(b) 'Secretary' means the Secretary of Transportation."; (2) by deleting section 2(c) and inserting in lieu thereof the following: "(c) 'United States registered pilot' means a person, other than a member of the regular complement of a vessel, who holds a license authorizing navigation on the Great Lakes and suitably endorsed for pilotage on routes specified therein, issued under the authority of the provisions of title 52 of the Revised Statutes, and who is registered by the Secretary under the provisions of section 4 of this Act."; (3) by deleting in section 2(d) the words "a master's certificate or equivalent" and inserting in lieu thereof "an '; appropriate"; 1-,'ji (4) by deleting in section 2(e) the words "head of the Department in which the Coast Guard is operating under regulations issued by him", and inserting in lieu thereof the word "Secretary"; (5) by deleting section 4(a) and inserting in lieu thereof the following: "SEC. 4, (a) The registration of United States pilots shall be carried out by the Secretary under such regulations as to qualifications, terms, and conditions which will assure adequate and efficient pilotage service, provide for equitable participation of United States registered pilots with Canadian registered pilots in the pilotage of vessels to which this Act applies, and provide fair and reasonable opportunity for registration. Each applicant must, as a prerequisite,, be the holder of a license, as a master, mate, or pilot, issued under the authority of the provisions of title 52 of the Revised Statutes, and have acquired at least twenty-four months licensed service or comparable experience on vessels or integrated tugs and tows, of four thousand gross tons or over, operating on the (jreat Lakes or oceans. Those applicants qualifying with ocean service must have obtained at least six months of licensed service or comparable experience on the Great Lakes. The Secretary may require such experience and training, in addition to the minimum required by this subsection, as he considers necessary. In addition, each applicant shall agree that, if appointed as a United States registered pilot, he will be available for service when required and shall comply with this Act and all applicable regulations issued by the Secretary pursuant to this Act.". (6) by deleting in section 7(a) the words "for each violation ,, for which sum the vessel shall be liable and may be seized and proceeded against by way of libel in any district court of the Ai

.nV,|.i

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1283

 PUBLIC LAW 95-455—OCT. 13, 1978

92 STAT. 122S>

United States having jurisdiction thereof." in the first sentence, and inserting in lieu thereof "for each violation."; (7) by deleting in section 7(a) the last sentence which reads 46 USC 216e. "This subsection shall be enforced by the head of the Department in which the Coast Guard is operating."; (8) by deleting in section 7 (D) the last sentence which reads "This subsection shall be enforced by the head of the Department in which the Coast Guard is operating."; i, (9) by deleting in section 7(c) the last sentence which reads v. "The provisions of this subsection shall be enforced by the Secre|, tary, who may, upon application therefor, remit or mitigate the penalty provided for herein, upon such terms as he, in his dis,; cretion, shall think proper."; (10) by adding a new section 7(d) which reads: "(d) Any person who is found by the Secretary, after notice and an Violations. opportunity for a hearing, to have violated any part of the Act or a regulation issued hereunder shall be liable to the United States for the penalties as enumerated in this Act. The amount of such civil penalty Penalties. shall be assessed by the Secretary, or his designee, by written notice. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. The Secretary may compiomise, modify, or remit, with or without conditions, any civil penalty which . is subject to imposition or which has been imposed under this section. If any person fails to pay an assessment of a civil penalty after it has become final, the Secretary may refer the matter to the Attorney General of the United States, for collection in any appropriate district court of the United States."; (11) by adding a new section 7(e) which reads: " (e) Any vessel subject to the provisions of this Act, which is used in violation of this Act or any regulation issued hereunder, shall be liable in rem for any civil penalty assessed pursuant to this Act and may be proceeded against in the United States district court for any district in*which such vessel may be found."; (12) by deleting in section 8(a) the words 'Svith the concur- 46 USC 216f. rence of the head of the Department in which the Coast Guard is operating, or his designee,". Approved October 13, 1978.

LEGISLATIVE HISTORY: HOUSE REPORT No. 95-1526 (Comm. on Merchant Marine and Fisheries). CONGRESSIONAL RECORD, Vol. 124 (1978): Sept. 25, considered and passed House. Sept. 28, considered and passed Senate.

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Page:United States Statutes at Large Volume 92 Part 1.djvu/1284

 92 STAT. 1230

PUBLIC LAW 95-456—OCT. 13, 1978

Public Law 95-456 95th Congress An Act Oct. 13, 1978 [S. 2249]

Southwestern Power Administration, rate discrimination, prohibition. 16 USC 825s-3.

16 USC 8258-3 note.

To prohibit discrimination in rates charged by the Southwestern Administration.

Power

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That power and energy marketed by the Southwestern Power Administration pursuant to section 825s of title 16, United States Code (1970), shall be sold at uniform systemwide rates, without discrimination between customers to whom the Southwestern Power Administration delivers such power and energy by means of transmission lines or facilities constructed with appropriated funds, and customers to whom the Southwestern Power Administration delivers such power and energy by means of transmission lines or facilities, the use of which is acquired by lease, wheeling, or other contractual arrangements. SEC. 2. This Act shall not become effective until Contract No. 14-02-00001-1002, effective August 1, 1962, between the United States of America and Associated Electric Cooperative, Inc., Springfield, Missouri, has been amended in a manner mutually agreeable to the parties thereto. Approved October 13, 1978.

LEGISLATIVE HISTORY: HOUSE REPORT No. 95-1543 accompanying H.R. 13069 (Comm. on Interior and Insular Affairs). SENATE REPORT No. 95-792 (Comm. on Energy and Natural Resources). CONGRESSIONAL RECORD, Vol. 124 (1978): May 15, considered and passed Senate. Sept. 26, H.R. 13069 considered and passed House; passage vacated and S.2249, amended, passed in lieu. Sept. 29, Senate concurred in House amendments. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 14, No. 41: Oct. 13, Presidential statement.

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