PL 95-454 (S 2640)
OCTOBER 13, 1978
An Act to reform the civil service laws.
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled,
SHORT TITLE
SECTION 1. This Act may be cited as the "Civil Service Reform Act of 1978".
TABLE OF CONTENTS
SEC. 2. The table of contents is as follows:
TABLE OF CONTENTS
Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Findings and statement of purpose.
TITLE I -- MERIT SYSTEM PRINCIPLES
Sec. 101. Merit system principles; prohibited personnel practices.
TITLE Ii -- CIVIL SERVICE FUNCTIONS; PERFORMANCE APPRAISAL; ADVERSE ACTIONS
Sec. 201. Office of Personnel Management. Sec. 202. Merit Systems Protection Board and Special Counsel. Sec. 203. Performance appraisals. Sec. 204. Adverse actions. Sec. 205. Appeals. Sec. 206. Technical and conforming amendments.
TITLE III -- STAFFING
Sec. 301. Volunteer service. Sec. 302. Interpreting assistants for deaf employees. Sec. 303. Probationary period. Sec. 304. Training. Sec. 305. Travel, transportation, and subsistence. Sec. 306. Retirement. Sec. 307. Veterans and preference eligibles. Sec. 308. Dual pay for retired members of the uniformed services. Sec. 309. Civil service employment information. Sec. 310. Minority recruitment program. Sec. 311. Temporary employment limitation.
TITLE IV -- SENIOR EXECUTIVE SERVICE
Sec. 401. General provisions. Sec. 402. Authority for employment. Sec. 403. Examination, certification, and appointment. Sec. 404. Retention preference. Sec. 405. Performance rating. Sec. 406. Awarding of ranks. Sec. 407. Pay rates and systems. Sec. 408. Pay administration. Sec. 409. Travel, transportation, and subsistence. Sec. 410. Leave. Sec. 411. Disciplinary actions. Sec. 412. Retirement. Sec. 413. Conversion to the Senior Executive Service. Sec. 414. Limitations on executive positions. Sec. 415. Effective date; congressional review.
TITLE V -- MERIT PAY
Sec. 501. Pay for performance. Sec. 502. Incentive awards amendments. Sec. 503. Technical and conforming amendments. Sec. 504. Effective date.
TITLE VI -- RESEARCH, DEMONSTRATION, AND OTHER PROGRAMS
Sec. 601. Research programs and demonstration projects. Sec. 602. Intergovernmental Personnel Act amendments. Sec. 603. Amendments to the mobility program.
TITLE VII -- FEDERAL SERVICE LABOR- MANAGEMENT RELATIONS
Sec. 701. Federal service labor-management relations. Sec. 702. Backpay in case of unfair labor practices and grievances. Sec. 703. Technical and conforming amendments. Sec. 704. Miscellaneous provisions.
TITLE VIII -- GRADE AND PAY RETENTION
Sec. 801. Grade and pay retention.
TITLE IX -- MISCELLANEOUS
Sec. 901. Study on decentralization of governmental functions. Sec. 902. Savings provisions. Sec. 903. Authorization of appropriations. Sec. 904. Powers of President unaffected except by express provisions. Sec. 905. Reorganizations plans. Sec. 906. Technical and conforming amendments. Sec. 907. Effective date.
FINDINGS AND STATEMENT OF PURPOSE
Sec. 3. It is the policy of the United States that --,
(1) in order to provide the people of the United States with a competent, honest, and productive Federal work force reflective of the Nation's diversity, and to improve the quality of public service, Federal personnel management should be implemented consistent with merit system principles and free from prohibited personnel practices;
(2) the merit system principles which shall govern in the competitive service and in the executive branch of the Federal Government should be expressly stated to furnish guidance to Federal agencies in carrying out their responsibilities in administering the public business, and prohibited personnel practices should be statutorily defined to enable Federal employees to avoid conduct
which undermines the merit system principles and the integrity of the merit system;
(3) Federal employees should receive appropriate protection through increasing the authority and powers of the Merit Systems Protection Board in processing hearings and appeals affecting Federal employees;
(4) the authority and power of the Special Counsel should be increased so that the Special Counsel may investigate allegations involving prohibited personnel practices and reprisals against Federal employees for the lawful disclosure of certain information and may file complaints against agency officials and employees who engage in such conduct;
(5) the function of filling positions and other personnel functions in the competitive service and in the executive branch should be delegated in appropriate cases to the agencies to expedite processing appointments and other personnel actions, with the control and oversight of this delegation being maintained by the Office of Personnel Management to protect against prohibited personnel practices and the use of unsound management practices by the agencies;
(6) a Senior Executive Service should be established to provide the flexibility needed by agencies to recruit and retain the highly competent and qualified executives needed to provide more effective management of agencies and their functions, and the more expeditious administration of the public business;
(7) in appropriate instances, pay increases should be based on quality of performance rather than length of service;
(8) research programs and demonstration projects should be authorized to permit Federal agencies to experiment, subject to congressional oversight, with new and different personnel management concepts in controlled situations to achieve more efficient management of the Government's human resources and greater productivity in the delivery of service to the public;
(9) the training program of the Government should include retraining of employees for positions in other agencies to avoid separations during reductions in force and the loss to the Government of the knowledge and experience that these employees possess; and
(10) the right of Federal employees to organize, bargain collectively, and participate through labor organizations in decisions which affect them, with full regard for the public interest and the effective conduct of public business, should be specifically recognized in statute.
TITLE I -- MERIT SYSTEM PRINCIPLES
MERIT SYSTEM PRINCIPLES; PROHIBITED PERSONNEL PRACTICES
Sec. 101. (a) Title 5, United States Code, is amended by inserting after chapter 21 the following new chapter:
"CHAPTER 23 -- MERIT SYSTEM PRINCIPLES
" Sec. "2301. Merit system principles. "2302. Prohibited personnel practices. "2303. Prohibited personnel practices in the Federal Bureau of Investigation. "2304. Responsibility of the General Accounting Office. "2305. Coordination with certain other provisions of law.
" Section 2301. Merit system principles
"(a) This section shall apply to --,
"(1) an Executive agency;
"(2) the Administrative Office of the United States Courts; and
"(3) the Government Printing Office.
"(b) Federal personnel management should be implemented consistent with the following merit system principles:
"(1) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
"(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
"(3) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
"(4) All employees should maintain high standards of integrity, conduct, and concern for the public interest.
"(5) The Federal work force should be used efficiently and effectively.
"(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
"(7) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
"(8) Employees should be --,
"(A) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and
"(B) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
"(9) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences --,
"(A) a violation of any law, rule, or regulation, or
"(B) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
"(c) In administering the provisions of this chapter --,
"(1) with respect to any agency (as defined in section 2302(a) (2)(C) of this title), the President shall, pursuant to the authority otherwise available under this title, take any action, including the issuance of rules, regulations, or directives; and
"(2) with respect to any entity in the executive branch which is not such an agency or part of such an agency, the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;
which is consistent with the provisions of this title and which the President or the head, as the case may be, determines is necessary to ensure that personnel management is based on and embodies the merit system principles.
"Section 2302. Prohibited personnel practices
"(a)(1) For the purpose of this title, 'prohibited personnel practice' means any action described in subsection (b) of this section.
"(2) For the purpose of this section --,
"(A) 'personnel action' means --,
"(i) an appointment;
"(ii) a promotion;
"(iii) an action under chapter 75 of this title or other disciplinary or corrective action;
"(iv) a detail, transfer, or reassignment;
"(v) a reinstatement;
"(vi) a restoration;
"(vii) a reemployment;
"(viii) a performance evaluation under chapter 43 of this title;
"(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph; and
"(x) any other significant change in duties or responsibilities which is inconsistent with the employee's salary or grade level;
with respect to an employee in, or applicant for, a covered position in an agency;
"(B) 'covered position' means any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include --,
"(i) a position which is excepted from the competitive service because of its confidential, policy-determining, policy-making or policy-advocating character; or
"(ii) any position excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.
"(C) 'agency' means an Executive agency, the Administrative Office of the United States Courts, and the Government Printing Office, but does not include --,
"(i) a Government corporation;
"(ii) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or
"(iii) the General Accounting Office.
"(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority --,
"(1) discriminate for or against any employee or applicant for employment --,
"(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);
"(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);
"(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
"(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or
"(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation;
"(2) solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests or is under consideration for any personnel action unless such recommendation or statement is based on the personal knowledge or records of the person furnishing it and consists of --,
"(A) an evaluation of the work performance, ability, aptitude, or general qualifications of such individual; or
"(B) an evaluation of the character, loyalty, or suitability of such individual;
"(3) coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;
"(4) deceive or willfully obstruct any person with respect to such person's right to compete for employment;
"(5) influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;
"(6) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;
"(7) appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in section 3110(a)(3) of this title) of such employee if such position is in the agency in which such employee is serving as a public official (as defined in section 3110(a)(2) of this title) or over which such employee exercises jurisdiction or control as such an official;
"(8) take or fail to take a personnel action with respect to any employee or applicant for employment as a reprisal for --,
"(A) a disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences --,
"(i) a violation of any law, rule, or regulation, or
"(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public
health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or
"(B) a disclosure to the Special Counsel of the Merit Systems Protection Board, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences --,
"(i) a violation of any law, rule, or regulation, or
"(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
"(9) take or fail to take any personnel action against any employee or applicant for employment as a reprisal for the exercise of any appeal right granted by any law, rule, or regulation;
"(10) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account in determining suitability or fitness any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or of the United States; or
"(11) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.
This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.
"(c) The head of each agency shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management. Any individual to whom the head of an agency delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation.
"(d) This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to any employee or applicant for employment in the civil service under --,
"(1) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), prohibiting discrimination on the basis of race, color, religion, sex, or national origin;
"(2) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age;
"(3) under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)), prohibiting discrimination on the basis of sex;
"(4) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting discrimination on the basis of handicapping condition; or
"(5) the provisions of any law, rule, or regulation prohibiting discrimination on the basis of marital status or political affiliation.
"2303.
Prohibited personnel practices in the Federal Bureau of Investigation
"(a) Any employee of the Federal Bureau of Investigation who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority, take or fail to take a personnel action with respect to any employee of the Bureau as a reprisal for a disclosure of information by the employee to the Attorney General (or an employee designated by the Attorney General for such purpose) which the employee or applicant reasonably believes evidences --,
"(1) a violation of any law, rule, or regulation, or
"(2) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
For the purpose of this subsection, 'personnel action' means any action described in clauses (i) through (x) of section 2302(a) (2) (A) of this title with respect to an employee in, or applicant for, a position in the Bureau (other than a position of a confidential, policy-determining, policymaking, or policy-advocating character).
"(b) The Attorney General shall prescribe regulations to ensure that such a personnel action shall not be taken against an employee of the Bureau as a reprisal for any disclosure of information described in subsection (a) of this section.
"(c) The President shall provide for the enforcement of this section in a manner consistent with the provisions of section 1206 of this title.
"Section 2304.
Responsibility of the General Accounting Office
"(a) If requested by either House of the Congress (or any committee thereof), or if considered necessary by the Comptroller General, the General Accounting Office shall conduct audits and reviews to assure compliance with the laws, rules, and regulations governing employment in the executive branch and in the competitive service and to assess the effectiveness and soundness of Federal personnel management.
"(b) the General Accounting Office shall prepare and submit an annual report to the President and the Congress on the activities of the Merit Systems Protection Board and the Office of Personnel Management. The report shall include a descripteion of --,
"(1) significant actions taken by the Board to carry out its functions under this title; and
"(2) significant actions of the Office of Personnel Management, including an analysis of whether or not the actions of the Office are in accord with merit system principles and free from prohibited personnel practices.
" Section 2305.
Coordination with certain other provisions of law
" No provision of this chapter, or action taken under this chapter, shall be construed to impair the authorties and responsibilities set forth in section 102 of the National Security Act of 1947 (61 Stat, 495; 50 U.S.C. 403), the Central Intelligence Agency Act of 1949 (63 Stat. 208; 50 U.S.C. 403a and following), the Act entitled ' An Act to provide certain administrative authorities for the National Security Agency, and for other purposes', approved May 29, 1959 (73 Stat. 63; 50 U.S.C. 402 note), and the Act entitled ' An Act to amend the Internal Security Act of 1950', approved March 26, 1964 (78 Stat. 168; 50 U.S. C. 831-835).".
(b) (1) The table of chapters for part III of title 5, United States Code, is amended by adding after the item relating to chapter 21 the following new item:
"23. Merit system principles-----------------------2301".
(2) Section 7153 of title 5, United States Code, is amended --,
(A) by striking out "Physical handicap" in the catchline and inserting in lieu thereof "Handicapping condition"; and
(B) by striking out "physical handicap" each place it appears in the text and inserting in lieu thereof "handicapping condition".
TITLE II -- CIVIL SERVICE FUNCTIONS; PERFORMANCE APPRAISAL; ADVERSE ACTIONS
OFFICE OF PERSONNEL MANAGEMENT
Sec. 201. (a) Chapter 11 of title 5, United States Code, is amended to read as follows:
"CHAPTER 11 -- OFFICE OF PERSONNEL MANAGEMENT
" Sec. "1101. Office of Personnel Management. "1102. Director; Deputy Director; Associate Directors. "1103. Functions of the Director. "1104. Delegation of authority for personnel management. "1105. Administrative procedure.
" Section 1101.
Office of Personnel Management
" The Office of Personnel Management is an independent establishment in the executive branch. The Office shall have an official seal, which shall be judicially noticed, and shall have its principal office in the District of Columbia, and may have field offices in other appropriate locations.
" Section 1102.
Director; Deputy Director; Associate Directors
"(a) There is at the head of the Office of Personnel Management a Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The term of office of any individual appointed as Director shall be 4 years.
"(b) There is in the Office a Deputy Director of the Office of Personnel Management appointed by the President, by and with the advice and consent of the Senate. The Deputy Director shall perform such functions as the Director may from time to time prescribe and shall act as Director during the absence or disability of the Director or when the office of Director is vacant.
"(c) No individual shall, while serving as Director or Deputy Director, serve in any other office or position in the Government of the United States except as otherwise provided by law or at the direction of the President. The Director and Deputy Director shall not recommend any individual for appointment to any position (other than Deputy Director of the Office) which requires the advice and consent of the Senate.
"(d) There may be within the Office of Personnel Management not more than 5 Associate Directors, as determined from time to time by the Director. Each Associate Director shall be appointed by the Director.
" Section 1103.
Functions of the Director
"(a) The following functions are vested in the Director of the Office of Personnel Management, and shall be performed by the Director, or subject to section 1104 of this title, by such employees of the Office as the Director designates:
"(1) securing accuracy, uniformity, and justice in the functions of the Office;
"(2) appointing individuals to be employed by the Office;
"(3) directing and supervising employees of the Office, distributing business among employees and organizational units of the Office, and directing the internal management of the Office;
"(4) directing the preparation of requests for appropriations for the Office and the use and expenditure of funds by the Office;
"(5) executing, administering, and enforcing --,
"(A) the civil service rules and regulations of the President and the Office and the laws governing the civil service; and
"(B) the other activities of the Office including retirement and classification activities; except with respect to functions for which the Merit Systems Protection Board or the Special Counsel is primarily responsible;
"(6) reviewing the operations under chapter 87 of this title;
"(7) aiding the President, as the President may request, in preparing such civil service rules as the President prescribes, and otherwise advising the President on actions which may be taken to promote an efficient civil service and a systematic application of the merit system principles, including recommending policies relating to the selection, promotion, transfer, performance, pay,
conditions of service, tenure, and separation of employees; and
"(8) conducting, or otherwise providing for the conduct of, studies and research under chapter 47 of this title into methods of assuring improvements in personnel management.
"(b) (1) The Director shall publish in the Federal Register general notice of any rule or regulation which is proposed by the Office and the application of which does not apply solely to the Office or its employees. Any such notice shall include the matter required under section 553(b) (1), (2), and (3) of this title.
"(2) The Director shall take steps to ensure that --,
"(A) any proposed rule or regulation to which paragraph (1) of this subsection applies is posted in offices of Federal agencies maintaining copies of the Federal personnel regulations; and
"(B) to the extent the Director determines appropriate and practical, exclusive representatives of employees affected by such proposed rule or regulation and interested members of the public
are notified of such proposed rule or regulation.
"(3) Paragraphs (1) and (2) of this subsection shall not apply to any proposed rule or regulation which is temporary in nature and which is necessary to be implemented expeditiously as a result of an emergency.
" Section 1104.
Delegation of authority for personnel management
"(a) Subject to subsection (b) (3) of this section --,
"(1) the President may delegate, in whole or in part, authority for personnel management functions, including authority for competitive examinations, to the Director of the Office of Personnel Management; and
"(2) the Director may delegate, in whole or in part, any function vested in or delegated to the Director, including authority for competitive examinations (except competitive examinations for administrative law judges appointed under section 3105 of this title), to the heads of agencies in the executive branch and other agencies employing persons in the competitive service;
except that the Director may not delegate authority for competitive examinations with respect to positions that have requirements which are common to agencies in the Federal Government, other than in exceptional cases in which the interests of economy and efficiency require such delegation and in which such delegation will not weaken the application of the merit system principles.
"(b) (1) The Office shall establish standards which shall apply to the activities of the Office or any other agency under authority delegated under subsection (a) of this section.
"(2) The Office shall establish and maintain an oversight program to ensure that activities under any authority delegated under subsection (a) of this section are in accordance with the merit system principles and the standards established under paragraph (1) of this subsection.
"(3) Nothing in subsection (a) of this section shall be construed as affecting the responsibility of the Director to prescribe regulations and to ensure compliance with the civil service laws, rules, and regulations.
"(c) If the Office makes a written finding, on the basis of information obtained under the program established under subsection (b)(2) of this section or otherwise, that any action taken by an agency pursuant to authority delegated under subsection (a)(2) of this section is contrary to any law, rule, or regulation, or is contrary to any standard established under subsection (b)(1) of this section, the agency involved shall take any corrective action the Office may require.
" Section 1105.
Administrative procedure
" Subject to section 1103(b) of this title, in the exercise of the functions assigned under this chapter, the Director shall be subject to subsections (b), (c), and (d) of section 553 of this title, notwithstanding subsection (a) of such section 553.".
(b)(1) Section 5313 of title 5, United States Code, is amended by inserting at the end thereof the following new paragraph:
"(24) Director of the Office of Personnel Management.".
(2) Section 5314 of such title is amended by inserting at the end thereof the following new paragraph:
"(68) Deputy Director of the Office of Personnel Management.".
(3) Section 5316 of such title is amended by inserting after paragraph (121) the following:
"(122) Associate Directors of the Office of Personnel Management (5).".
(c)(1) The heading of part II of title 5, United States Code is amended by striking out "THE UNITED STATES CIVIL SERVICE COMMISSION" and inserting in lieu thereof "CIVIL SERVICE FUNCTIONS AND RESPONSIBILITIES".
(2) The item relating to chapter 11 in the table of chapters for part II of such title is amended by striking out "Organization" and inserting in lieu thereof "Office of Personnel Management".
MERIT SYSTEMS PROTECTION BOARD AND SPECIAL COUNSEL
Sec. 202. (a) Title 5, United States Code, is amended by inserting after chapter 11 the following new chapter:
"CHAPTER 12 -- MERIT SYSTEMS PROTECTION BOARD AND SPECIAL COUNSEL
" Sec. "1201. Appoinment of members of the Merit Systems Protection Board. "1202. Term of office; filling vacancies; removal. "1203. Chairman; Vice Chairman. "1204. Special Counsel; appointment and removal. "1205. Powers and functions of the Merit Systems Protection Board and Special Counsel. "1206. Authority and responsibilities of the Special Counsel. "1207. Hearings and decisions on complaints filed by the Special Counsel. "1208. Stays of certain personnel actions. "1209. Information.
" Section 1201. Appointment of members of the Merit Systems Protection Board
" The Merit Systems Protection Board is composed of 3 members appointed by the President, by and with the advice and consent of the Senate, not more than 2 of whom may be adherents of the same political party. The Chairman and members of the Board shall be individuals who, by demonstrated ability, background, training, or experience are especially qualified to carry out the functions of the Board. No member of the Board may hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President. The Board shall have an official seal which shall be judicially noticed. The Board shall have its principal office in the District of Columbia and may have field offices in other appropriate locations.
" Section 1202. Term of office, filling vacancies; removal
"(a) The term of office of each member of the Merit Systems Protection Board is 7 years.
"(b) A member appointed to fill a vacancy occurring before the end of a term of office of his predecessor serves for the remainder of that term. Any appointment to fill a vacancy is subject to the requirements of section 1201 of this title.
"(c) Any member appointed for a 7-year term may not be reappointed to any following term but may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that such member may not continue to serve for more than one year after the date on which the term of the member would otherwise expire under this section.
"(d) Any member may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.
" Section 1203. Chairman; Vice Chairman
"(a) The President shall from time to time, appoint, by and with the advice and consent of the Senate, one of the members of the Merit Systems Protection Board as the Chairman of the Board. The Chairman is the chief executive and administrative officer of the Board.
"(b) The President shall from time to time designate one of the members of the Board as Vice Chairman of the Board. During the absence or disability of the Chairman, or when the office of Chairman is vacant, the Vice Chairman shall perform the functions vested in the Chairman.
"(c) During the absence or disability of both the Chairman and Vice Chairman, or when the offices of Chairman and Vice Chairman are vacant, the remaining Board member shall perform the functions vested in the Chairman.
" Section 1204. Special Counsel; appointed and removal
" The Special Counsel of the Merit Systems Protection Board shall be appointed by the President from attorneys, by and with the advice and consent of the Senate, for a term of 5 years. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of his predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.
" Section 1205. Powers and functions of the Merit Systems Protection Board and Special Counsel
"(a) The Merit Systems Protection Board shall --,
"(1) hear, adjudicate, or provide for the hearing or adjudication, of all matters within the jurisdiction of the Board under this title, section 2023 of title 38, or any other law, rule, or regulation, and, subject to otherwise applicable provisions of law, take final action on any such matter;
"(2) order any Federal agency or employee to comply with any order or decision issued by the Board under the authority granted under paragraph (1) of this subsection and enforce compliance with any such order;
"(3) conduct, from time to time, special studies relating to the civil service and to other merit systems in the executive branch, and report to the President and to the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected; and
"(4) review, as provided in subsection (e) of this section, rules and regulations of the Office of Personnel Management.
"(b)(1) Any member of the Merit Systems Protection Board, the Special Counsel, any administrative law judge appointed by the Board under section 3105 of this title, and any employee of the Board designated by the Board may administer oaths, examine witnesses, take depositions, and recieve evidence.
"(2) Any member of the Board, the Special Counsel, and any administrative law judge appointed by the Board under section 3105 of this title may --,
"(A) issue subpenas requiring the attendance and testimony of witnesses and the production of documentary or other evidence from any place in the United States or any territory or possession thereof, the Commonwealth of Puerto Rico, or the District of Columbia; and
"(B) order the taking of depositions and order responses to written interrogatories.
"(3) 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.
"(c) In the case of contumacy or failure to obey a subpena issued under subsection (b)(2) 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.
"(d)(1) In any proceeding under subsection (a)(1) of this section, any member of the Board may request from the Director of the Office of Personnel Management an advisory opinion concerning the interpretation of any rule, regulation, or other policy directive promulgated by the Office of Personnel Management.
"(2) In enforcing compliance with any order under subsection (a) (2) of this section, the Board may order that any employee charged with complying with such order, other than an employee appointed by the President by and with the advice and consent of the Senate, shall not be entitled to receive payment for service as an employee during any period that the order has not been complied with. The Board shall certify to the Comptroller General of the United States that such an order has been issued and no payment shall be made out of the Treasury of the United States for any service specified in such order.
"(3) In carrying out any study under subsection (a)(3) of this section, the Board shall make such inquiries as may be necessary and, unless otherwise prohibited by law, shall have access to personnel records or information collected by the Office and may require additional reports from other agencies as needed.
"(e)(1) At any time after the effective date of any rule or regulation issued by the Director in carrying out functions under section 1103 of this title, the Board shall review any provision of such rule or regulation --,
"(A) on its own motion;
"(B) on the granting by the Board, in its sole discretion, of any petition for such review filed with the Board by any interested person, after consideration of the petition by the Board; or
"(C) on the filing of a written complaint by the Special Counsel requesting such review.
"(2) In reviewing any provision of any rule or regulation pursuant to this subsection the Board shall declare such provision --,
"(A) invalid on its face, if the Board determines that such provision would, if implemented by any agency, on its face, require any employee to violate section 2302(b) of this title; or
"(B) invalidly implemented by any agency, if the Board determines that such provision, as it has been implemented by the agency through any personnel action taken by the agency or through any policy adopted by the agency in conformity with such provision, has required any employee to violate section 2302 (b) of this title.
"(3)(A) The Director of the Office of Personnel Management, and the head of any agency implementing any provision of any rule or regulation under review pursuant to this subsection, shall have the right to participate in such review.
"(B) Any review conducted by the Board pursuant to this subsection shall be limited to determining --,
"(i) the validity on its face of the provision under review; and
"(ii) whether the provision under review has been validly implemented.
"(C) The Board shall require any agency --,
"(i) to cease compliance with any provisions of any rule or regulation which the Board declares under this subsection to be invalid on its face; and
"(ii) to correct any invalid implementation by the agency of any provision of any rule or regulation which the Board declares under this subsection to have been invalidly implemented by the agency.
"(f) The Board may delegate the performance of any of its administrative functions under this title to any employee of the Board.
"(g) The Board shall have the authority to prescribe such regulations as may be necessary for the performance of its functions. The Board shall not issue advisory opinions. All regulations of the Board shall be published in the Federal Register. "(h) Except as provided in section 518 of title 28, relating to litigation
before the Supreme Court, attorneys designated by the Chairman of the Board may appear for the Board, and represent the Board, in any civil action brought in connection with any function carried out by the Board pursuant to this title or as otherwise authorized by law.
"(i) The Chairman of the Board may appoint such personnel as may be necessary to perform the functions of the Board. Any appointment made under this subsection shall comply with the provisions of this title, except that such appointment shall not be subject to the approval or supervision of the Office of Personnel Management or the Executive Office of the President (other than approval required under section 3324 or subchapter VIII of chapter 33 of this title).
"(j) The Board shall prepare and submit to the President, and, at the same time, to the appropriate committees of Congress, an annual budget of the expenses and other items relating to the Board which shall, as revised, be included as a separate item in the budget required to be transmitted to the Congress under section 201 of the Budget and Accounting Act, 1921 (31 U.S.C. 11).
"(k) The Board shall submit to the President, and, at the same time, to each House of the Congress, any legislative recommendations of the Board relating to any of its functions under this title.
" Section 1206. Authority and responsibilities of the Special Counsel
"(a)(1) The Special Counsel shall receive any allegation of a prohibited personnel practice and shall investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken.
"(2) If the Special Counsel terminates any investigation under paragraph (1) of this subsection, the Special Counsel shall prepare and transmit to any person on whose allegation the investigation was initiated a written statement notifying the person of the termination of the investigation and the reasons therefor.
"(3) In addition to authority granted under paragraph (1) of this subsection, the Special Counsel may, in the absence of an allegation, conduct an investigation for the purpose of determining whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken.
"(b)(1) In any case involving --,
"(A) any disclosure of information by an employee or applicant for employment which the employee or applicant reasonably believes evidences --,
"(i) a violation of any law, rule, or regulation; or
"(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; if the disclosure is not specifically prohibited by law and if the information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or
"(B) a disclosure by an employee or applicant for employment to the Special Counsel of the Merit Systems Protection Board, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures of information which the employee or applicant reasonably believes evidences --,
"(i) a violation of any law, rule, or regulation; or
"(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
the identity of the employee or applicant may not be disclosed without the consent of the employee or applicant during any investigation under subsection (a) of this section or under paragraph (3) of this subsection, unless the Special Counsel determines that the disclosure of the identity of the employee or applicant is necessary in order to carry out the functions of the Special Counsel.
"(2) Whenever the Special Counsel receives information of the type described in paragraph (1) of this subsection, the Special Counsel shall promptly transmit such information to the appropriate agency head.
"(3)(A) In the case of information received by the Special Counsel under paragraph (1) of this section, if, after such review as the Special Counsel determines practicable (but not later than 15 days after the receipt of the information), the Special Counsel determines that there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation, or mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to the public health or safety, the Special Counsel may, to the extent provided in subparagraph (B) of this paragraph, require the head of the agency to --,
"(i) conduct an investigation of the information and any related matters transmitted by the Special Counsel to the head of the agency; and
"(ii) submit a written report setting forth the findings of the head of the agency within 60 days after the date on which the information is transmitted to the head of the agency or within any longer period of time agreed to in writing by the Special Counsel.
"(B) The Special Counsel may require an agency head to conduct an investigation and submit a written report under subparagraph (A) of this paragraph only if the information was transmitted to the Special Counsel by- -,
"(i) any employee or former employee or applicant for employment in the agency which the information concerns; or
"(ii) any employee who obtained the information in connection with the performance of the employee's duties and responsibilities.
"(4) Any report required under paragraph (3)(A) of this subsection shall be reviewed and signed by the head of the agency and shall include --,
"(A) a summary of the information with respect to which the investigation was initiated;
"(B) a description of the conduct of the investigation;
"(C) a summary of any evidence obtained from the investigation;
"(D) a listing of any violation or apparent violation of any law, rule, or regulation; and
"(E) a description of any corrective action taken or planned as a result of the investigation, such as --,
"(i) changes in agency rules, regulations, or practices;
"(ii) the restoration of any aggrieved employee;
"(iii) disciplinary action against any employee; and
"(iv) referral to the Attorney General of any evidence of a criminal violation.
"(5)(A) Any such report shall be submitted to the Congress, to the President, and to the Special Counsel for transmittal to the complainant. Whenever the Special Counsel does not receive the report of the agency head within the time prescribed in paragraph (3)(A)(ii) of this subsection, the Special Counsel may transmit a copy of the information which was transmitted to the agency head to the President and to the Congress together with a statement noting the failure of the head of the agency to file the required report.
"(B) In any case in which evidence of a criminal violation obtained by an agency in an investigation under paragraph (3) of this subsection is referred to the Attorney General --,
"(i) the report shall not be transmitted to the complainant; and
"(ii) the agency shall notify the Office of Personnel Management and the Office of Management and Budget of the referral.
"(6) Upon receipt of any report of the head of any agency required under paragraph (3)(A)(ii) of this subsection, the Special Counsel shall review the report and determine whether --,
"(A) the findings of the head of the agency appear reasonable; and
"(B) the agency's report under paragraph (3)(A)(ii) of this subsection contains the information required under paragraph (4) of this subsection.
"(7) Whenever the Special Counsel transmits any information to the head of the agency under paragraph (2) of this subsection but does not require an investigation under paragraph (3) of this subsection, the head of the agency shall, within a reasonable time after the information was transmitted, inform the Special Counsel, in writing, of what action has been or is to be taken and when such action will be completed. The Special Counsel shall inform the complainant of the report of the agency head.
"(8) Except as specifically authorized under this subsection, the provisions of this subsection shall not be considered to authorize disclosure of any information by any agency or any person which is --,
"(A) specifically prohibited from disclosure by any other provision of law; or
"(B) specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.
"(9) In any case under subsection (b)(1)(B) of this section involving foreign intelligence or counterintelligence information the disclosure of which is specifically prohibited by law or by Executive order, the Special Counsel shall transmit such information to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate.
"(c)(1)(A) If, in connection with any investigation under this section, the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken which requires corrective action, the Special Counsel shall report the determination together with any findings or recommendations to the Board, the agency involved, and to the Office, and may report the determination, findings, and recommendations to the President. The Special Counsel may include in the report recommendations as to what corrective action should be taken.
"(B) If, after a reasonable period, the agency has not taken the corrective action recommended, the Special Counsel may request the Board to consider the matter. The Board may order such corrective action as the Board considers appropriate, after opportunity for comment by the agency concerned and the Office of Personnel Management.
"(2)(A) If, in connection with any investigation under this section, the Special Counsel determines that there is reasonable cause to believe that a criminal violation by an employee has occurred, the Special Counsel shall report the determination to the Attorney General and to the head of the agency involved, and shall submit a copy of the report to the Director of the Office of Personnel Management and the Director of the Office of Management and Budget.
"(B) In any case in which the Special Counsel determines that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken, the Special Counsel may proceed with any investigation or proceeding instituted under this section notwithstanding that the alleged violation has been reported to the Attorney General.
"(3) If, in connection with any investigation under this section, the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred which is not referred to in paragraph (1) or (2) of this subsection, the violation shall be reported to the head of the agency involved. The Special Counsel shall require, within 30 days of the receipt of the report by the agency, a certification by the head of the agency which states --,
"(A) that the head of the agency has personally reviewed the report; and
"(B) what action has been, or is to be, taken, and when the action will be completed.
"(d) The Special Counsel shall maintain and make available to the public a list of noncriminal matters referred to heads of agencies under subsections (b)(3)(A) and (c)(3) of this section, together with --,
"(1) reports by the heads of agencies under subsection (b)(3) (A) of this section, in the case of matters referred under subsection (b); and
"(2) certifications by heads of agencies under subsection (c)
(3), in the case of matters referred under subsection (c). The Special Counsel shall take steps to ensure that any such public list does not contain any information the disclosure of which is prohibited by law or by Executive order requiring that information be kept secret in the interest of national defense or the conduct of foreign affairs.
"(e)(1) In addition to the authority otherwise provided in this section, the Special Counsel shall, except as provided in paragraph (2) of this subsection, conduct an investigation of any allegation concerning --,
"(A) political activity prohibited under subchapter III of chapter 73 of this title,
relating to political activities by Federal employees;
"(B) political activity prohibited under chapter 15 of this title, relating to political activities by certain State and local officers and employees;
"(C) arbitrary or capricious withholding of information prohibited under section 552 of this title,
except that the Special Counsel shall make no investigation under this subsection of any withholding of foreign intelligence or counterintelligence information the disclosure of which is specifically prohibited by law or by Executive order;
"(D) activities prohibited by any civil service law, rule, or regulation, including any activity relating to political intrusion in personnel decisionmaking; and
"(E) involvement by any employee in any prohibited discrimination found by any court or appropriate administrative authority to have occurred in the course of any personnel action.
"(2) The Special Counsel shall make no investigation of any allegation of any prohibited activity referred to in paragraph (1)(D) or (1)(E) of this subsection if the Special Counsel determines that the allegation may be resolved more appropriately under an administrative appeals procedure.
"(f) During any investigation initiated under this section, no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.
"(g)(1) Except as provided in paragraph (2) of this subsection, if the Special Counsel determines that disciplinary action should be taken against any employee --,
"(A) after any investigation under this section, or
"(B) on the basis of any knowing and willful refusal or failure by an employee to comply with an order of the Merit Systems Protection Board,
the Special Counsel shall prepare a written complaint against the employee containing his determination, together with a statement of supporting facts, and present the complaint and statement to the employee and the Merit Systems Protection Board in accordance with section 1207 of this title.
"(2) In the case of an employee in a confidential, policy-making, policy- determining, or policy-advocating position appointed by the President, by and with the advice and consent of the Senate (other than an individual in the Foreign Service of the United States), the complaint and statement referred to in paragraph (1) of this subsection, together with any response by the employee, shall be presented to the President for appropriate action in lieu of being presented under section 1207 of this title.
"(h) If the Special Counsel believes there is a pattern of prohibited personnel practices and such practices involve matters which are not otherwise appealable to the Board under section 7701 of this title, the Special Counsel may seek corrective action by filing a written complaint with the Board against the agency or employee involved and the Board shall order such corrective action as the Board determines necessary.
"(i) The Special Counsel may as a matter of right intervene or otherwise participate in any proceeding before the Merit Systems Protection Board, except that the Special Counsel shall comply with the rules of the Board and the Special Counsel shall not have any right of judicial review in connection with such intervention.
"(j)(1) The Special Counsel may appoint the legal, administrative, and support personnel necessary to perform the functions of the Special Counsel.
"(2) Any appointment made under this subsection shall comply with the provisions of this title, except that such appointment shall not be subject to the approval or supervision of the Office of Personnel Management or the Executive Office of the President (other than approval required under section 3324 or subchapter VIII of chapter 33 of this title).
"(k) The Special Counsel may prescribe regulations relating to the receipt and investigation of matters under the jurisdiction of the Special Counsel. Such regulations shall be published in the Federal Register.
"(1) The Special Counsel shall not issue any advisory opinion concerning any law, rule, or regulation (other than an advisory opinion concerning chapter 15 or subchapter III of chapter 73 of this title).
"(m) The Special Counsel shall submit an annual report to the Congress on the activities of the Special Counsel, including the number, types, and disposition of allegations of prohibited personnel practices filed with it, investigations conducted by it, and actions initiated by it before the Board, as well as a description of the recommendations and reports made by it to other agencies pursuant to this section, and the actions taken by the agencies as a result of the reports or recommendations. The report required by this subsection shall include whatever recommendations for legislation or other action by Congress the Special Counsel may deem appropriate.
" Section 1207.
Hearings and decisions on complaints filed by the Special Counsel
"(a) Any employee against whom a complaint has been presented to the Merit Systems Protection Board under section 1206(g) of this title is entitled to --,
"(1) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
"(2) be represented by an attorney or other representative;
"(3) a hearing before the Board or an administrative law judge appointed under section 3105 of this title
and designated by the Board;
"(4) have a transcript kept of any hearing under paragraph (3) of this subsection; and
"(5) a written decision and reasons therefor at the earliest practicable date, including a copy of any final order imposing disciplinary action.
"(b) A final order of the Board may impose disciplinary action consisting of removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.
"(c) There may be no administrative appeal from an order of the Board. An employee subject to a final order imposing disciplinary action under this section may obtain judicial review of the order in the United States court of appeals for the judicial circuit in which the employee resides or is employed at the time of the action.
"(d) In case of any State or local officer or employee under chapter 15 of this title, the Board shall consider the case in accordance with the provisions of such chapter.
" Section 1208.
Stays of certain personnel actions
"(a)(1) The Special Counsel may request any member of the Merit Systems Protection Board to order a stay of any personnel action for 15 calendar days if the Special Counsel determines that there are reasonable grounds to believe that the personnel action was taken, or is to be taken, as a result of a prohibited personnel practice.
"(2) Any member of the Board requested by the Special Counsel to order a stay under paragraph (1) of this subsection shall order such stay unless the member determines that, under the facts and circumstances involved, such a stay would not be appropriate.
"(3) Unless denied under paragraph (2) of this subsection, any stay under this subsection shall be granted within 3 calendar days (excluding Saturdays, Sundays, and legal holidays) after the date of the request for the stay by the Special Counsel.
"(b) Any member of the Board may, on the request of the Special Counsel, extend the period of any stay ordered under subsection (a) of this ssection for a period of not more than 30 calendar days.
"(c) The Board may extend the period of any stay granted under subsection (a) of this section for any period which the Board considers appropriate, but only if the Board concurs in the determination of the Special Counsel under such subsection, after an opportunity is provided for oral or written comment by the Special Counsel and the agency involved.
" Section 1209.
Information
"(a) Notwithstanding any other provision of law or any rule, regulation or policy directive, any member of the Board, or any employee of the Board designated by the Board, may transmit to the Congress on the request of any committee or subcommittee thereof, by report, testimony, or otherwise, information and views on functions, responsibilities, or other matters relating to the Board, without review, clearance, or approval by any other administrative authority.
"(b) The Board shall submit an annual report to the President and the Congress on its activities, which shall include a description of significant actions taken by the Board to carry out its functions under this title. The report shall also review the significant actions of the Office of Personnel Management, including an analysis of whether the actions of the Office of Personnel Management are in accord with merit system principles and free from prohibited personnel practices.".
(b) Any term of office of any member of the Merit Systems Protection Board serving on the effective date of this Act shall continue in effect until the term would expire under section 1102 of title 5, United States Code, as in effect immediately before the effective date of this Act, and upon expiration of the term, appointments to such office shall be made under sections 1201 and 1202 of title 5, United States Code (as added by this section).
(c)(1) Section 5314(17) of title 5, United States Code, is amended by striking out " Chairman of the United States Civil Service Commission" and inserting in lieu thereof "Chairman of the Merit Systems Protection Board".
(2) Section 5315(66) of such title is amended by striking out "Members, United States Civil Service Commission" and inserting in lieu thereof "Members, Merit Systems Protection Board".
(3) Section 5315 of such title is further amended by adding at the end thereof the following new paragraph:
"(123) Special Counsel of the Merit Systems Protection Board.".
(4) Paragraph (99) of section 5316 of such title is hereby repealed.
(d) The table of chapters for part II of title 5, United States Code, is amended by inserting after the item relating to chapter 11 the following new item: "12. Merit Systems Protection Board and Special Counsel------------ 1201".
PERFORMANCE APPRAISAL
Sec. 203. (a) Chapter 43 of title 5, United States Code, is amended to read as follows:
"CHAPTER 43 -- PERFORMANCE APPRAISAL
" SUBCHAPTER I -- GENERAL PROVISIONS
" Sec. "4301. Definitions. "4302. Establishment of performance appraisal systems. "4303. Actions based on unacceptable performance. "4304. Responsibilities of Office of Personnel Management. "4305. Regulations.
" Section 4301.
Definitions
" For the purpose of this subchapter --,
"(1) 'agency' means --,
"(A) an Executive agency;
"(B) the Administrative Office of the United States Courts; and
"(C) the Government Printing Office; but does not include --,
"(i) a Government corporation;
"(ii) the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, or any Executive agency or unit thereof which is designated by the President and the principal function of which is the conduct of foreign intelligence or counterintelligence activities; or
"(iii) the General Accounting Office;
"(2) 'employee' means an individual employed in or under an agency, but does not include --,
"(A) an employee outside the United States who is paid in accordance with local native prevailing wage rates for the area in which employed;
"(B) an individual in the Foreign Service of the United States;
"(C) a physician, dentist, nurse, or other employee in the Department of Medicine and Surgery, Veterans' Administration whose pay is fixed under chapter 73 of title 38;
"(D) an administrative law judge appointed under section 3105 of this title;
"(E) an individual in the Senior Executive Service;
"(F) an individual appointed by the President; or
"(G) an individual occupying a position not in the competitive service excluded from coverage of this subchapter by regulations of the Office of Personnel Management; and
"(3) 'unacceptable performance' means performance of an employee which fails to meet established performance standards in one or more critical elements of such employee's position.
" Section 4302.
Establishment of performance appraisal systems
"(a) Each agency shall develop one or more performance appraisal systems which --,
"(1) provide for periodic appraisals of job performance of employees;
"(2) encourage employee participation in establishing performance standards; and
"(3) use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees;
"(b) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for --,
"(1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for each employee or position under the system;
"(2) as soon as practicable, but not later than October 1, 1981, with respect to initial appraisal periods, and thereafter at the beginning of each following appraisal period, communicating to each employee the performance standards and the critical elements of the employee's position;
"(3) evaluating each employee during the appraisal period on such standards;
"(4) recognizing and rewarding employees whose performance so warrants;
"(5) assisting employees in improving unacceptable performance; and
"(6) reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.
" Section 4303.
Actions based on unacceptable performance
"(a) Subject to the provisions of this section, an agency may reduce in grade or remove an employee for unacceptable performance.
"(b)(1) An employee whose reduction in grade or removal is proposed under this section is entitled to --,
"(A) 30 days' advance written notice of the proposed action which identifies --,
"(i) specific instances of unacceptable performance by the employee on which the proposed action is based; and
"(ii) the critical elements of the employee's position involved in each instance of unacceptable performance;
"(B) be represented by an attorney or other representative;
"(C) a reasonable time to answer orally and in writing; and
"(D) a written decision which --,
"(i) in the case of a reduction in grade or removal under this section, specifies the instances of unacceptable performance by the employee on which the reduction in grade or removal is based, and
"(ii) unless proposed by the head of the agency, has been concurred in by an employee who is in a higher position than the employee who proposed the action.
"(2) An agency may, under regulations prescribed by the head of such agency, extend the notice period under subsection (b)(1)(A) of this section for not more than 30 days. An agency may extend the notice period for more than 30 days only in accordance with regulations issued by the Office of Personnel Management.
"(c) The decision to retain, reduce in grade, or remove an employee --,
"(1) shall be made within 30 days after the date of expiration of the notice period, and
"(2) in the case of a reduction in grade or removal, may be based only on those instances of unacceptable performance by the employee --,
"(A) which occurred during the 1-year period ending on the date of the notice under subsection (b)(1)(A) of this section in connection with the decision; and
"(B) for which the notice and other requirements of this section are complied with.
"(d) If, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee's performance continues to be acceptable for 1 year from the date of the advance written notice provided under subsection (b)( 1)(A) of this section, any entry or other notation of the unacceptable performance for which the action was proposed under this section shall be removed from any agency record relating to the employee.
"(e) Any employee who is a preference eligible or is in the competitive service and who has been reduced in grade or removed under this section is entitled to appeal the action to the Merit Systems Protection Board under section 7701 of this title.
"(f) This section does not apply to --,
"(1) the reduction to the grade previously held of a supervisor or manager who has not completed the probationary period under section 3321(a)(2) of this title,
"(2) the reduction in grade or removal of an employee in the competitive service who is serving a probationary or trial period under an initial appointment or who has not completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less, or
"(3) the reduction in grade or removal of an employee in the excepted service who has not completed 1 year of current continuous employment in the same or similar positions.
" Section 4304.
Responsibilities of the Office of Personnel Management
"(a) The Office of Personnel Management shall make technical assistance available to agencies in the development of performance appraisal systems.
"(b)(1) The Office shall review each performance appraisal system developed by any agency under this section and determine whether the performance appraisal system meets the requirements of this subchapter.
"(2) The Comptroller General shall from time to time review on a selected basis performance appraisal systems established under this subchapter to determine the extent to which any such system meets the requirements of this subchapter and shall periodically report its findings to the Office and to the Congress.
"(3) If the Office determines that a system does not meet the requirements of this subchapter (including regulations prescribed under section 4305), the Office shall direct the agency to implement an appropriate system or to correct operations under the system, and any such agency shall take any action so required.
" Section 4305.
Regulations
" The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter.".
(b) The item relating to chapter 43 in the chapter analysis for part III of title 5, United States Code, is amended by striking out "Performance Rating" and inserting in lieu thereof "Performance Appraisal".
ADVERSE ACTIONS
Sec. 204. (a) Chapter 75 of title 5, United States Code, is amended by striking out subchapters I, II, and III and inserting in lieu thereof the following:
"SUBCHAPTER I -- SUSPENSION FOR 14 DAYS OR LESS
" Section 7501.
Definitions
"For the purpose of this subchapter --,
"(1) 'employee' means an individual in the competitive service who is not serving a probationary or trial period under an initial
appointment or who has completed 1 year of current continuous employment in the same or similar positions under other than a
temporary appointment limited to 1 year or less; and
"(2) 'suspension' means the placing of an employee, for disciplinary
reasons, in a temporary status without duties and pay.
" Section 7502.
Actions covered
" This subchapter applies to a suspension for 14 days or less, but does not apply to a suspension under section 7521 or 7532 of this title or any action initiated under section 1206 of this title.
" Section 7503. Cause and procedure
"(a) Under regulations prescribed by the Office of Personnel Management, an employee may be suspended for 14 days or less for such cause as will promote the efficiency of the service (including discourteous conduct to the public confirmed by an immediate supervisor's report of four such instances within any one-year period or any other pattern of discourteous conduct).
"(b) An employee against whom a suspension for 14 days or less is proposed is entitled to --,
"(1) an advance written notice stating the specific reasons for the proposed action;
"(2) a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer:
"(3) be represented by an attorney or other representative; and
"(4) a written decision and the specific reasons therefor at the earliest practicable date.
"(c) Copies of the notice of proposed action, the answer of the employee if written, a summary thereof if made orally, the notice of decision and reasons therefor, and any order effecting the suspension, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee's request.
" Section 7504.
Regulations
" The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter.
" SUBCHAPTER II -- REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN
GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
"Section 7511.
Definitions; application
"(a) For the purpose of this subchapter --,
"(1) 'employee' means --,
"(A) an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less; and
"(B) a preference eligible in an Executive agency in the excepted service, and a preference eligible in the United States Postal Service or the Postal Rate Commission, who has completed 1 year of current continuous service in the same or similar positions;
"(2) 'suspension' has the meaning as set forth in section 7501(2) of this title;
"(3) 'grade' means a level of classification under a position classification system;
"(4) 'pay' means the rate of basic pay fixed by law or administrative action for the position held by an employee; and
"(5) 'furlough' means the placing of an employee in a temporary status without duties and pay because of lack of work or funds or other nondisciplinary reasons.
"(b) This subchapter does not apply to an employee --,
"(1) whose appointment is made by and with the advice and consent of the Senate;
"(2) whose position has been determined to be of a confidential, policy- determining, policy-making or policy-advocating character by --,
"(A) the Office of Personnel Management for a position that it has excepted from the competitive service; or
"(B) the President or the head of an agency for a position which is excepted from the competitive service by statute.
"(c) The Office may provide for the application of this subchapter to any position or group of positions excepted from the competitive service by regulation of the Office.
" Section 7512.
Actions covered
" This subchapter applies to --,
"(1) a removal;
"(2) a suspension for more than 14 days;
"(3) a reduction in grade;
"(4) a reduction in pay; and
"(5) a furlough of 30 days or less;
but does not apply to --,
"(A) a suspension or removal under section 7532 of this title,
"(B) a reduction-in-force action under section 3502 of this title,
"(C) the reduction in grade of a supervisor or manager who has not completed the probationary period under section 3321(a)
(2) of this title if such reduction is to the grade held immediately before becoming such a supervisor or manager,
"(D) a reduction in grade or removal under section 4303 of this title, or
"(E) an action initiated under section 1206 or 7521 of this title.
" Section 7513.
Cause and procedure
"(a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service.
"(b) An employee against whom an action is proposed is entitled to --,
"(1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;
"(2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
"(3) be represented by an attorney or other representative; and
"(4) a written decision and the specific reasons therefor at the earliest practicable date.
"(c) An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section.
"(d) An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.
"(e) Copies of the notice of proposed action, the answer of the employee when written, a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Board upon its request and to the employee affected upon the employee's request.
" Section 7514.
Regulations
" The Office of Personnel Management may prescribe regulations to carry out the purpose of this subchapter, except as it concerns any matter with respect to which the Merit Systems Protection Board may prescribe regulations.".
"SUBCHAPTER III -- ADMINISTRATIVE LAW JUDGES
" Section 7521.
Actions against administrative law judges
"(a) An action may be taken against an administrative law judge appointed under section 3105 of this title by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.
"(b) The actions covered by this section are --,
"(1) a removal;
"(2) a suspension;
"(3) a reduction in grade;
"(4) a reduction in pay; and
"(5) a furlough of 30 days or less;
but do not include --,
"(A) a suspension or removal under section 7532 of this title;
"(B) a reduction-in-force action under section 3502 of this title;
or
"(C) any action initiated under section 1206 of this title.".
(b) So much of the analysis for chapter 75 of title 5, United States Code, as precedes the items relating to subchapter IV is amended to read as follows:
" CHAPTER 75 -- ADVERSE ACTIONS
"SUBCHAPTER I -- SUSPENSION OF 14 DAYS OR LESS
" Sec. "7501. Definitions. "7502. Actions covered. "7503. Cause and procedure. "7504. Regulations.
" SUBCHAPTER II -- REMOVAL, SUSPENSION FOR MORE THAN 14 DAYS, REDUCTION IN
GRADE OR PAY, OR FURLOUGH FOR 30 DAYS OR LESS
"7511. Definitions; application. "7512. Actions covered. "7513. Cause and procedure. "7514. Regulations.
" SUBCHAPTER III -- ADMINISTRATIVE LAW JUDGES
"7521. Actions against administrative law judges.".
APPEALS
Sec. 205. Chapter 77 of title 5, United States Code, is amended to read as follows:
" CHAPTER 77 -- APPEALS
" Sec. "7701. Appellate procedures. "7702. Actions involving discrimination. "7703. Judicial review of decisions of the Merit Systems Protection Board.
" Section 7701.
Appellate procedures
"(a) An employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation. An appellant shall have the right --,
"(1) to a hearing for which a transcript will be kept; and
"(2) to be represented by an attorney or other representative.
Appeals shall be processed in accordance with regulations prescribed by the Board.
"(b) The Board may hear any case appealed to it or may refer the case to an administrative law judge appointed under section 3105 of this title or other employee of the Board designated by the Board to hear such cases, except that in any case involving a removal from the service, the case shall be heard by the Board, an employee experienced in hearing appeals, or an administrative law judge. The Board, administrative law judge, or other employee (as the case may be) shall make a decision after receipt of the written representations of the parties to the appeal and after opportunity for a hearing under subsection (a) (1) of this section. A copy of the decision shall be furnished to each party to the appeal and to the Office of Personnel Management.
"(c)(1) Subject to paragraph (2) of this subsection, the decision of the agency shall be sustained under subsection (b) only if the agency's decision --,
"(A) in the case of an action based on unacceptable performance described in section 4303 of this title, is supported by substantial evidence, or
"(B) in any other case, is supported by a preponderance of the evidence.
"(2) Notwithstanding paragraph (1), the agency's decision may not be sustained under subsection (b) of this section if the employee or applicant for employment --,
"(A) shows harmful error in the application of the agency's procedures in arriving at such decision;
"(B) shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title; or
"(C) shows that the decision was not in accordance with law. "(d)(1) In any case in which --,
"(A) the interpretation or application of any civil service law, rule, or regulation, under the jurisdiction of the Office of Personnel Management is at issue in any proceeding under this section; and
"(B) the Director of the Office of Personnel Management is of the opinion that an erroneous decision would have a substantial impact on any civil service law, rule, or regulation under the jurisdiction of the Office;
the Director may as a matter of right intervene or otherwise participate in that proceeding before the Board. If the Director exercises his right to participate in a proceeding before the Board, he shall do so as early in the proceeding as practicable. Nothing in this title shall be construed to permit the Office to interfere with the independent decisionmaking of the Merit Systems Protection Board.
"(2) The Board shall promptly notify the Director whenever the interpretation of any civil service law, rule, or regulation, under the jurisdiction of the Office is at issue in any proceeding under this section.
"(e)(1) Except as provided in section 7702 of this title, any decision under subsection (b) of this section shall be final unless --,
"(A) a party to the appeal or the Director petitions the Board for review within 30 days after the receipt of the decision; or
"(B) the Board reopens and reconsiders a case on its own motion.
The Board, for good cause shown, may extend the 30-day period referred to in subparagraph (A) of this paragraph. One member of the Board may grant a petition or otherwise direct that a decision be reviewed by the full Board. The preceding sentence shall not apply if, by law, a decision of an administration law judge is required to be acted upon by the Board.
"(2) The Director may petition the Board for a review under paragraph (1) of this subsection only if the Director is of the opinion that the decision is erroneous and will have a substantial impact on any civil service law, rule, or regulation under the jurisdiction of the Office.
"(f) The Board, or an administrative law judge or other employee of the Board designated to hear a case, may--,
"(1) consolidate appeals filed by two or more appellants, or
"(2) join two or more appeals filed by the same appellant and hear and decide them concurrently,
if the deciding official or officials hearing the cases are of the opinion that the action could result in the appeals' being processed more expeditiously and would not adversely affect any party.
"(g)(1) Except as provided in paragraph (2) of this subsection, the Board, or an administrative law judge or other employee of the Board designated to hear a case, may require payment by the agency involved of reasonable attorney fees incurred by an employee or applicant for employment if the employee or applicant is the prevailing party and the Board, administrative law judge, or other employee, as the case may be, determines that payment by the agency is warranted in the interest of justice, including any case in which a prohibited personnel practice was engaged in by the agency or any case in which the agency's action was clearly without merit.
"(2) If an employee or applicant for employment is the prevailing party and the decision is based on a finding of discrimination prohibited under section 2302(b)(1) of this title, the payment of attorney fees shall be in accordance with the standards prescribed under section 706(k) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(k)).
"(h) The Board may, by regulation, provide for one or more alternative methods for settling matters subject to the appellate jurisdiction of the Board which shall be applicable at the election of an applicant for employment or of an employee who is not in a unit for which a labor organization is accorded exclusive recognition, and shall be in lieu of other procedures provided for under this section. A decision under such a method shall be final, unless the Board reopens and reconsiders a case at the request of the Office of Personnel Management under subsection (d) of this section.
"(i)(1) Upon the submission of any appeal to the Board under this section, the Board, through reference to such categories of cases, or other means, as it determines appropriate, shall establish and announce publicly the date by which it intends to complete action on the matter. Such date shall assure expeditious consideration of the appeal, consistent with the interests of fairness and other priorities of the Board. If the Board fails to complete action on the appeal by the announced date, and the expected delay will exceed 30 days, the Board shall publicly announce the new date by which it intends to complete action on the appeal.
"(2) Not later than March 1 of each year, the Board shall submit to the Congress a report describing the number of appeals submitted to it during the preceding calendar year, the number of appeals on which it completed action during that year, and the number of instances during that year in which it failed to conclude a proceeding by the date originally announced, together with an explanation of the reasons therefor.
"(3) The Board shall by rule indicate any other category of significant Board action which the Board determines should be subject to the provisions of this subsection.
"(4) It shall be the duty of the Board, an administrative law judge, or employee designated by the Board to hear any proceeding under this section to expedite to the extent practicable that proceeding.
"(j) The Board may prescribe regulations to carry out the purpose of this section.
" Section 7702. Actions involving discrimination
"(a)(1) Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any employee or applicant for employment who--,
"(A) has been effected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and
"(B) alleges that a basis for the action was discrimination prohibited by--,
"(i) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16c),
"(ii) section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)),
"(iii) section 501 of the Rehabilitation Act of 1973 (29 U. S.C. 791),
"(iv) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631,633a), or
"(v) any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph,
the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures under section 7701 of this title and this section.
"(2) In any matter before an agency which involves--,
"(A) any action described in paragraph (1)(A) of this subsection; and
"(B) any issue of discrimination prohibited under any provision of law described in paragraph (1)(B) of this subsection;
the agency shall resolve such matter within 120 days. The decision of the agency in any such matter shall be a judicially reviewable action unless the employee appeals the matter to the Board under paragraph (1) of this subsection.
"(3) Any decision of the Board under paragraph (1) of this subsection shall be judicially reviewable action as of--,
"(A) the date of issuance of the decision if the employee or applicant does not file a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this section, or
"(B) the date the Commission determines not to consider the decision under subsection (b)(2) of this section.
"(b)(1) An employee or applicant may, within 30 days after notice of the decision of the Board under subsection (a)(1) of this section, petition the Commission to consider the decision.
"(2) The Commission shall, within 30 days after the date of the petition, determine whether to consider the decision. A determination of the Commission not to consider the decision may not be used as evidence with respect to any issue of discrimination in any judicial proceeding concerning that issue.
"(3) If the Commission makes a determination to consider the decision, the Commission shall, within 60 days after the date of the determination, consider the entire record of the proceedings of the Board and, on the basis of the evidentiary record before the Board, as supplemented under paragraph (4) of this subsection, either--,
"(A) concur in the decision of the Board; or
"(B) issue in writing another decision which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law--,
"(i) the decision of the Board constitutes an incorrect interpretation of any provision of any law, rule, regulation, or policy directive referred to in subsection (a)(1)(B) of this section, or
"(ii) the decision involving such provision is not supported by the evidence in the record as a whole.
"(4) In considering any decision of the Board under this subsection, the Commission may refer the case to the Board, or provide on its own, for the taking (within such period as permits the Commission to make a decision within the 60-day period prescribed under this subsection) of additional evidence to the extent it considers necessary to supplement the record.
"(5)(A) If the Commission concurs pursuant to paragraph (3)(A) of this subsection in the decision of the Board, the decision of the Board shall be a judicially reviewable action.
"(B) If the Commission issues any decision under paragraph (3)(B) of this subsection, the Commission shall immediately refer the matter to the Board.
"(c) Within 30 days after receipt by the Board of the decision of the Commission under subsection (b)(5)(B) of this section, the Board shall consider the decision and--,
"(1) concur and adopt in whole the decision of the Commission; or
"(2) to the extent that the Board finds that, as a matter of law. (A) The Commission decision constitutes an incorrect interpretation of any provision of any civil service law, rule, regulation or policy directive, or (B) the Commission decision involving such provision is not supported by the evidence in the record as a whole--,
"(i) reaffirm the initial decision of the Board; or
"(ii) reaffirm the initial decision of the Board with such revisions as it determines appropriate.
If the Board takes the action provided under paragraph (1), the decision of the Board shall be a judicially reviewable action.
"(d)(1) If the Board takes any action under subsection (c)(2) of this section, the matter shall be immediately certified to a special panel described in paragraph (6) of this subsection. Upon certification, the Board shall, within 5 days (excluding Saturdays, Sundays, and holidays), transmit to the special panel the administrative record in the proceeding, including--,
"(A) the factual record compiled under this section,
"(B) the decisions issued by the Board and the Commission under this section, and
"(C) any transcript of oral arguments made, or legal briefs filed, before the Board or the Commission.
"(2)(A) The special panel shall, within 45 days after a matter has been certified to it, review the administrative record transmitted to it and, on the basis of the record, decide the issues in dispute and issue a final decision which shall be a judicially reviewable action.
"(B) The special panel shall give due deference to the respective expertise of the Board and Commission in making its decision.
"(3) The special panel shall refer its decision under paragraph (2) of this subsection to the Board and the Board shall order any agency to take any action appropriate to carry out the decision.
"(4) The special panel shall permit the employee or applicant who brought the complaint and the employing agency to appear before the panel to present oral arguments and to present written arguments with respect to the matter.
"(5) Upon application by the employee or applicant, the Commission may issue such interim relief as it determines appropriate to mitigate any exceptional hardship the employee or applicant might otherwise incur as a result of the certification of any matter under this subsection, except that the Commission may not stay, or order any agency to review on an interim basis, the action referred to in subsection (a)(1) of this section.
"(6)(A) Each time the Board takes any action under subsection (c)(2) of this section, a special panel shall be convened which shall consist of--,
"(i) an individual appointed by the President, by and with the advice and consent of the Senate, to serve for a term of 6 years as chairman of the special panel each time it is convened;
"(ii) one member of the Board designated by the Chairman of the Board each time a panel is convened; and
"(iii) one member of the Commission designated by the Chairman of the Commission each time a panel is convened.
The chairman of the special panel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.
"(B) The chairman is entitled to pay at a rate equal to the maximum annual rate of basic pay payable under the General Schedule for each day he is engaged in the performance of official business on the work of the special panel.
"(C) The Board and the Commission shall provide such administrative assistance to the special panel as may be necessary and, to the extent practicable, shall equally divide the costs of providing the administrative assistance.
"(e)(1) Notwithstanding any other provision of law, if at any time after--,
"(A) the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action under this section or an appeal under paragraph (2) of this subsection;
"(B) the 120th day following the filing of an appeal with the Board under subsection (a)(1) of this section, there is no judicially reviewable action (unless such action is not as the result of the filing of a petition by the employee under subsection (b) (1) of this section); or
"(C) the 180th day following the filing of a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this title, there is no final agency action under subsection (b), (c), or (d) of this section;
an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), or section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216( d)).
"(2) If, at any time after the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action, the employee may appeal the matter to the Board under subsection (a)(1) of this section.
"(3) Nothing in this section shall be construed to affect the right to trial de novo under any provision of law described in subsection (a) (1) of this section after a judicially reviewable action, including the decision of an agency under subsection (a)(2) of this section.
"(f) In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency.
" Section 7703. Judicial review of decisions of the Merit Systems Protection Board
"(a)(1) Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.
"(2) The Board shall be the named respondent in any proceeding brought pursuant to this subsection, unless the employee or applicant for employment seeks review of a final order or decision issued by the Board under section 7701. In review of a final order or decision issued under section 7701, the agency responsible for taking the action appealed to the Board shall be the named respondent.
"(b)(1) Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the Court of Claims or a United States court of appeals as provided in chapters 91 and 158, respectively, of title 28. Notwithstanding any other provision of law, any petition for review must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board.
"(2) Cases of discrimination subject to the provisions of section 7702 of this title shall be filed under section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as applicable. Notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days after the date the individual filing the case received notice of the judicially reviewable action under such section 7702.
"(c) In any case filed in the United States Court of Claims or a United States court of appeals, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be--,
"(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
"(2) obtained without procedures required by law, rule, or regulation having been followed; or
"(3) unsupported by substantial evidence;
except that in the case of discrimination brought under any section referred to in subsection (b)(2) of this section, the employee or applicant shall have the right to have the facts subject to trial de novo by the reviewing court.
"(d) The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board by filing a petition for judicial review in the United States Court of Appeals for the District of Columbia if the Director determines, in his discretion, that the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's decision will have a substantial impact on a civil service law, rule, regulation, or policy directive. If the Director did not intervene in a matter before the Board, the Director may not petition for review of a Board decision under this section unless the Director first petitions the Board for a reconsideration of its decision, and such petition is denied. In addition to the named respondent, the Board and all other parties to the proceedings before the Board shall have the right to appear in the proceeding before the Court of Appeals. The granting of the petition for judicial review shall be at the discretion of the Court of Appeals.".
TECHNICAL AND CONFORMING AMENDMENTS
Sec. 206. Section 2342 of title 28, United States Code, is amended--,
(1) by striking out "and" at the end of paragraph (4),
(2) by striking out the period at the end of paragraph (5) and inserting in lieu thereof ";and", and
(3) by adding at the end thereof the following new paragraph:
"(6) all final orders of the Merit Systems Protection Board except as provided for in section 7703(b) of title 5.".
TITLE III-- STAFFING
VOLUNTEER SERVICE
Sec. 301. (a) Chapter 31 of title 5, United States Code, is amended by adding at the end thereof the following new section:
" Section 3111. Acceptance of volunteer service
"(a) For the purpose of this section, 'student' means an individual who is enrolled, not less than half-time, in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution. An individual who is a student is deemed not to have ceased to be a student during an interim between school years if the interim is not more than 5 months and if such individual shows to the satisfaction of the Office of Personnel Management that the individual has a bona fide intention of continuing to pursue a course of study or training in the same or different educational institution during the school semester (or other period into which the school year is divided) immediately after the interim.
"(b) Notwithstanding section 3679(b) of the Revised Statutes (31 U. S.C. 665(b)), the head of an agency may accept, subject to regulations issued by the Office, voluntary service for the United States if the service--,
"(1) is performed by a student, with the permission of the institution at which the student is enrolled, as part of an agency program established for the purpose of providing educational experiences for the student;
"(2) is to be uncompensated; and
"(3) will not be used to displace any employee.
"(c) Any student who provides voluntary service under subsection (b) of this section shall not be considered a Federal employee for any purpose other than for purposes of chapter 81 of this title (relating to compensation for injury) and sections 2671 through 2680 of title 28 (relating to tort claims).".
(b) The analysis of chapter 31 of title 5, United States Code, is amended by adding at the end thereof the following new item:
"3111. Acceptance of volunteer service.".
INTERPRETING ASSISTANTS FOR DEAF EMPLOYEES
Sec. 302. (a) Section 3102 of title 5, United States Code, is amended--,
(1) by redesignating paragraph (4) of subsection (a) as paragraph (5), by striking out "and" at the end of paragraph (3), and inserting after paragraph (3) the following new paragraph (4):
"(4) 'deaf employee' means an individual employed by an agency who, in accordance with regulations prescribed by the head of the agency, establishes to the satisfaction of the appropriate authority of the agency concerned that the employee has a hearing impairment, either permanent or temporary, so severe or disabling that the employment of an interpreting assistant or assistants for the employee is necessary or desirable to enable such employee to perform the work of the employee; and";
(2) in subsection (b), by inserting "and interpreting assistant or assistants for a deaf employee" after "or assistants for a blind employee", and amending the last sentence to read as follows: " A reading assistant or an interpreting assistant, other than the one employed or assigned under subsection (d) of this section, may receive pay for services performed by the assistant by and from the blind or deaf employee or a nonprofit organization, without regard to section 209 of title 18.";
(3) in subsection (c), by inserting "or deaf" after "blind"; and
(4) by inserting at the end thereof the following new subsection:
"(d) The head of each agency may also employ or assign, subject to section 209 of title 18 and to the provisions of this title governing appointment and chapter 51 and subchapter III of chapter 53 of this title governing classification and pay, such reading assistants for blind employees and such interpreting assistants for deaf employees as may be necessary to enable such employees to perform their work.".
(b)(1) The analysis of chapter 31 of title 5, United States Code, is amended by striking out the item relating to section 3102 and inserting in lieu thereof the following:
"3102. Employment of reading assistants for blind employees and interpreting assistants for deaf employees.".
(2) The heading for section 3102 of title 5, United States Code, is amended to read as follows:
"Section 3102. Employment of reading assistants for blind employees and interpreting assistants for deaf employees".
(c) Section 410(b)(1) of title 39, United States Code, is amended by inserting after "open meetings)" a comma and "3102 (employment of reading assistants for blind employees and interpreting assistants for deaf employees),".
PROBATIONARY PERIOD
Sec. 303. "a) Section 3321 of title 5, United States Code, is amended to read as follows:
" Section 3321. Competitive service; probationary period
"(a) The President may take such action, including the issuance of rules, regulations, and directives, as shall provide as nearly as conditions of good administration warrant for a period of probation--,
"(1) before an appointment in the competitive service becomes final; and
"(2) before initial appointment as a supervisor or manager becomes final.
"(b) An individual--,
"(1) who has been transferred, assigned, or promoted from a position to a supervisory or managerial position, and
"(2) who does not satisfactorily complete the probationary period under subsection (a)(2) of this section,
shall be returned to a position of no lower grade and pay than the position from which the individual was transferred, assigned, or promoted. Nothing in this section prohibits an agency from taking an action against an individual serving a probationary period under subsection (a)(2) of this section for cause unrelated to supervisory or managerial performance.
"(c) Subsections (a) and (b) of this section shall not apply with respect to appointments in the Senior Executive Service.".
(b) The item in the analysis for chapter 33 of title 5, United States Code, is amended to read as follows: "3321. Competitive service; probationary period.".
TRAINING
Sec. 304. Section 4103 of title 5, United States Code, is amended by inserting "(a)" before " In order to increase" and by adding at the end thereof the following new subsection:
"(b)(1) Notwithstanding any other provision of this chapter, an agency may train any employee of the agency to prepare the employee for placement in another agency if the head of the agency determines that the employee will otherwise be separated under conditions which would entitle the employee to severance pay under section 5595 of this title.
"(2) Before undertaking any training under this subsection, the head of the agency shall obtain verification from the Office of Personnel Management that there exists a reasonable expectation of placement in another agency.
"(3) In selecting an employee for training under this subsection, the head of the agency shall consider--,
"(A) the extent to which the current skills, knowledge, and abilities of the employee may be utilized in the new position;
"(B) the employee's capability to learn skills and acquire knowledge and abilities needed in the new position; and
"(C) the benefits to the Government which would result from retaining the employee in the Federal service.".
TRAVEL, TRANSPORTATION, AND SUBSISTENCE
Sec. 305. Section 5723(d) of title 5, United States Code, is amended by striking out "not".
RETIREMENT
Sec. 306. Section 8336(d)(2) of title 5, United States Code, is amended to read as follows:
"(2) voluntarily, during a period when the agency in which the employee is serving is undergoing a major reorganization, a major reduction in force, or a major transfer of function, as determined by the Office of Personnel Management, and the employee is serving in a geographic area designated by the Office;".
VETERANS AND PREFERENCE ELIGIBLES
Sec. 307. (a) Effective beginning October 1, 1980, section 2108 of title 5, United States Code, is amended--,
(1) by striking out "and" at the end of paragraph (2);
(2) by inserting in paragraph (3) after "means" the following: ",except as provided in paragraph (4) of this section";
(3) by striking out the period at the end of paragraph (3) and inserting in lieu thereof a semicolon; and
(4) by adding at the end thereof the following new paragraphs:
"(4) except for the purposes of chapters 43 and 75 of this title,
'preference eligible' does not include a retired member of the armed forces unless--,
"(A) the individual is a disabled veteran; or
"(B) the individual retired below the rank of major or its equivalent; and
"(5) 'retired member of the armed forces' means a member or former member of the armed forces who is entitled, under statute, to retired, retirement, or retainer pay on account of service as a member.".
(b)(1) Chapter 31 of title 5, United States Code, is amended by adding at the end thereof the following new section:
" Section 3112. Disabled veterans; noncompetitive appointment
"Under such regulations as the Office of Personnel Management shall prescribe, an agency may make a noncompetitive appointment leading to conversion to career or career-conditional employment of a disabled veteran who has a compensable service-connected disability of 30 percent or more."
(2) The Director of the Office of Personnel Management shall include in the report required by section 2014(d) of title 38, United States Code, the same type of information regarding the use of the authority provided in section 3112 of title 5, United States Code (as added by paragraph (1) of this subsection), as is required by such section 2014 with respect to the use of the authority to make veterans readjustment appointments.
(3) The analysis of chapter 31 of title 5, United States Code, is amended by adding at the end thereof the following new item: "3112. Disabled veterans; noncompetitive appointment.".
(c) Section 3312 of title 5, United States Code, is amended--,
(1) by inserting "(a)" before "In"; and
(2) by adding at the end thereof the following new subsection:
"(b) If an examining agency determines that, on the basis of evidence before it, a preference eligible under section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the preference eligible of the reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible's last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided in any such response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated.".
(d) Section 3318(b) of title 5, United States Code, is amended to read as follows:
"(b)(1) If an appointing authority proposes to pass over a preference eligible on a certificate in order to select an individual who is not a preference eligible, such authority shall file written reasons with the Office for passing over the preference eligible. The Office shall make the reasons presented by the appointing authority part of the record of the preference eligible and may require the submission of more detailed information from the appointing authority in support of the passing over of the preference eligible. The Office shall determine the sufficiency or insufficiency of the reasons submitted by the appointing authority, taking into account any response received from the preference eligible under paragraph (2) of this subsection. When the Office has completed its review of the proposed passover, it shall send its findings to the appointing authority and to the preference eligible. The appointing authority shall comply with the findings of the Office.
"(2) In the case of a preference eligible described in section 2108( 3) (C) of this title who has a compensable service-connected disability of 30 percent or more, the appointing authority shall at the same time it notifies the Office under paragraph (1) of this subsection, notify the preference eligible of the proposed passover, of the reasons therefor, and of his right to respond to such reasons to the Office within 15 days of the date of such notification. The Office shall, before completing its review under paragraph (1) of this subsection, require a demonstration by the appointing authority that the passover notification was timely sent to the preference eligible's last known address.
"(3) A preference eligible not described in paragraph (2) of this subsection, or his representative, shall be entitled, on request, to a copy of--,
"(A) the reasons submitted by the appointing authority in support of the proposed passover, and
"(B) the findings of the Office.
"(4) In the case of a preference eligible described in paragraph (2) of this subsection, the functions of the Office under this subsection may not be delegated.".
(e) Section 3502 of title 5, United States Code, is amended by striking out subsection (b) and inserting in lieu thereof the following new subsections:
"(b) A preference eligible described in section 2108(3)(C) of this title who has a compensable service-connected disability of 30 percent or more and whose performance has not been rated unacceptable under a performance appraisal system implemented under chapter 43 of this title is entitled to be retained in preference to other preference eligibles.
"(c) An employee who is entitled to retention preference and whose performance has not been rated unacceptable under a performance appraisal system implemented under chapter 43 of this title is entitled to be retained in preference to other competing employees.".
(f) Section 3503 of title 5, United States Code, is amended by striking out in subsection (a) and (b) "each preference eligible employee" and inserting in lieu thereof "each competing employee" both places it appears.
(g) Section 3504 of title 5, United States Code, is amended--,
(1) by inserting "(a)" before " In"; and
(2) by adding at the end thereof the following new subsection:
"(b) If an examining agency determines that, on the basis of evidence before it, a preference eligible described in section 2108(3)( C) of this title who has a compensable service-connected disability of 30 percent or more is not able to fulfill the physical requirements of the position, the examining agency shall notify the Office of the determination and, at the same time, the examining agency shall notify the preference eligible of the reasons for the determination and of the right to respond, within 15 days of the date of the notification, to the Office. The Office shall require a demonstration by the appointing authority that the notification was timely sent to the preference eligible's last known address and shall, before the selection of any other person for the position, make a final determination on the physical ability of the preference eligible to perform the duties of the position, taking into account any additional information provided in the response. When the Office has completed its review of the proposed disqualification on the basis of physical disability, it shall send its findings to the appointing authority and the preference eligible. The appointing authority shall comply with the findings of the Office. The functions of the Office under this subsection may not be delegated.".
(h)(1) Section 3319 of chapter 33 of title 5, United States Code, is repealed.
(2) The analysis for chapter 33 of title 5, United States Code, is amended by striking out the item relating to section 3319.
DUAL PAY FOR RETIRED MEMBERS OF THE UNIFORMED SERVICES
Sec. 308. (a) Section 5532 of title 5, United States Code, relating to retired officers of the uniformed services, is amended by redesignating subsections (c) and (d) as subsections (d) and (e) and by inserting after subsection (b) the following:
"(c)(1) If any member or former member of a uniformed service is receiving retired or retainer pay and is employed in a position the annual rate of basic pay for which, when combined with the member's annual rate of retired or retainer pay (reduced as provided under subsection (b) of this section), exceeds the rate of basic pay then currently paid for level V of the Executive Schedule, such member's retired or retainer pay shall be reduced by an amount computed under paragraph (2) of this subsection. The amounts of the reductions shall be deposited to the general fund of the Treasury of the United States.
"(2) The amount of each reduction under paragraph (1) of this subsection allocable for any pay period in connection with employment in a position shall be equal to the retired or retainer pay allocable to the pay period (reduced as provided under subsection (b) of this section), except that the amount of the reduction may not result in--,
"(A) the amount of retired or retainer pay allocable to the pay period after being reduced, when combined with the basic pay for the employment during the pay period, being at a rate less than the rate of basic pay then currently paid for level V of the Executive Schedule; or
"(B) the amount of retired pay or retainer pay being reduced to an amount less than the amount deducted from the retired or retainer pay as a result of participation in any survivor's benefits in connection with the retired or retainer pay or veterans insurance programs.".
(b) Section 5531 of title 5, United States Code is amended--,
(1) by striking out paragraph (1) and inserting in lieu thereof the following:
"(1) 'member' has the meaning given such term by section 101 (23) of title 37;";
(2) by striking out the period at the end of paragraph (2) and inserting in lieu thereof ";and"; and
(3) by adding at the end thereof the following new paragraph:
"(3) 'retired or retainer pay' means retired pay, as defined in section 8311(3) of this title,
determined without regard to subparagraphs (B) through (D) of such section 8311(3); except that such term does not include an annuity payable to an eligible beneficiary of a member or former member of a uniformed service under chapter 73 of title 10.".
(c) Section 5532(d) of title 5, United States Code, as amended by subsection (a), is amended--,
(1) by striking out "subsection (b) of";
(2) by striking out "or retirement" each place it appears and inserting in lieu thereof "or retainer";
(3) by striking out "a retired officer of a regular component of a uniformed service" and inserting in lieu thereof "a member or former member of a uniformed service who is receiving retired or retainer pay"; and
(4) in paragraph (1), by striking out "whose retirement was" and inserting in lieu thereof "whose retired or retainer pay is computed, in whole or in part,".
(d) Section 5532(e) of title 5, United States Code, as amended by subsection (a), is amended to read as follows:
"(e) The Office of Personnel Management may, during the 5-year period after the effective date of the Civil Service Reform Act of 1978 authorize exceptions to the restrictions in subsections (a), (b), and (c) of this section only when necessary to meet special or emergency employment needs which result from a severe shortage of well qualified candidates in positions of medical officers which otherwise cannot be readily met. An exception granted by the office with respect to any individual shall terminate upon a break in service of 3 days or more.".
(e) Section 5532(b) of title 5, United States Code, is amended by striking out "or retirement" each place it appears and inserting in lieu thereof "or retainer".
(f)(1) The heading for section 5532 of title 5, United States Code, is amended to read as follows:
" Section 5532. Employment of retired members of the uniformed services; reduction in retired or retainer pay".
(2) The item relating to section 5532 in the table of sections for chapter 55 of title 5, United States Code, is amended to read as follows:
"5532. Employment of retired members of the uniformed services; reduction in retired or retainer pay.".
(g)(1) Except as provided in paragraph (2) of this subsection, the amendments made by this section shall apply only with respect to pay periods beginning after the effective date of this Act and only with respect to members of the uniformed services who first receive retired or retainer pay (as defined in section 5531(3) of title 5, United States Code (as amended by this section)), after the effective date of this Act.
(2) Such amendments shall not apply to any individual employed in a position on the date of the enactment of this Act so long as the individual continues to hold any such position (disregarding any break in service of 3 days or less) if the individual, on that date, would have been entitled to retired or retainer pay but for the fact the individual does not satisfy any applicable age requirement.
(3) The provisions of section 5532 of title 5, United States Code, as in effect immediately before the effective date of this Act, shall apply with respect to any retired officer of a regular component of the uniformed services who is receiving retired pay on or before such date, or any individual to whom paragraph (2) applies, in the same manner and to the same extent as if the preceding subsections of this section had not been enacted.
CIVIL SERVICE EMPLOYMENT INFORMATION
Sec. 309. (a) Chapter 33 of title 5, United States Code, is amended by adding at the end thereof the following new section:
"Section 3327. Civil service employment information
"(a) The Office of Personnel Management shall provide that information concerning opportunities to participate in competitive examinations conducted by, or under authority delegated by, the Office of Personnel Management shall be made available to the employment offices of the United States Employment Service.
"(b) Subject to such regulations as the Office may issue, each agency shall promptly notify the Office and the employment offices of the United States Employment Service of--,
"(1) each vacant position in the agency which is in the competitive service or the Senior Executive Service and for which the agency seeks applications from persons outside the Federal service, and
"(2) the period during which applications will be accepted.
As used in this subsection, 'agency' means an agency as defined in section 5102(a)(1) of this title other than an agency all the positions in which are excepted by statute from the competitive service.".
(b) The table of sections for chapter 33 of title 5, United States Code, is amended by inserting after the item relating to section 3326 the following new item:
"3327. Civil service employment information."
MINORITY RECRUITMENT PROGRAM
Sec. 310. Section 7151 of title 5, United States Code, is amended--,
(1) by striking out the section heading and inserting in lieu thereof the following:
" Section 7151. Antidiscrimination policy; minority recruitment program";
(2) by inserting after such section heading the following new subsection:
"(a) For the purpose of this section--,
"(1) 'underrepresentation' means a situation in which the number of members of a minority group designation (determined by the Equal Employment Opportunity Commission in consultation with the Office of Personnel Management, on the basis of the policy set forth in subsection (b) of this section) within a category of civil service employment constitutes a lower percentage of the total number of employees within the employment category than the percentage that the minority constituted within the labor force of the United States, as determined under the most recent decennial or mid-decade census, or current population survey, under title 13, and
"(2) 'category of civil service employment' means--,
"(A) each grade of the General Schedule described in section 5104 of this title;
"(B) each position subject to subchapter IV of chapter 53 of this title;
"(C) such occupational, professional, or other groupings (including occupational series) within the categories established under subparagraphs (A) and (B) of this paragraph as the Office determines appropriate.";
(3) by inserting "(b)" before " It is the policy"; and
(4) by adding at the end thereof the following new subsection:
"(c) Not later than 180 days after the date of the enactment of the Civil Service Reform Act of 1978, the Office of Personnel Management shall, by regulation, implement a minority recruitment program which shall provide, to the maximum extent practicable--,
"(1) that each Executive agency conduct a continuing program for the recruitment of members of minorities for positions in the agency to carry out the policy set forth in subsection (b) in a manner designed to eliminate underrepresentation of minorities in the various categories of civil service employment within the Federal service, with special efforts directed at recruiting in minority communities, in educational institutions, and from other sources from which minorities can be recruited; and
"(2) that the Office conduct a continuing program of--,
"(A) assistance to agencies in carrying out programs under paragraph (1) of this subsection, and
"(B) evaluation and oversight and such recruitment programs to determine their effectiveness in eliminating such minority underrepresentation.
"(d) Not later than 60 days after the date of the enactment of the Civil Service Reform Act of 1978, the Equal Employment Opportunity Commission shall--,
"(1) establish the guidelines proposed to be used in carrying out the program required under subsection (c) of this section; and
"(2) make determinations of underrepresentation which are proposed to be used initially under such program; and
"(3) transmit to the Executive agencies involved, to the Office of Personnel Management, and to the Congress the determinations made under paragraph (2) of this subsection.
"(e) Not later than January 31 of each year, the Office shall prepare and transmit to each House of the Congress a report on the activities of the Office and of Executive agencies under subsection (c) of this section, including the affirmative action plans submitted under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), the personnel data file maintained by the Office of Personnel Management, and any other data necessary to evaluate the effectiveness of the program for each category of civil service employment and for each minority group designation, for the preceding fiscal year, together with recommendations for administrative or legislative action the Office considers appropriate.".
TEMPORARY EMPLOYMENT LIMITATION
Sec. 311. (a) The total number of civilian employees in the executive branch, on September 30, 1979, on September 30, 1980, and on September 30, 1981, shall not exceed the number of such employees on September 30, 1977.
(b)(1) For the purpose of this section, "civilian employees in the executive branch" means all civilian employees within the executive branch of the Government (other than in the United States Postal Service or the Postal Rate Commission), whether employed on a full-time, part-time, or intermittent basis and whether employed on a direct hire or indirect hire basis.
(2)(A) Such term does not include individuals participating in special employment programs established for students and disadvantaged youth.
(B) The total number of individuals participating in such programs shall not at any time exceed 60,000.
(c) In applying the limitation of subsection (a)--,
(1) part-time civilian employees in excess of the number of part-time civilian employees in the executive branch employed on September 30, 1977, may be counted as a fraction which is determined by dividing 40 hours into the average number of hours of such employees' regularly scheduled workweek; and
(2) the number of civilian employees in the executive branch on September 30, 1977, shall be determined on the basis of the number of such employees as set forth in the Monthly Report of Civilian Employment published by the Civil Service Commission.
(d)(1) The provisions of this section shall not apply during a time of war or during a period of national emergency declared by the Congress or the President.
(2)(A) Subject to the limitation of subparagraph (B) of this paragraph, the President may authorize employment of civilian employees in excess of the limitation of subsection (a) if he deems that such action is necessary in the public interest.
(B) The President may not, under this paragraph, increase the maximum number of civilian employees in the executive branch by more than the percentage increase of the population of the United States since September 30, 1978, as estimated by the Bureau of the Census.
(e) The President shall provide that no increase occurs in the procurement of personal services by contract by reason of the enactment of this section except in cases in which it is to the financial advantage of the Government to do so.
(f) The President shall prescribe regulations to carry out the purposes of this section.
(g) The provisions of this section shall terminate on January 31, 1981.
TITLE IV-- SENIOR EXECUTIVE SERVICE
GENERAL PROVISIONS
Sec. 401. (a) Chapter 21 of title 5, United States Code, is amended by inserting after section 2101 the following new section:
Section 2101a. The Senior Executive Service
" The ' Senior Executive Service' consists of Senior Executive Service positions (as defined in section 3132(a)(2) of this title).".
(b) Section 2102(a)(1) of title 5, United States Code, is amended--,
(1) by striking out "and" at the end of subparagraph (A);
(2) by adding "and" at the end of subparagraph (B); and
(3) by adding at the end thereof the following new subparagraph:
"(C) positions in the Senior Executive Service;".
(c) Section 2103(a) of title 5, United States Code, is amended by inserting before the period at the end thereof the following: "or the Senior Executive Service".
(d) Section 2108(5) of title 5, United States Code (as amended in section 307 of this Act), is further amended--,
(1) by striking out the period at the end thereof and inserting in lieu thereof a semicolon; and
(2) by adding at the end thereof the following: "but does not include applicants for, or members of, the Senior Executive Service.".
(e) The analysis for chapter 21 of title 5, United States Code, is amended by inserting after the item relating to section 2101 the following new item:
"2101a. The Senior Executive Service.".
AUTHORITY FOR EMPLOYMENT
Sec. 402. (a) Chapter 31 of title 5, United States Code, is amended by inserting after section 3112 (as added by section 307(b) of this Act), the following new subchapter:
"SUBCHAPTER II-- THE SENIOR EXECUTIVE SERVICE
" Section 3131. The Senior Executive Service
"It is the purpose of this subchapter to establish a Senior Executive Service to ensure that the executive management of the Government of the United States is responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality. The Senior Executive Service shall be administered so as to--,
"(1) provide for a compensation system, including salaries, benefits, and incentives, and for other conditions of employment, designed to attract and retain highly competent senior executives;
"(2) ensure that compensation, retention, and tenure are contingent on executive success which is measured on the basis of individual and organizational performance (including such factors as improvements in efficiency, productivity, quality of work or service, cost efficiency, and timeliness of performance and success in meeting equal employment opportunity goals);
"(3) assure that senior executives are accountable and responsible for the effectiveness and productivity of employees under
them;
"(4) recognize exceptional accomplishment;
"(5) enable the head of an agency to reassign senior executives to best accomplish the agency's mission;
"(6) provide for severance pay, early retirement, and placement assistance for senior executives who are removed from the Senior Executive Service for nondisciplinary reasons;
"(7) protect senior executives from arbitrary or capricious actions;
"(8) provide for program continuity and policy advocacy in the management of public programs;
"(9) maintain a merit personnel system free of prohibited personnel practices;
"(10) ensure accountability for honest, economical, and efficent Government;
"(11) ensure compliance with all applicable civil service laws, rules, and regulations, including those related to equal employment opportunity, political activity, and conflicts of interest;
"(12) provide for the initial and continuing systematic development of highly competent senior executives;
"(13) provide for an executive system which is guided by the public interest and free from improper political interference; and
"(14) appoint career executives to fill Senior Executive Service positions to the extent practicable, consistent with the effective and efficient implementation of agency policies and responsibilities.
" Section 3132. Definitions and exclusions
"(a) For the purpose of this subchapter--,
"(1) 'agency' means an Executive agency, except a Government corporation and the General Accounting Office, but does not include--,
"(A) any agency or unit thereof excluded from coverage by the President under subsection (c) of this section; or
"(B) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, as determined by the President, an Executive agency, or unit thereof, whose principal function is the conduct of foreign intelligence or counterintelligence activities;
"(2) ' Senior Executive Service position' means any position in an agency which is in GS-16, 17, or 18 of the General Schedule or in level IV or V of the Executive Schedule
or an equivalent position, which is not required to be filled by an appointment by the President by and with the advice and consent of the Senate, and in which an employee--,
"(A) directs the work of an organizational unit;
"(B) is held accountable for the success of one or more specific programs or projects;
"(C) monitors progress toward organizational goals and periodically evaluates and makes appropriate adjustments to such goals;
"(D) supervises the work of employees other than personal assistants; or
"(E) otherwise exercises important policy-making, policy-determining, or other executive functions; but does not include--,
"(i) any position in the Foreign Service of the United States;
"(ii) an administrative law judge position under section 3105 of this title; or
"(iii) any position in the Drug Enforcement Administration which is excluded from the competitive service under section 201 of the Crime Control Act of 1976 (5 U.S.C. 5108 note; 90 Stat. 2425);
"(3) 'senior executive' means a member of the Senior Executive Service;
"(4) 'career appointee' means an individual in a Senior Executive Service position whose appointment to the position or previous appointment to another Senior Executive Service position was based on approval by the Office of Personnel Management of the executive qualifications of such individual;
"(5) 'limited term appointee' means an individual appointed under a nonrenewable appointment for a term of 3 years or less to a Senior Executive Service position the duties of which will expire at the end of such term;
"(6) 'limited emergency appointee' means an individual appointed under a nonrenewable appointment, not to exceed 18 months, to a Senior Executive Service position established to meet a bona fide, unanticipated, urgent need;
"(7) 'noncareer appointee' means an individual in a Senior Executive Service position who is not a career appointee, a limited term appointee, or a limited emergency appointee;
"(8) 'career reserved position' means a position which is required to be filled by a career appointee and which is designated under subsection (b) of this section; and
"(9) 'general position' means any position, other than a career reserved position, which may be filled by either a career appointee, noncareer appointee, limited emergency appointee, or limited term appointee.
"(b)(1) For the purpose of paragraph (8) of subsection (a) of this section, the Office shall prescribe the criteria and regulations governing the designation of career reserved positions. The criteria and regulations shall provide that a position shall be designated as a career reserved position only if the filling of the position by a career appointee is necessary to ensure impartiality, or the public's confidence in the impartiality, of the Government. The head of each agency shall be responsible for designating career reserved positions in such agency in accordance with such criteria and regulations.
"(2) The Office shall periodically review general positions to determine whether the positions should be designated as career reserved. If the Office determines that any such position should be so designated, it shall order the agency to make the designation.
"(3) Notwithstanding the provisions of any other law, any position to be designated as a Senior Executive Service position (except a position in the Executive Office of the President) which--,
"(A) is under the Executive Schedule,
or for which the rate of basic pay is determined by reference to the Executive Schedule, and
"(B) on the day before the date of the enactment of the Civil Service Reform Act of 1978 was specifically required under section 2102 of this title or otherwise required by law to be in the competitive service,
shall be designated as a career reserved position if the position entails direct responsibility to the public for the management or operation of particular government programs or functions.
"(4) Not later than March 1 of each year, the head of each agency shall publish in the Federal Register a list of positions in the agency which were career reserved positions during the preceding calendar year.
"(c) An agency may file an application with the Office setting forth reasons why it, or a unit thereof, should be excluded from the coverage of this subchapter. The Office shall--,
"(1) review the application and stated reasons,
"(2) undertake a review to determine whether the agency or unit should be excluded from the coverage of this subchapter, and
"(3) upon completion of its review, recommend to the President whether the agency or unit should be excluded from the coverage of this subchapter.
If the Office recommends that an agency or unit thereof be excluded from the coverage of this subchapter, the President may, on written determination, make the exclusion for the period determined by the President to be appropriate.
"(d) Any agency or unit which is excluded from coverage under subsection (c) of this section shall make a sustained effort to bring its personnel system into conformity with the Senior Executive Service to the extent practicable.
"(e) The Office may at any time recommend to the President that any exclusion previously granted to an agency or unit thereof under subsection (c) of this section be revoked. Upon recommendation of the Office, the President may revoke, by written determination, any exclusion made under subsection (c) of this section.
"(f) If--,
"(1) any agency is excluded under subsection (c) of this section, or
"(2) any exclusion is revoked under subsection (e) of this section,
the Office shall, within 30 days after the action, transmit to the Congress written notice of the exclusion or revocation.
" Section 3133. Authorization of positions; authority for appointment
"(a) During each even-numbered calendar year, each agency shall--,
"(1) examine its needs for Senior Executive Service positions for each of the 2 fiscal years beginning after such calendar year; and
"(2) submit to the Office of Personnel Management a written request for a specific number of Senior Executive Service positions for each of such fiscal years.
"(b) Each agency request submitted under subsection (a) of this section shall--,
"(1) be based on the anticipated type and extent of program activities and budget requests of the agency for each of the 2 fiscal years involved, and such other factors as may be prescribed from time to time by the Office; and
"(2) identify, by position title, positions which are proposed to be designated as or removed from designation as career reserved positions, and set forth justifications for such proposed actions.
"(c) The Office of Personnel Management, in consultation with the Office of Management and Budget, shall review the request of each agency and shall authorize, for each of the 2 fiscal years covered by requests required under subsection (a) of this section, a specific number of Senior Executive Service positions for each agency.
"(d)(1) The Office of Personnel Management may, on a written request of an agency or on its own initiative, make an adjustment in the number of positions authorized for any agency. Each agency request under this paragraph shall be submitted in such form, and shall be based on such factors, as the Office shall prescribe.
"(2) The total number of positions in the Senior Executive Service may not at any time during any fiscal year exceed 105 percent of the total number of positions authorized under subsection (c) of this section for such fiscal year.
"(e)(1) Not later than July 1, 1979, and from time to time thereafter as the Director of the Office of Personnel Management finds appropriate, the Director shall establish, by rule issued in accordance with section 1103(b) of this title, the number of positions out of the total number of positions in the Senior Executive Service, as authorized by this section or section 413 of the Civil Service Reform Act of 1978, which are to be career reserved positions. Except as provided in paragraph (2) of this subsection, the number of positions required by this subsection to be career reserved positions shall not be less than the number of the positions then in the Senior Executive Service which, before the date of such Act, were authorized to be filled only through competitive civil service examination.
"(2) The Director may, by rule, designate a number of career reserved positions which is less than the number required by paragraph (1) of this subsection only if the Director determines such lesser number necessary in order to designate as general positions one or more positions (other than positions described in section 3132(b)(3) of this title) which--,
"(A) involve policymaking responsibilities which require the advocacy or management of programs of the President and support of controversial aspects of such programs;
"(B) involve significant participation in the major political policies of the President; or
"(C) require the senior executives in the positions to serve as personal assistants of, or advisers to, Presidential appointees.
The Director shall provide a full explanation for his determination in each case.
" Section 3134. Limitations on noncareer and limited appointments
"(a) During each calendar year, each agency shall--,
"(1) examine its needs for employment of noncareer appointees for the fiscal year beginning in the following year; and
"(2) submit to the Office of Personnel Management, in accordance with regulations prescribed by the Office, a written request for authority to employ a specific number of noncareer appointees for such fiscal year.
"(b) The number of noncareer appointees in each agency shall be determined annually by the Office on the basis of demonstrated need of the agency. The total number of noncareer appointees in all agencies may not exceed 10 percent of the total number of Senior Executive Service positions in all agencies.
"(c) Subject to the 10 percent limitation of subsection (b) of this section, the Office may adjust the number of noncareer positions authorized for any agency under subsection (b) of this section if emergency needs arise that were not anticipated when the original authorizations were made.
"(d) The number of Senior Executive Service positions in any agency which are filled by noncareer appointees may not at any time exceed the greater of--,
"(1) 25 percent of the total number of Senior Executive Service positions in the agency; or
"(2) the number of positions in the agency which were filled on the date of the enactment of the Civil Service Reform Act of 1978 by--,
"(A) noncareer executive assignments under subpart F of part 305 of title 5, Code of Federal Regulations,
as in effect on such date, or
"(B) appointments to level IV or V of the Executive Schedule
which were not required on such date to be made by and with the advice and consent of the Senate.
This subsection shall not apply in the case of any agency having fewer than 4 Senior Executive Service positions.
"(e) The total number of limited emergency appointees and limited term appointees in all agencies may not exceed 5 percent of the total number of Senior Executive Service positions in all agencies.
" Section 3135. Biennial report
"(a) The Office of Personnel Management shall submit to each House of the Congress, at the time the budget is submitted by the President to the Congress during each odd-numbered calendar year, a report on the Senior Executive Service. The report shall include--,
"(1) the number of Senior Executive Service positions authorized for the then current fiscal year, in the aggregate and by agency, and the projected number of Senior Executive Service positions to be authorized for the next two fiscal years, in the aggregate and by agency;
"(2) the authorized number of career appointees and noncareer appointees, in the aggregate and by agency, for the then current fiscal year;
"(3) the position titles and descriptions of Senior Executive Service positions designated for the then current fiscal year;
"(4) a description of each exclusion in effect under section 3132(c) of this title during the preceding fiscal year;
"(5) the number of career appointees, limited term appointees, limited emergency appointees, and noncareer appointees, in the aggregate and by agency, employed during the preceding fiscal year;
"(6) the percentage of senior executives at each pay rate, in the aggregate and by agency, employed at the end of the preceding fiscal year;
"(7) the distribution and amount of performance awards, in the aggregate and by agency, paid during the preceding fiscal year;
"(8) the estimated number of career reserved positions which, during the two fiscal years following the then current fiscal year, will become general positions and the estimated number of general positions which during such two fiscal years, will become career reserved positions; and
"(9) such other information regarding the Senior Executive Service as the Office considers appropriate.
"(b) The Office of Personnel Management shall submit to each House of the Congress, at the time the budget is submitted to the Congress during each even-numbered calendar year, an interim report showing changes in matters required to be reported under subsection (a) of this section.
" Section 3136. Regulations
" The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.".
(b) Section 3109 of title 5, United States Code, is amended by inserting at the end thereof the following new subsection:
"(c) Positions in the Senior Executive Service may not be filled under the authority of subsection (b) of this section.".
(c) The analysis for chapter 31 of title 5, United States Code, is amended--,
(1) by striking out the heading for chapter 31 and inserting in lieu thereof the following:
"CHAPTER 31--AUTHORITY FOR EMPLOYMENT
" SUBCHAPTER I--EMPLOYMENT AUTHORITIES"; and
(2) by inserting at the end thereof the following:
"SUBCHAPTER II-- THE SENIOR EXECUTIVE SERVICE
" Sec. "3131. The Senior Executive Service. "3132. Definitions and exclusions. "3133. Authorization of positions; authority for appointment. "3134. Limitations on noncareer and limited appointments. "3135. Biennial report. "3136. Regulations.".
EXAMINATION, CERTIFICATION, AND APPOINTMENT
Sec. 403. (a) Chapter 33 of title 5, United States Code, is amended by adding at the end thereof the following new subchapter:
" SUBCHAPTER VIII-- APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE
SENIOR EXECUTIVE SERVICE
"Section 3391. Definitions
" For the purpose of this subchapter, 'agency', ' Senior Executive Service position', 'senior executive', 'career appointee', 'limited term appointee', 'limited emergency appointee', 'noncareer appointee', and 'general position' have the meanings set forth in section 3132(a) of this title.
"Section 3392. General appointment provisions
"(a) Qualification standards shall be established by the head of each agency for each Senior Executive Service position in the agency--,
"(1) in accordance with requirements established by the Office of Personnel Management, with respect to standards for career reserved positions, and
"(2) after consultation with the Office, with respect to standards for general positions.
"(b) Not more than 30 percent of the Senior Executive Service positions authorized under section 3133 of this title may at any time be filled by individuals who did not have 5 years of current continuous service in the civil service immediately preceding their initial appointment to the Senior Executive Service, unless the President certifies to the Congress that the limitation would hinder the efficiency of the Government. In applying the preceding sentence, any break in service of 3 days or less shall be disregarded.
"(c) If a career appointee is appointed by the President, by and with the advice and consent of the Senate, to a civilian position in the executive branch which is not in the Senior Executive Service, and the rate of basic pay payable for which is equal to or greater than the rate payable for level V of the Executive Schedule, the career appointee may elect (at such time and in such manner as the Office may prescribe) to continue to have the provisions of this title relating to basic pay, performance awards, awarding of ranks, severance pay, leave, and retirement apply as if the career appointee remained in the Senior Executive Service position from which he was appointed. Such provisions shall apply in lieu of the provisions which would otherwise apply--,
"(1) to the extent provided under regulations prescribed by the Office, and
"(2) so long as the appointee continues to serve under such Presidential appointment.
"(d) Appointment or removal of a person to or from any Senior Executive Service position in an independent regulatory commission shall not be subject, directly or indirectly, to review or approval by any officer or entity within the Executive Office of the President.
" Section 3393. Career appointments
"(a) Each agency shall establish a recruitment program, in accordance with guidelines which shall be issued by the Office of Personnel Management, which provides for recruitment of career appointees from--,
"(1) all groups of qualified individuals within the civil service; or
"(2) all groups of qualified individuals whether or not within the civil service.
"(b) Each agency shall establish one or more executive resources boards, as appropriate, the members of which shall be appointed by the head of the agency from among employees of the agency. The boards shall, in accordance with merit staffing requirements established by the Office, conduct the merit staffing process for career appointees, including--,
"(1) reviewing the executive qualifications of each candidate for a position to be filled by a career appointee; and
"(2) making written recommendations to the appropriate appointing authority concerning such candidates.
"(c)(1) The Office shall establish one or more qualifications review boards, as appropriate. It is the function of the boards to certify the executive qualifications of candidates for initial appointment as career appointees in accordance with regulations prescribed by the Office. Of the members of each board more than one-half shall be appointed from among career appointees. Appointments to such boards shall be made on a non-partisan basis, the sole selection criterion being the professional knowledge of public management and knowledge of the appropriate occupational fields of the intended appointee.
"(2) The Office shall, in consultation with the various qualification review boards, prescribe criteria for establishing executive qualifications for appointment of career appointees. The criteria shall provide for--,
"(A) consideration of demonstrated executive experience;
"(B) consideration of successful participation in a career executive development program which is approved by the Office; and
"(C) sufficient flexibility to allow for the appointment of individuals who have special or unique qualities which indicate a likelihood of executive success and who would not otherwise be eligible for appointment.
"(d) An individual's initial appointment as a career appointee shall become final only after the individual has served a 1-year probationary period as a career appointee.
"(e) Each career appointee shall meet the executive qualifications of the position to which appointed, as determined in writing by the appointing authority.
"(f) The title of each career reserved position shall be published in the Federal Register.
" Section 3394. Noncareer and limited appointments
"(a) Each noncareer appointee, limited term appointee, and limited emergency appointee shall meet the qualifications of the position to which appointed, as determined in writing by the appointing authority.
"(b) An individual may not be appointed as a limited term appointee or as a limited emergency appointee without the prior approval of the exercise of such appointing authority by the Office of Personnel Management.
" Section 3395. Reassignment and transfer within the Senior Executive Service
"(a)(1) A career appointee in an agency--,
"(A) may, subject to paragraph (2) of this subsection, be reassigned to any Senior Executive Service position in the same agency for which the appointee is qualified; and
"(B) may transfer to a Senior Executive Service position in another agency for which the appointee is qualified, with the approval of the agency to which the appointee transfers.
"(2) A career appointee may be reassigned to any Senior Executive Service position only if the career appointee receives a written notice of the reassignment at least 15 days in advance of such reassignment.
"(b)(1) Notwithstanding section 3394(b) of this title, a limited emergency appointee may be reassigned to another Senior Executive Service position in the same agency established to meet a bona fide, unanticipated, urgent need, except that the appointee may not serve in one or more positions in such agency under such appointment in excess of 18 months.
"(2) Notwithstanding section 3394(b) of this title, a limited term appointee may be reassigned to another Senior Executive Service position in the same agency the duties of which will expire at the end of a term of 3 years or less, except that the appointee may not serve in one or more positions in the agency under such appointment in excess of 3 years.
"(c) A limited term appointee or a limited emergency appointee may not be appointed to, or continue to hold, a position under such an appointment if, within the preceding 48 months, the individual has served more than 36 months, in the aggregate, under any combination of such types of appointment.
"(d) A noncareer appointee in an agency--,
"(1) may be reassigned to any general position in the agency for which the appointee is qualified; and
"(2) may transfer to a general position in another agency with the approval of the agency to which the appointee transfers.
"(e)(1) Except as provided in paragraph (2) of this subsection, a career appointee in an agency may not be involuntarily reassigned--,
"(A) within 120 days after an appointment of the head of the agency; or
"(B) within 120 days after the appointment in the agency of the career appointee's most immediate supervisor who--,
"(i) is a noncareer appointee; and
"(ii) has the authority to reassign the career appointee.
"(2) Paragraph (1) of this subsection does not apply with respect to--,
"(A) any reassignment under section 4314(b)(3) of this title; or
"(B) any disciplinary action initiated before an appointment referred to in paragraph (1) of this subsection.
" Section 3396. Development for and within the Senior Executive Service
"(a) The Office of Personnel Management shall establish programs for the systematic development of candidates for the Senior Executive Service and for the continuing development of senior executives, or require agencies to establish such programs which meet criteria prescribed by the Office.
"(b) The Office shall assist agencies in the establishment of programs required under subsection (a) of this section and shall monitor the implementation of the programs. If the Office finds that any agency's program under subsection (a) of this section is not in compliance with the criteria prescribed under such subsection, it shall require the agency to take such corrective action as may be necessary to bring the program into compliance with the criteria.
"(c)(1) The head of an agency may grant a sabbatical to any career appointee for not to exceed 11 months in order to permit the appointee to engage in study or uncompensated work experience which will contribute to the appointee's development and effectiveness. A sabbatical shall not result in loss of, or reduction in, pay, leave to which the career appointee is otherwise entitled, credit for time or service, or performance or efficiency rating. The head of the agency may authorize in accordance with chapter 57 of this title such travel expenses (including per diem allowances) as the head of the agency may determine to be essential for the study or experience.
"(2) A sabbatical under this subsection may not be granted to any career appointee--,
"(A) more than once in any 10-year period;
"(B) unless the appointee has completed 7 years of service--,
"(i) in one or more positions in the Senior Executive Service;
"(ii) in one or more other positions in the civil service the level of duties and responsibilities of which are equivalent to the level of duties and responsibilities of positions in the Senior Executive Service; or
"(iii) in any combination of such positions, except that not less than 2 years of such 7 years of service must be in the Senior Executive Service; and
"(C) if the appointee is eligible for voluntary retirement with a right to an immediate annuity under section 8336 of this title.
Any period of assignment under section 3373 of this title, relating to
assignments of employees to State and local governments, shall not be
considered a period of service for the purpose of subparagraph (B) of
this paragraph.
"(3)(A) Any career appointee in an agency may be granted a sabbatical under this subsection only if the appointee agrees, as a condition of accepting the sabbatical, to serve in the civil service upon the completion of the sabbatical for a period of 2 consecutive years.
"(B) Each agreement required under subparagraph (A) of this paragraph shall provide that in the event the career appointee fails to carry out the agreement (except for good and sufficient reason as determined by the head of the agency who granted the sabbatical) the appointee shall be liable to the United States for payment of all expenses (including salary) of the sabbatical. The amount shall be treated as a debt due the United States.
"(d) The Office shall encourage and assist individuals to improve their skills and increase their contribution by service in a variety of agencies as well as by accepting temporary placements in State or local governments or in the private sector.
" Section 3397. Regulations
" The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.".
(b) The analysis for chapter 33 of title 5, United States Code, is amended by inserting after the item relating to section 3385 the following:
"SUBCHAPTER VIII-- APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT IN THE
SENIOR EXECUTIVE SERVICE
" Sec. "3391. Definitions. "3392. General appointment provisions. "3393. Career appointments. "3394. Noncareer and limited appointments. "3395. Reassignment and transfer within the Senior Executive Service. "3396. Development for and within the Senior Executive Service. "3397. Regulations.".
RETENTION PREFERENCE
Sec. 404. (a) Section 3501(b) of title 5, United States Code, is amended by striking out the period at the end thereof and inserting in lieu thereof: "or to a member of the Senior Executive Service.".
(b) Chapter 35 of title 5, United States Code, is amended by adding at the end thereof the following new subchapter:
" SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE SENIOR
EXECUTIVE SERVICE
"Section 3591. Definitions
" For the purpose of this subchapter, 'agency', ' Senior Executive Service position', 'senior executive', 'career appointee', 'limited term appointee', 'limited emergency appointee', 'noncareer appointee', and 'general position' have the meanings set forth in section 3132(a) of this title.
"Section 3592. Removal from the Senior Executive Service
"(a) Except as provided in subsection (b) of this section, a career appointee may be removed from the Senior Executive Service to a civil service position outside of the Senior Executive Service--,
"(1) during the 1-year period of probation under section 3393 (d) of this title, or
"(2) at any time for less than fully successful executive performance as determined under subchapter II of chapter 43 of this title,
except that in the case of a removal under paragraph (2) of this subsection the career appointee shall, at least 15 days before the removal, be entitled, upon request, to an informal hearing before an official designated by the Merit Systems Protection Board at which the career appointee may appear and present arguments, but such hearing shall notgive the career appointee the right to initiate an action with the Board under section 7701 of this title, nor need the removal action be delayed as a result of the granting of such hearing.
"(b)(1) Except as provided in paragraph (2) of this subsection, a career appointee in an agency may not be involuntarily removed--,
"(A) within 120 days after an appointment of the head of the agency; or
"(B) within 120 days after the appointment in the agency of the career appointee's most immediate supervisor who--,
"(i) is a noncareer appointee; and
"(ii) has the authority to remove the career appointee.
"(2) Paragraph (1) of this subsection does not apply with respect to--,
"(A) any removal under section 4314(b)(3) of this title; or
"(B) any disciplinary action initiated before an appointment referred to in paragraph (1) of this subsection.
"(c) A limited emergency appointee, limited term appointee, or noncareer appointee may be removed from the service at any time.
" Section 3593. Reinstatement in the Senior Executive Service
"(a) A former career appointee may be reinstated, without regard to section 3393(b) and (c) of this title, to any Senior Executive Service position for which the appointee is qualified if--,
"(1) the appointee has successfully completed the probationary period established under section 3393(d) of this title; and
"(2) the appointee left the Senior Executive Service for reasons other than misconduct, neglect of duty, malfeasance, or less than fully successful executive performance as determined under subchapter II of chapter 43 of this title.
"(b) A career appointee who is appointed by the President to any civil service position outside the Senior Executive Service and who leaves the position for reasons other than misconduct, neglect of duty, or malfeasance shall be entitled to be placed in the Senior Executive Service if the appointee applies to the Office of Personnel Management within 90 days after separation from the Presidential appointment.
" Section 3594. Guaranteed placement in other personnel systems
"(a) A career appointee who was appointed from a civil service position held under a career or career-conditional appointment (or an appointment of equivalent tenure, as determined by the Office of Personnel Management) and who, for reasons other than misconduct, neglect of duty, or malfeasance, is removed from the Senior Executive Service during the probationary period under section 3393(d) of this title, shall be entitled to be placed in a civil service position (other than a Senior Executive Service position) in any agency.
"(b) A career appointee--,
"(1) who has completed the probationary period under section 3393(d) of this title; and
"(2) who is removed from the Senior Executive Service for less than fully successful executive performance as determined under subchapter II of chapter 43 of this title;
shall be entitled to be placed in a civil service position (other than a Senior Executive Service position) in any agency.
"(c)(1) For purposes of subsections (a) and (b) of this section--,
"(A) the position in which any career appointee is placed under such subsections shall be a continuing position at GS-15 or above of the General Schedule,
or an equivalent position, and, in the case of a career appointee referred to in subsection (a) of this section, the career appointee shall be entitled to an appointment of a tenure equivalent to the tenure of the appointment held in the position from which the career appointee was appointed;
"(B) any career appointee placed under subsection (a) or (b) of this section shall be entitled to receive basic pay at the highest of--,
"(i) the rate of basic pay in effect for the position in which placed;
"(ii) the rate of basic pay in effect at the time of the placement for the position the career appointee held in the civil service immediately before being appointed to the Senior Executive Service; or
"(iii) the rate of basic pay in effect for the career appointee immediately before being placed under subsection (a) or (b) of this section; and
"(C) the placement of any career appointee under subsection (a) or (b) of this section may not be made to a position which would cause the separation or reduction in grade of any other employee.
"(2) An employee who is receiving basic pay under paragraph (1) (B) (ii) or (iii) of this subsection is entitled to have the basic pay rate of the employee increased by 50 percent of the amount of each increase in the maximum rate of basic pay for the grade of the position in which the employee is placed under subsection (a) or (b) of this section until the rate is equal to the rate in effect under paragraph (1) (B) (i) of this subsection for the position in which the employee is placed.
" Section 3595. Regulations
" The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.".
(c) The chapter analysis for chapter 35 of title 5, United States Code, is amended by inserting the following new item:
"SUBCHAPTER V--REMOVAL, REINSTATEMENT, AND GUARANTEED PLACEMENT IN THE SENIOR
EXECUTIVE SERVICE
" Sec. "3591. Definitions. "3592. Removal from the Senior Executive Service. "3593. Reinstatement in the Senior Executive Service. "3594. Guaranteed placement in other personnel systems. "3595. Regulations.".
PERFORMANCE RATING
Sec. 405. (a) Chapter 43 of title 5, United States Code, is amended by adding at the end thereof the following:
" SUBCHAPTER II-- PERFORMANCE APPRAISAL IN THE SENIOR EXECUTIVE SERVICE
"Section 4311. Definitions
" For the purpose of this subchapter, 'agency', 'senior executive', and 'career appointee' have the meanings set forth in section 3132(a) of this title.
"Section 4312. Senior Executive Service performance appraisal systems
"(a) Each agency shall, in accordance with standards established by the Office of Personnel Management, develop one or more performance appraisal systems designed to--,
"(1) permit the accurate evaluation of performance in any position on the basis of criteria which are related to the position and which specify the critical elements of the position;
"(2) provide for systematic appraisals of performance of senior executives;
"(3) encourage excellence in performance by senior executives; and
"(4) provide a basis for making eligibility determinations for retention in the Senior Executive Service and for Senior Executive Service performance awards.
"(b) Each performance appraisal system established by an agency under subsection (a) of this section shall provide--,
"(1) that, on or before the beginning of each rating period, performance requirements for each senior executive in the agency are established in consultation with the senior executive and communicated to the senior executive;
"(2) that written appraisals of performance are based on the individual and organizational performance requirements established for the rating period involved; and
"(3) that each senior executive in the agency is provided a copy of the appraisal and rating under section 4314 of this title and is given an opportunity to respond in writing and have the rating reviewed by an employee in a higher executive level in the agency before the rating becomes final.
"(c)(1) The Office shall review each agency's performance appraisal system under this section, and determine whether the agency performance appraisal system meets the requirements of this subchapter.
"(2) The Comptroller General shall from time to time review performance appraisal systems under this section to determine the extent to which any such system meets the requirements under this subchapter and shall periodically report its findings to the Office and to each House of the Congress.
"(3) If the Office determines that an agency performance appraisal system does not meet the requirements under this subchapter (including regulations prescribed under section 4315), the agency shall take such corrective action as may be required by the Office.
"(d) A senior executive may not appeal any appraisal and rating under any performance appraisal system under this section.
" Section 4313. Criteria for performance appraisals
" Appraisals of performance in the Senior Executive Service shall be based on both individual and organizational performance, taking into account such factors as--,
"(1) improvements in efficiency, productivity, and quality of work or service, including any significant reduction in paperwork;
"(2) cost efficiency;
"(3) timeliness of performance;
"(4) other indications of the effectiveness, productivity, and performance quality of the employees for whom the senior executive is responsible; and
"(5) meeting affirmative action goals and achievement of equal employment opportunity requirements.
" Section 4314. Ratings for performance appraisals
"(a) Each performance appraisal system shall provide for annual summary ratings of levels of performance as follows:
"(1) one or more fully successful levels,
"(2) a minimally satisfactory level, and
"(3) an unsatisfactory level.
"(b) Each performance appraisal system shall provide that--,
"(1) any appraisal and any rating under such system--,
"(A) are made only after review and evaluation by a performance review board established under subsection (c) of this section;
"(B) are conducted at least annually, subject to the limitation of subsection (c)(3) of this section;
"(C) in the case of a career appointee, may not be made within 120 days after the beginning of a new Presidential administration; and
"(D) are based on performance during a performance appraisal period the duration of which shall be determined under guidelines established by the Office of Personnel Management, but which may be terminated in any case in which the agency making an appraisal determines that an adequate basis exists on which to appraise and rate the senior executive's performance;
"(2) any career appointee receiving a rating at any of the fully successful levels under subsection (a)(1) of this section may be given a performance award under section 5384 of this title;
"(3) any senior executive receiving an unsatisfactory rating under subsection (a)(3) of this section shall be reassigned or transferred within the Senior Executive Service, or removed from the Senior Executive Service, but any senior executive who receives 2 unsatisfactory ratings in any period of 5 consecutive years shall be removed from the Senior Executive Service; and
"(4) any senior executive who twice in any period of 3 consecutive years receives less than fully successful ratings shall be removed from the Senior Executive Service.
"(c)(1) Each agency shall establish, in accordance with regulations prescribed by the Office, one or more performance review boards, as appropriate. It is the function of the boards to make recommendations to the appropriate appointing authority of the agency relating to the performance of senior executives in the agency.
"(2) The supervising official of the senior executive shall provide to the performance review board, an initial appraisal of the senior executive's performance. Before making any recommendation with respect to the senior executive, the board shall review any response by the senior executive to the initial appraisal and conduct such further review as the board finds necessary.
"(3) Performance appraisals under this subchapter with respect to any senior executive shall be made by the appointing authority only after considering the recommendations by the performance review board with respect to such senior executive under paragraph (1) of this subsection.
"(4) Members of performance review boards shall be appointed in such a manner as to assure consistency, stability, and objectivity in performance appraisal. Notice of the appointment of an individual to serve as a member shall be published in the Federal Register.
"(5) In the case of an appraisal of a career appointee, more than one-half of the members of the performance review board shall consist of career appointees. The requirement of the preceding sentence shall not apply in any case in which the Office determines that there exists an insufficient number of career appointees available to comply with the requirement.
"(d) The Office shall include in each report submitted to each House of the Congress under section 3135 of this title a report of--,
"(1) the performance of any performance review board established under this section,
"(2) the number of individuals removed from the Senior Executive Service under subchapter V of chapter 35 of this title for less than fully successful executive performance, and
"(3) the number of performance awards under section 5384 of this title.
" Section 4315. Regulations
" The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.".
(b) The analysis for chapter 43 of title 5, United States Code, is amended by inserting at the end thereof the following:
"SUBCHAPTER II-- PERFORMANCE APPRAISAL IN THE SENIOR EXECUTIVE SERVICE
" Sec. "4311. Definitions. "4312. Senior Executive Service performance appraisal systems. "4313. Criteria for performance appraisals. "4314. Ratings for performance appraisals. "4315. Regulations.".
AWARDING OF RANKS
Sec. 406. (a) Chapter 45 of title 5, United States Code, is amended by adding at the end thereof the following new section:
" Section 4507. Awarding of ranks in the Senior Executive Service
"(a) For the purpose of this section, 'agency', 'senior executive', and 'career appointee' have the meanings set forth in section 3132(a) of this title.
"(b) Each agency shall submit annually to the Office recommendations of career appointees in the agency to be awarded the rank of Meritorious Executive or Distinguished Executive. The recommendations may take into account the individual's performance over a period of years. The Office shall review such recommendations and provide to the President recommendations as to which of the agency recommended appointees should receive such rank.
"(c) During any fiscal year, the President may, subject to subsection (d) of this section, award to any career appointee recommended by the Office the rank of--,
"(1) Meritorious Executive, for sustained accomplishment, or
"(2) Distinguished Executive, for sustained extraordinary accomplishment.
A career appointee awarded a rank under paragraph (1) or (2) of this subsection shall not be entitled to be awarded that rank during the following 4 fiscal years.
"(d) During any fiscal year--,
"(1) the number of career appointees awarded the rank of Meritorious Executive may not exceed 5 percent of the Senior Executive Service; and
"(2) the number of career appointees awarded the rank of Distinguished Executive may not exceed 1 percent of the Senior Executive Service.
"(e) (1) Receipt by a career appointee of the rank of Meritorious Executive entitles such individual to a lump-sum payment of $10,000, which shall be in addition to the basic pay paid under section 5382 of this title or any award paid under section 5384 of this title.
"(2) Receipt by a career appointee of the rank of Distinguished Executive entitles the individual to a lump-sum payment of $20,000, which shall be in addition to the basic pay paid under section 5382 of this title or any award paid under section 5384 of this title.".
(b) The analysis for chapter 45 of title 5, United States Code, is amended by adding at the end thereof the following new item: "4507. Awarding of Ranks in the Senior Executive Service.".
PAY RATES AND SYSTEMS
Sec. 407. (a) Chapter 53 of title 5, United States Code, is amended by adding at the end thereof the following new subchapter:
" SUBCHAPTER VIII-- PAY FOR THE SENIOR EXECUTIVE SERVICE
"sec. 5381. Definitions
" For the purpose of this subchapter, 'agency', ' Senior Executive Service position', and 'senior executive' have the meanings set forth in section 3132(a) of this title.
"Sec. 5382. Establishment and adjustment of rates of pay for the Senior Executive Service
"(a) There shall be 5 or more rates of basic pay for the Senior Executive Service, and each senior executive shall be paid at one of the rates. The rates of basic pay shall be initially established and there-after adjusted by the President subject to subsection (b) of this section.
"(b) In setting rates of basic pay, the lowest rate for the Senior Executive Service shall not be less than the minimum rate of basic pay payable for GS-- 16 of the General Schedule and the highest rate shall not exceed the rate for level IV of the Executive Schedule. The payment of the rates shall not be subject to the pay limitation of section 5308 or 5373 of this title.
"(c) Subject to subsection (b) of this section, effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect under section 5305 of this title in the rates of pay under the General Schedule, each rate of basic pay for the Senior Executive Service shall be adjusted by an amount determined by the President to be appropriate. The adjusted rates of basic pay for the Senior Executive Service shall be included in the report transmitted to the Congress by the President under section 5305 (a)(3) or (c)(1) of this title.
"(d) The rates of basic pay tht are established and adjusted under this section shall be printed in the Federal Register and shall supersede any prior rates of basic pay for the Senior Executive Service.
" Sec. 5383. Setting individual senior executive pay
"(a) Each appointing authority shall determine, in accordance with criteria established by the Office of Personnel Management, which of the rates established under section 5382 of this title shall be paid to each senior executive under such appointing authority.
"(b) In no event may the aggregate amount paid to a senior executive during any fiscal year under sections 4507, 5382, and 5384 of this title exceed the annual rate payable for positions at level I of the Executive Schedule in effect at the end of such fiscal year.
"(c) Except for any pay adjustment under section 5382 of this title, the rate of basic pay for any senior executive may not be adjusted more than once during any 12-month period.
"(d) The rate of basic pay for any career appointee may be reduced from any rate of basic pay to any lower rate of basic pay only if the career appointee receives a written notice of the reduction at least 15 days in advance of the reduction.
" Sec. 5384. Performance awards in the Senior Executive Service
"(a)(1) To encourage excellence in performance by career appointees, performance awards shall be paid to career appointees in accordance with the provisions of this section.
"(2) Such awards shall be paid in a lump sum and shall be in addition to the basic pay paid under section 5382 of this title or any award paid under section 4507 of this title.
"(b)(1) No performance award under this section shall be paid to any career appointee whose performance was determined to be less than fully successful at the time of the appointee's most recent performance appraisal and rating under subchapter II of chapter 43 of this title.
"(2) The amount of a performance award under this section shall be determined by the agency head but may not exceed 20 percent of the career appointee's rate of basic pay.
"(3) The number of career appointees in any agency paid performance awards under this section during any fiscal year may not exceed 50 percent of the number of Senior Executive Service positions in such agency. This paragraph shall not apply in the case of any agency which has less than 4 Senior Executive Service positions.
"(c) Performance awards paid by any agency under this section shall be based on recommendations by performance review boards established by such agency under section 4314 of this title.
"(d) The Office of Personnel Management may issue guidance to agencies concerning the proportion of Senior Executive Service salary expenses that may be appropriately applied to payment of performance awards and the distribution of awards.
" Sec. 5385. Regulations
" The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.".
(b) The analysis of chapter 53 of title 5, United States Code, is amended by adding at the end thereof the following new items:
"SUBCHAPTER VIII-- PAY FOR THE SENIOR EXECUTIVE SERVICE
" Sec. "5381. Definitions. "5382. Establishment and adjustment of rates of pay for the Senior Executive Service. "5383. Setting individual senior executive pay. "5384. Performance awards in the Senior Executive Service. "5385. Regulations.".
Sec. 408. (a) Chapter 55 of the title 5, United States Code, is amended--,
(1) by inserting "other than an employee or individual excluded by section 5541(2) (xvi) of this section"
immediately before the period at the end of section 5504(a)(B);
(2) by amending section 5541(2) by striking out "or" after clause (xiv), by striking out the period after clause (xv) and inserting"; or" in lieu thereof, and by adding the following clause at the end thereof:
"(xvi) member of the Senior Executive Service."; and
(3) by inserting "other than a member of the Senior Executive Service" after "employee" in section 5595(a)(2)(i).
(b)(1) Section 5311 of title 5, United States Code, is amended by inserting", other than Senior Executive Service positions", after "positions".
(2) Section 5331(b) of title 5, United States Code, is amended by inserting", other than Senior Executive Service positions", after "positions".
TRAVEL, TRANSPORTATION, AND SUBSISTENCE
Sec. 409. (a) Section 5723(a)(1) of title 5, United States Code, is amended by striking out"; and" and inserting in lieu thereof "or of a new appointee to the Senior Executive Service; and".
(b) Subchapter IV of chapter 57 of title 5, United States Code, is amended by adding at the end thereof the following new section:
"Sec. 5752. Travel expenses of Senior Executive Service candidates
" Employing agencies may pay candidates for Senior Executive Service positions travel expenses incurred incident to preemployment interviews requested by the employing agency.".
(c) The analysis for chapter 57 of title 5, United States Code, is amended by inserting after the item relating to section 5751 the following new item: "5752. Travel expenses of Senior Executive Service candidates.".
LEAVE
Sec. 410. Section 6304 of title 5, United States Code, is amended--,
(1) in subsection (a), by striking out "and (e)" and inserting in lieu thereof "(e), and (f);, and
(2) by adding at the end thereof the following new subsection:
"(f) Annual leave accured by an individual while serving in a position in the Senior Executive Service shall not be subject to the limitation on accumulation otherwise imposed by this section.".
DISCIPLINARY ACTIONS
Sec. 411. Chapter 75 of title 5, United States Code, is amended--,
(1) by inserting the following in the chapter analysis after subchapter IV:
" SUBCHAPTER V--SENIOR EXECUTIVE SERVICE
" Sec. "7541. Definitions. "7542. Actions covered. "7543. Cause and procedure."; and
(2) by adding the following after subchapter IV:
" SUBCHAPTER V--SENIOR EXECUTIVE SERVICE
"Sec. 7541. Definitions
" For the purpose of this subchapter--, "(1) 'employee' means a career appointee in the Senior Executive Service who--,
"(A) has completed the probationary period prescribed under section 3393(d) of this title; or
"(B) was covered by the provisions of subchapter II of this chapter immediately before appointment to the Senior Executive Service; and
"(2) 'suspension' has the meaning set forth in section 7501(2)
of this title.
" Sec 7542 Actions covered
" This subchapter applies to a removal from the civil service or suspension for more than 14 days, but does not apply to an action initiated under section 1206 of this title, to a suspension or removal under section 7532 of this title, or to a removal under section 3592 of this title.
" Sec. 7543 Cause and procedure
"(a) Under regulations prescribed by the Office of Personnel Management, an agency may take an action covered by this subchapter against an employee only for such cause as will promote the efficiency of the service.
"(b) An employee against whom an action covered by this sub-chapter is proposed is entitled to--,
"(1) at least 30 days' advance written notice, unless there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment can be imposed, stating specific reasons for the proposed action;
"(2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
"(3) be represented by an attorney or other representative; and "(4) a written decision and specific reasons therefor at the earliest practicable date.
"(c) An agency may provide, by regulation, for a hearing which may be in lieu of or in addition to the opportunity to answer provided under subsection (b)(2) of this section.
"(d) An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.
"(e) Copies of the notice of proposed action, the answer of the employee when written, and a summary thereof when made orally, the notice of decision and reasons therefor, and any order effecting an action covered by this subchapter, together with any supporting material, shall be maintained by the agency and shall be furnished to the Merit Systems Protection Board upon its request and to the employee affected upon the employee's request.".
RETIREMENT
Sec. 412. (a) Section 8336 of title 5, United States Code, is amended by redesignating subsection (h) as subsection (i) and inserting immediately after subsection (g) the following new subsection:
"(h) A member of the Senior Executive Service who is removed from the Senior Executive Service for less than fully successful executive performance (as determined under subchapter II of chapter 43 of this title) after completing 25 years of service or after becoming 50 years of age and completing 20 years of service is entitled to an annuity.".
(b) Section 8339(h) of title 5, United States Code, is amended by striking out "section 8336(d)" and inserting in lieu thereof "section 8336(d) or (h)".
CONVERSION TO THE SENIOR EXECUTIVE SERVICE
Sec. 413. (a) For the purpose of this section, "agency", " Senior Executive Service position", "career appointee", "career reserved position", "limited term appointee", "noncareer appointee", and "general position" have the meanings set forth in section 3132(a) of title 5, United States Code (as added by this title), and "Senior Executive Service" has the meaning set forth in section 2101a of such title 5 (as added by this title).
(b)(1) Under the guidance of the Office of Personnel Management, each agency shall--,
(A) designate those positions which it considers should be Senior Executive Service positions and designate which of those position it considers should be career reserved positions; and
(B) submit to the Office a written request for--,
(i) a specific number of Senior Executive Service positions; and
(ii) authority to employ a specific number of noncareer appointees.
(2) The Office of Personnel Management shall review the designations and requests of each agency under paragraph (1) of this sub-section, and shall establish interim authorizations in accordance with sections 3133 and 3134 of title 5, United States Code (as added by this Act), and shall publish the titles of the authorized positions in the Federal Register.
(c)(1) Each employee serving in a position at the time it is designated as a Senior Executive Service position under subsection (b) of this section shall elect to--,
(A) decline conversion and be appointed to a position under such employee's current type of appointment and pay system, retaining the grade, seniority, and other rights and benefits associated with such type of appointment and pay system; or
(B) accept conversion and be appointed to a Senior Executive Service position in accordance with the provisions of subsections (d), (e), (f), (g), and (h) of this section.
The appointment of an employee in an agency because of an election under subparagraph (A) of this paragraph shall not result in the separation or reduction in grade of any other employee in such agency.
(2) Any employee in a position which has been designated a Senior Executive Service position under this section shall be notified in writing of such designation, the election required under paragraph (1) of this subsection, and the provisions of subsections (d), (e), (f), (g), and (h) of this section. The employee shall be given 90 days from the date of such notification to make the election under paragraph (1) of this subsection.
(d) Each employee who has elected to accept conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under--,
(1) a career or career-conditional appointment; or
(2) a similar type of appointment in an excepted service position, as determined by the Office;
in a position which is designated as a Senior Executive Service position shall be appointed as a career appointee to such Senior Executive Service position without regard to section 3393(b)--(e) of title 5, United States Code (as added by this title).
(e) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under an excepted appointment in a position which is not designated a career reserved position in the Senior Executive Service, but is--,
(1) a position in Schedule C of subpart C of part 213 of title 5, Code of Federal Regulations;
(2) a position filled by noncareer executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations; or
(3) a position in the Executive Schedule under subchapter II of chapter 53 of title 5, United States Code,
other than a career Executive Schedule position;
shall be appointed as a noncareer appointee to a Senior Executive Service position.
(f) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of subsection (e) of this section, and whose position is designated as a career reserved position under subsection (b) of this section shall be appointed as a noncareer appointee to an appropriate general position in the Senior Executive Service or shall be separated.
(g) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section, who is serving in a position described in paragraph (1), (2), or (3) of sub-section (e) of this section, and whose position is designated as a Senior Executive Service position and who has reinstatement eligibility to a position in the competitive service, may, on request to the Office, be appointed as a career appointee to a Senior Executive Service position. The name of, and basis for reinstatement eligibility for, each employee appointed as a career appointee under this subsection shall be published in the Federal Register.
(h) Each employee who has elected conversion to a Senior Executive Service position under subsection (c)(1)(B) of this section and who is serving under a limited executive assignment under subpart F of part 305 of title 5, Code of Federal Regulations, shall--,
(1) be appointed as a limited term appointee to a Senior Executive Service position if the position then held by such employee will terminate within 3 years of the date of such appointment;
(2) be appointed as a noncareer appointee to a Senior Executive Service position if the position then held by such employee is designated as a general position; or
(3) be appointed as a noncareer appointee to a general position if the position then held by such employee is designated as a career reserved position.
(i) The rate of basic pay for any employee appointed to a Senior Executive Service position under this section shall be greater than or equal to the rate of basic pay payable for the position held by such employee at the time of such appointment.
(j) Any employee who is aggrieved by any action by any agency under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of title 5, United States Code (as added by this title). An agency shall take any corrective action which the Board orders in its decision on an appeal under this subsection.
(k) The Office shall prescribe regulations to carry out the purpose of this section.
LIMITATIONS ON EXECUTIVE POSITIONS
Sec. 414. (a)(1)(A) The following provisions of section 5108 of title 5, United States Code, relating to special authority to place positions at GS-- 16, 17, and 18 of the General Schedule, are hereby repealed:
(i) paragraphs (2), (4) through (11), and (13) through (16) of subsection (c), and
(ii) subsections (d) through (g).
(B) Notwithstanding any other provision of law (other than section 5108 of such title 5), the authority granted to an agency (as defined in section 5102(a)(1) of such title 5) under any such provision to place one or more positions in GS--16, 17, or 18 of the General Schedule, is hereby terminated.
(C) Subsection (a) of section 5108 of title 5, United States Code, is amended to read as follows:
"(a) The Director of the Office of Personnel Management may establish, and from time to time revise, the maximum numbers of positions (not to exceed an aggregate of 10,777) which may at any one time be placed in--,
"(i) GS--16, 17, and 18; and
"(ii) the Senior Executive Service, in accordance with section 3133 of this title.
A position may be placed in GS--16, 17, or 18, only by action of the Director of the Office of Personnel Management. The authority of the Director under this subsection shall be carried out by the President in the case of positions proposed to be placed in GS--16, 17, and 18 in the Federal Bureau of Investigation.".
(D) Subsection (c) of section 5108 of title 5, United States Code, is amended--,
(i) by redesignating paragraph (3) as paragraph (2) and by inserting "and" at the end thereof; and
(ii) by redesignating paragraph (12) as paragraph (3) and by striking out the semicolon at the end and inserting in lieu thereof a period.
(2)(A) Notwithstanding any other provision of law (other than section 3104 of title 5, United States Code), the authority granted to an agecny (as defined in section 5102(a)(1) of such title 5) to establish scientific or professional positions outside of the General Schedule is hereby terminated.
(B) Section 3104 of title 5, United States Code, is amended by striking out subsections (a) and (b) and inserting in lieu thereof the following:
"(a)(1) The Director of the Office of Personnel Management may establish, and from time to time revise, the maximum number of scientific or professional positions (not to exceed 517) for carrying out research and development functions which require the services of specially qualified personnel which may be established outside of the General Schedule. Any such position may be established only by action of the Director.
"(2) The provisions of paragraph (1) of this subsection shall not apply to any Senior Executive Service position (as defined in section 3132(a) of this title).
"(3) In addition to the number of positions authorized by paragraph (1) of this subsection, the Librarian of Congress may establish, without regard to the second sentence of paragraph (1) of this subsection, not more than 8 scientific or professional positions to carry out the research and development functions of the Library of Congress which require the services of specially qualified personnel.".
(C) Subsection (c) of such section 3104 is amended--,
(i) by striking out "(c)" and inserting in lieu thereof "(b)"; and
(ii) by striking out "to establish and fix the pay of positions under this section and section 5361 of this title" and inserting in lieu thereof "to fix under section 5361 of this title the pay for positions established under this section".
(3)(A) The provisions of paragraphs (1) and (2) of this subsection shall not apply with respect to any position so long as the individual occupying such position on the day before the date of the enactment of this Act continues to occupy such position.
(B) The Director--,
(i) in establishing under section 5108 of title 5, United States Code, the maximum number of positions which may be placed in GS--16, 17, and 18 of the General Schedule, and
(ii) in establishing under section 3104 of such title 5 the maximum number of scientific or professional positions which may be established,
shall take into account positions to which subparagraph (A) of this paragraph applies.
(b)(1) Section 5311 of title 5, United States Code, is amended by inserting "(a)" before " The Executive Schedule," and by adding at the end thereof the following new subsection:
"(b)(1) Not later than 180 days after the date of the enactment of the Civil Serice Reform Act of 1978, the Director shall determine the number and classification of executive level positions in existence in the executive branch on that date of enactment, and shall publish the determination in the Federal Register. Effective beginning on the date of the publication, the number of executive level positions within the executive branch may not exceed the number published under this subsection.
"(2) For the purpose of this subsection, 'executive level position'
means--,
"(A) any office or position in the civil service the rate of pay for which is equal to or greater than the rate of basic pay payable for
positions under section 5316 of this title, or
"(B) any such office or position the rate of pay for which may be fixed by administrative action at a rate equal to or greater than the rate of basic pay payable for positions under section 5316 of this title;
but does not include any Senior Executive Service position, as defined in section 3132(a) of this title.".
(2) The President shall transmit to the Congress by January 1, 1980, a plan for authorizing executive level positions in the executive branch which shall include the maximum number of executive level positions necessary by level and a justification for the positions.
EFFECTIVE DATE; CONGRESSIONAL REVIEW
Sec. 415. (a)(1) The provisions of this title, other than sections 413 and 414(a), shall take effect 9 months after the date of the enactment of this Act.
(2) The provisions of section 413 of this title shall take effect on the date of the enactment of this Act.
(3) The provisions of section 414(a) of this title shall take effect 180 days after the date of the enactment of this Act.
(b)(1) The amendments made by sections 401 through 412 of this title shall continue to have effect unless, during the first period of 60 calendar days of continuous session of the Congress beginning after 5 years after the effective date of such amendments, a concurrent resolution is introduced and adopted by the Congress disapproving the continuation of the Senior Executive Service. Such amendments shall cease to have effect on the first day of the first fiscal year beginning after the date of the adoption of such concurrent resolution.
(2) The continuity of a session is broken only by an adjournment of the Congress sine die, and the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period.
(3) The provisions of subsections (d), (e), (f), (g), (h), (i), (j), and (k) of section 5305 of title 5, United States Code, shall apply with respect to any concurrent resolution referred to in paragraph (1) of this subsection, except that for the purpose of this paragraph the reference in such subsection (e) to 10 calendar days shall be considered a reference to 30 calendar days.
(4) During the 5-year period referred to in paragraph (1) of this subsection, the Director of the Office of Personnel Management shall include in each report required under section 3135 of title 5, United States Code (as added by this title) an evaluation of the effectiveness of the Senior Executve Service and the manner in which such Service is administered.
TITLE V--MERIT PAY
PAY FOR PERFORMANCE
Sec. 501. Part III of title 5, United States Code, is amended by inserting after chapter 53 the following new chapter:
" CHAPTER 54--MERIT PAY AND CASH AWARDS
" Sec. "5401. Purpose. "5402. Merit pay system. "5403. Cash award program. "5404. Report. "5405. Regulations.
"sec. 5401. Purpose
"(a) It is the purpose of this chapter to provide for--,
"(1) a merit pay system which shall--,
"(A) within available funds, recognize and reward quality performance by varying merit pay adjustments;
"(B) use performance appraisals as the basis for determining merit pay adjustments;
"(C) within available funds, provide for training to improve objectivity and fairness in the evaluation of performance; and
"(D) regulate the costs of merit pay by establishing appropriate control techniques; and
"(2) a cash award program which shall provide cash awards for superior accomplishment and special service.
"(b)(1) Except as provided in paragraph (2) of this subsection, this chapter shall apply to any supervisor or management official (as defined in paragraphs (10) and (11) of section 7103 of this title, respectively) who is in a position which is in GS--13, 14, or 15 of the General Schedule described in section 5104 of this title.
"(2)(A) Upon application under subparagraph (C) of this paragraph, the President may, in writing, exclude an agency or any unit of an agency from the application of this chapter if the President considers such exclusion to be required as a result of conditions arising from--,
"(i) the recent establishment of the agency or unit, or the implementation of a new program,
"(ii) an emergency situation, or
"(iii) any other situation or circumstance.
"(B) Any exclusion under this paragraph shall not take effect earlier than 30 calendar days after the President transmits to each House of the Congress a report describing the agency or unit to be excluded and the reasons therefor.
"(C) An application for exclusion under this paragraph of an agency or any unit of an agency shall be filed by the head of the agency with the Office of Personnel Management, and shall set forth reasons why the agency or unit should be excluded from this chapter. The Office shall review the application and reasons, undertake such other review as it considers appropriate to determine whether the agency or unit should be excluded from the coverage of this chapter, and upon completion of its review, recommend to the President whether the agency or unit should be so excluded.
"(D) Any agency or unit which is excluded pursuant to this paragraph shall, insofar as practicable, make a sustained effort to eliminate the conditions on which the exclusion is based.
"(E) The Office shall periodically review any exclusion from coverage and may at any time recommend to the President that an exclusion under this paragraph be revoked. The President may at any time revoke, in writing, any exclusion under this paragraph.
" Sec. 5402. Merit pay system
"(a) In accordance with the purpose set forth in section 5401(a)(1) of this title, the Office of Personnel Management shall establish a merit pay system which shall provide for a range of basic pay for each grade to which the system applies, which range shall be limited by the minimum and maximum rates of basic pay payable for each grade under chapter 53 of this title.
"(b)(1) Under regulations prescribed by the Office, the head of each agency may provide for increases within the range of basic pay for any employee covered by the merit pay system.
"(2) Determinations to provide pay increases under this sub-section--,
"(A) may take into account individual performance and organizational accomplishment, and
"(B) shall be based on factos such as--,
"(i) any improvement in efficiency, productivity, and quality of work or service, including any significant reduction in paperwork;
"(ii) cost efficiency;
"(iii) timeliness of performance; and
"(iv) other indications of the effectiveness, productivity, and quality of performance of the employees for whom the employee is responsible;
"(C) shall be subject to review only in accordance with and to the extent provided by procedures established by the head of the agency; and
(D) shall be made in accordance with regulations issued by the Office which relate to the distribution of increases authorized under this subsection.
"(3) For any fiscal year, the head of any agency may exercise authority under paragraph (1) of this subsection only to the extent of the funds available for the purpose of this subsection.
"(4) The funds available for the purpose of this subsection to the head of any agency for any fiscal year shall be determined before the beginning of the fiscal year by the Office on the basis of the amount estimated by the Office to be necessary to reflect--,
"(A) within-grade step increases and quality step increases which would have been paid under subchapter III of chapter 53 of this title
during the fiscal year to the employees of the agency covered by the merit pay system if the employees were not so covered; and
"(B) adjustments under section 5305 of this title
which would have been paid under such subchapter during the fiscal year to such employees if the employees were not so covered, less an amount reflecting the adjustment under subsection (c)(1) of this section in rates of basic pay payable to the employees for the fiscal year.
"(c)(1) Effective at the beginning of the first applicable pay period commencing on or after the first day of the month in which an adjustment takes effect uner section 5305 of this title, the rate of basic pay for any position under this chapter shall be adjusted by an amount equal to the greater of--,
"(A) one-half of the percentage of the adjustment in the annual rate of pay which corresponds to the percentage generally applicable to positions not covered by the merit pay system in the same grade as the position; or
"(B) such greater amount of such percentage of such adjustment in the annual rate of pay as may be determined by the Office.
"(2) Any employee whose position is brought under the merit pay system shall, so long as the employee continues to occupy the position, be entitled to receive basic pay at a rate of basic pay not less than the rate the employee was receiving when the position was brought under the merit pay system, plus any subsequent adjustment under paragraph (1) of this subsection.
"(3) No employee to whom this chapter applies may be paid less than the minimum rate of basic pay of the grade of the employee's position.
"(d) Under regulations prescribed by the Office, the benefit of advancement through the range of basic pay for a grade shall be preserved for any employee covered by the merit pay system whose continuous service is interrupted in the public interest by service with the armed forces, or by service in essential non-Government civilian employment during a period of war or national emergency.
"(e) For the purpose of section 5941 of this title rates of basic pay of employees covered by the merit pay system shall be considered rates of basic pay fixed by statute.
" Sec. 5403. Cash award program
"(a) The head of any agency may pay a cash award to, and incur necessary expenses for the honorary recognition of, any employee covered by the merit pay system who--,
"(1) by the employee's suggestion, invention, superior accomplishment, or other personal effort, contributes to the efficiency, economy, or other improvement of Government operations or achieves a significant reduction in paperwork; or
"(2) performs a special act or service in the public interest in connection with or related to the employee's Federal employment.
"(b) The President may pay a cash award to, and incur necessary expenses for the honorary recognition of, any employee covered by the merit pay system who--,
"(1) by the employee's suggestion, invention, superior accomplishment, or other personal effort, contributes to the efficiency, economy, or other improvement of Government operations or achieves a significant reduction in paperwork; or
"(2) performs an exceptionally meritorious special act or service in the public interest in connection with or related to the employee's Federal employment.
A Presidential cash award may be in addition to an agency cash award under subsection (a) of this section.
"(c) A cash award to any employee under this section is in addition to the basic pay of the employee under section 5402 of this title. Acceptance of a cash award under this section constitutes an agreement that the use by the Government of any idea, method, or device for which the award is made does not form the basis of any claim of any nature against the Government by the employee accepting the award, or the employee's heirs or assigns.
"(d) A cash award to, and expenses for the honorary recognition of, any employee covered by the merit pay system may be paid from the fund or appropriation available to the activity primarily benefiting, or the various activities benefiting, from the suggestion, invention, superior accomplishment, or other meritorious effort of the employee. The head of the agency concerned shall determine the amount to be contributed by each activity to any agency cash award under subsection (a) of this section. The President shall determine the amount to be contributed by each activity to a Presidential award under subsection (b) of this section.
"(e)(1) Except as provided in paragraph (2) of this subsection, a cash award under this section may not exceed $10,000.
"(2) If the head of an agency certifies to the Office of Personnel Management that the suggestion, invention, superior accomplishment, or other meritorious effort of an employee for which a cash award is proposed is highly exceptional and unusually outstanding, a cash award in excess of $10,000 but not in excess of $25,000 may be awarded to the employee on the approval of the Office.
"(f) The President or the head of an agency may pay a cash award under this section notwithstanding the death or separation from the service of an employee, if the suggestion, invention, superior accomplishment, or other meritorious effort of the employee for which the award is proposed was made or performed while the employee was covered by the merit pay system.
" Sec. 5404. Report
" The Office of Personnel Management shall include in each annual report required by section 1308(a) of this title a report on the operation of the merit pay system and the cash award program established under this chapter. The report shall include--,
"(1) an analysis of the cost and effectiveness of the merit pay system and the cash award program; and
"(2) a statement of the agencies and units excluded from the coverage of this chapter under section 5401(b)(2) of this title, the reasons for which each exclusion was made, and whether the exclusion continues to be warranted.
" Sec. 5405. Regulations
" The Office of Personnel Management shall prescribe regulations to carry out the purpose of this chapter.".
INCENTIVE AWARDS AMENDMENTS
Sec. 502. (a) Section 4503(1) of title 5, United States Code, is amended by inserting after "operations" the following: "or achieves a significant reduction in paperwork".
(b) Section 4504(1) of title 5, United States Code, is amended by inserting after "operations" the following: "or achieves a significant reduction in paperwork".
TECHNICAL AND CONFORMING AMENDMENTS
Sec. 503. (a) Section 4501(2)(A) of title 5, United States Code, is amended by striking out"; and" and inserting in lieu thereof ",but does not include an employee covered by the merit pay system established under section 5402 of this title; and".
(b) Section 4502(a) of title 5, United States Code, is amended by striking out "$5,000" and inserting in lieu thereof "$10,000".
(c) Section 4502(b) of title 5, United States Code, is amended--,
(1) by striking out "Civil Service Commission" and inserting in lieu thereof "Office of Personnel Management";
(2) by striking out "$5,000" and inserting in lieu thereof "$10,000"; and
(3) by striking out "the Commission" and inserting in lieu thereof "the Office".
(d) Section 4506 of title 5, United States Code, is amended by striking out "Civil Service Commission may" and inserting in lieu thereof "Office of Personnel Management shall".
(e) The second sentence of section 5332(a) of title 5, United States Code, is amended by inserting after "applies" the following:", except an employee covered by the merit pay system established under section 5402 of this title,".
(f) Section 5334 of title 5, United States Code (as amended in section 801(a)(3)(G) of this Act), is amended--,
(1) in paragraph (2) of subsection (c), by inserting", or for an employee appointed to a position covered by the merit pay system established under section 5402 of this title, any dollar amount," after "step"; and
(2) by adding at the end thereof the following new subsection:
"(f) In the case of an employee covered by the merit pay system established under section 5402 of this title, all references in this section to 'two steps' or 'two step-increases' shall be deemed to mean 6 percent.".
(g) Section 5335(e) of title 5, United States Code, is amended by inserting after "individual" the following: "covered by the merit pay system established under section 5402 of this title, or,".
(h) Section 5336(c) of title 5, United States Code, is amended by inserting after "individual" the following: "covered by the merit pay system established under section 5402 of this title, or,".
(i) The table of chapters for part III of title 5, United States Code, is amended by inserting after the item relating to chapter 53 the following new item: "54. Merit Pay and Cash Awards.......5401".
EFFECTIVE DATE
Sec. 504. (a) The provisions of this title shall take effect on the first day of the first applicable pay period which begins on or after October 1, 1981, except that such provisions may take effect with respect to any category or categories of positions before such day to the extent prescribed by the Director of the Office of Personnel Management.
(b) The Director of the Office of Personnel Management shall include in the first report required under section 5404 of title 5, United States Code (as added by this title), information with respect to the progress and cost of the implementation of the merit pay system and the cash award program established under chapter 54 of such title (as added by this title).
TITLE VI-- RESEARCH, DEMONSTRATION, AND OTHER PROGRAMS
RESEARCH PROGAMS AND DEMONSTRATION PROJECTS
Sec. 601. (a) Part III of title 5, United States Code, is amended by adding at the end of subpart C thereof the following new chapter:
"CHAPTER 47--PERSONNEL RESEARCH PROGRAMS AND DEMONSTRATION PROJECTS
" Sec. "4701. Definitions. "4702. Research programs. "4703. Demonstration projects. "4704. Allocation of funds. "4705. Reports. "4706. Regulations.
" Sec. 4701. Definitions
"(a) For the purpose of this chapter--,
"(1) 'agency' means an Executive agency, the Administrative Office of the United States Courts, and the Government Printing Office, but does not include--,
"(A) a Government corporation;
"(B) the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, and, as determined by the President, any Executive agency or unit thereof which is designated by the President and which has as its principal function the conduct of foreign intelligence or counterintelligence activities; or
"(C) the General Accounting Office;
"(2) 'employee' means an individual employed in or under an agency;
(3) 'eligible' means an individual who has qualified for appointment in an agency and whose name has been entered on the appropriate register or list of eligibles;
"(4) 'demonstration project' means a project conducted by the Office of Personnel Management, or under its supervision, to determine whether a specified change in personnel management policies or procedures would result in improved Federal personnel management; and
"(5) 'research program' means a planned study of the manner in which public management policies and systems are operating, the effects of those policies and systems, the possibilities for change, and comparisons among policies and systems.
"(b) This subchapter shall not apply to any position in the Drug Enforcement Administration which is excluded from the competitive service under section 201 of the Crime Control Act of 1976 (5 U.S.C. 5108 note; 90 Stat. 2425).
" Sec. 4702. Research programs
" The Office of Personnel Management shall--,
"(1) establish and maintain (and assist in the establishment and maintenance of) research programs to study improved methods and technologies in Federal personnel management;
"(2) evaluate the research programs established under paragraph (1) of this section;
"(3) establish and maintain a program for the collection and public dissemination of information relating to personnel management research and for encouraging and facilitating the exchange of information among interested persons and entities; and
"(4) carry out the preceding functions directly or through agreement or contract.
Sec. 4703. Demonstration projects
"(a) Except as provided in this section, the Office of Personnel Management may, directly or through agreement or contract with one or more agecies and other public and private organization, conduct and evaluate demonstration projects. Subject to the provisions of this section, the conducting of demonstration projects shall not be limited by any lack of specific authority under this title to take the action contemplated, or by any provision of this title or any rule or regulation prescribed under this title which is inconsistent with the action, including any law or regulation relating to--,
"(1) the methods of establishing qualification requirements for, recruitment for, and appointment to positions;
"(2) the methods of classifying positions and compensating employees;
"(3) the methods of assigning, reassgning, or promoting employees;
"(4) the methods of disciplining employees;
"(5) the methods of providing incentives to employees, including the provision of group or individual incentive bonuses or pay;
"(6) the hours of work per day or per week;
"(7) the methods of involving employees, labor organizations, and employee organizations in personnel decisions; and
"(8) the methods of reducing overall agency staff and grade levels.
"(b) Before conducting or entering into any agreement or contract to conduct a demonstration project, the Office shall--,
"(1) develop a plan for such project which identifies--,
"(A) the purposes of the project;
"(B) the types of employees or eligibles, categorized by occupational series, grade, or organizational unit;
"(C) the number of employees or eligibles to be included, in the aggregate and by category;
"(D) the methodology;
"(E) the duration;
"(F) the training to be provided;
"(G) the anticipated costs;
"(H) the methodology and criteria for evaluation;
"(I) a specific description of any aspect of the project for which there is a lack of specific authority; and
"(J) a specific citation to any provision of law, rule, or regulation which, if not waived under this section, would prohibit the conducting of the project, or any part of the project as proposed;
"(2) publish the plan in the Federal Register;
"(3) submit the plan so published to public hearing;
"(4) provide notification of the proposed project, at least 180 days in advance of the date any project proposed under this section is to take effect--,
"(A) to employees who are likely to be affected by the project; and
"(B) to each House of the Congress;
"(5) obtain approval from each agency involved of the final version of the plan; and
"(6) provide each House of the Congress with a report at least 90 days in advance of the date the project is to take effect setting forth the final version of the plan as so approved.
"(c) No demonstration project under this section may provide for a waiver of--,
"(1) any provision of chapter 63 or subpart G of this title;
"(2) (A) any provision of law referred to in section 2302(b) (1) of this title; or
"(B) any provision of law implementing any provision of law referred to in section 2302(b) (1) of this title by--,
"(i) providing for equal employment opportunity through affirmative action; or
"(ii) providing any right or remedy available to any employee or applicant for employment in the civil service;
"(3) any provision of chapter 15 or subchapter III of chpter 73 of this title;
"(4) any rule or regulation prescribed under any provision of law referred to in paragraph (1), (2), or (3) of this subsection; or
"(5) any provision of chapter 23 of this title, or any rule or regulation prescribed under this title, if such waiver is inconsistent with any merit system principle or any provision thereof relating to prohibited personnel practices.
"(d) (1) Each demonstration project shall--,
"(A) involve not more than 5,000 individuals other than individuals in any control groups necessary to validate the results of the project; and
"(B) terminate before the end of the 5-year period beginning on the date on which the project takes effect, except that the project may continue beyond the date to the extent necessary to validate the results of the project.
"(2) Not more than 10 active demonstration projects may be in effect at any time.
"(e) Subject to the terms of any written agreement or contract between the Office and an agency, a demonstration project involving the agency may be terminated by the Office, or the agency, if either determines that the project creates a substantial hardship on, or is not in the best interests of, the public, the Federal Government, employees, or eligibles.
"(f) Employees within a unit with respect to which a labor organization is accorded exclusive recognition under chapter 71 of this title shall not be included within any project under subsection (a) of this section--,
"(1) if the project would violate a collective bargaining agreement (as defined in section 7103 (8) of this title) between the agency and the labor organization, unless there is another written agreement with respect to the project between the agency and the organization permitting the inclusion; or
"(2) if the project is not covered by such a collective bargaining agreement, until there has been consultation or negotiation, as appropriate, by the agency with the labor organization.
"(g) Employees within any unit with respect to which a labor organization has not been accorded exclusive recognition under Chapter 71 of this title shall not be included within any project under subsection (a) of this section unless there has been agency consultation regarding the project with the employees in the unit.
"(h) The Office shall provide for an evaluation of the results of each demonstration project and its impact on improving public management.
"(i) Upon request of the Director of the Office of Personnel Management, agencies shall cooperate with and assist the Office, to the extent practicable, in any evaluation undertaken under subsection (h) of this section and provide the Office with requested information and reports relating to the conducting of demonstration projects in their respective agencies.
" Sec. 4704. Allocation of funds
" Funds appropriated to the Office of Personnel Management for the purpose of this chapter may be allocated by the Office to any agency conducting demonstration projects or assisting the Office in conducting such projects. Funds so allocated shall remain available for such period as may be specified in appropriation Acts. No contract shall be entered into under this chapter unless the contract has been provided for in advance in appropriation Acts.
" Sec. 4705. Reports
"The Office of Personnel Management shall include in the annual report required by section 1308(a) of this title a summary of research programs and demonstration projects conducted during the year covered by the report, the effect of the programs and projects on improving public management and increasing Government efficiency, and recommendations of policies and procedures which will improve such management and efficiency.
" Sec. 4706. Regulations
"The Office of Personnel Management shall prescribe regulations to carry out the purpose of this chapter.".
(b) The table of chapters for part III of title 5, United States Code, is amended by inserting after the item relating to chapter 45 the following new item: "47. Personnel Research Programs and Demonstration Projects........ 4701".
INTERGOVERNMENTAL PERSONNEL ACT AMENDMENTS
Sec. 602. (a) Section 208 of the Intergovernmental Personnel Act of 1970 (42 U.S.C. 4728) is amended--,
(1) by striking out the section heading and inserting in lieu thereof the following:
"TRANSFER OF FUNCTIONS AND ADMINISTRATION OF MERIT POLICIES";
(2) by redesignating subsections (b), (c), (d), (e), and (f) as subsections (c), (d), (e), (f), and (g), respectively, and by inserting after subsection (a) the following new subsection:
"(b) In accordance with regulations of the Office of Personnel Management, Federal agencies may require as a condition of participation in assistance programs, systems of personnel administration consistent with personnel standards prescribed by the Office for positions engaged in carrying out such programs. The standards shall--,
"(1) include the merit principles in section 2 of this Act;
"(2) be prescribed in such a manner as to minimize Federal intervention in State and local personnel administration."; and
(3) by striking out the last subsection and inserting in lieu thereof the following new subsection:
"(h) Effective one year after the date of the enactment of the Civil Service Reform Act of 1978, all statutory personnel requirements established as a condition of the receipt of Federal grants-in-aid by State and local governments are hereby abolished, except--,
"(1) requirements prescribed under laws and regulations referred to in subsection (a) of this section;
"(2) requirements that generally prohibit discrimination in employment or require equal employment opportunity;
"(3) the Davis-Bacon Act (40 U.S.C. 276 et seq.);
and
"(4) chapter 15 of title 5, United States Code relating to political activities of certain State and local employees
(b) Section 401 of such Act (84 Stat. 1920) is amended by striking out "governments and institutions of higher education" and inserting in lieu thereof "governments, institutions of higher education, and other organizations".
(c) Section 403 of such Act (84 Stat. 1925) is amended by inserting "(a)" after "403.", and by adding at the end thereof the following new subsection:
"(b) Effective beginning on the effective date of the Civil Service Reform Act of 1978, the provisions of section 314(f) of the Public Health Service Act (42 U.S.C. 246(f)) applicable to commissioned officers of the Public Health Service Act are hereby repealed.".
(d) Section 502 of such Act (42 U.S.C. 4762) is amended in paragraph (3) by inserting "the Trust Territory of the Pacific Islands," before "and a territory or possession of the United States,".
(e) Section 506 of such Act (42 U.S.C. 4766) is amended--,
(1) in subsection (b) (2), by striking out " District of Columbia" and inserting in lieu thereof "District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, and the Virgin Islands"; and
(2) in subsection (b) (5), by striking out "and the District of Columbia" and inserting in lieu thereof ", the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, and the Virgin Islands".
AMENDMENTS TO THE MOBILITY PROGRAM
Sec. 603. (a) Section 3371 of title 5, United States Code, is amended--,
(1) by inserting "the Trust Territory of the Pacific Islands," after "Puerto Rico," in paragraph (1) (A); and
(2) by striking out "and" at the end of paragraph (1), by striking
out the period at the end of paragraph (2) and inserting a semicolon in lieu thereof, and by adding at the end thereof the following:
"(3) ' Federal agency' means an Executive agency, military department, a court of the United States, the Administrative Office of the United States Courts, the Library of Congress, the Botanic Garden, the Government Printing Office, the Congressional Budget Office, the United States Postal Service, the Postal Rate Commission, the Office of the Architect of the Capitol, the Office of Technology Assessment, and such other similar agencies of the legislative and judicial branches as determined appropriate by the Office of Personnel Management; and
"(4) 'other organization' means--,
"(A) a national, regional, State-wide, area-wide, or metropolitan organization representing member State or local governments;
"(B) an association of State or local public officials; or
"(C) a nonprofit organization which has as one of its principal functions the offering of professional advisory, research, educational, or development services, or related services, to governments or universities concerned with public management.".
(b) Sections 3372 through 3375 of title 5, United States Code, are amended by striking out "executive agency" and "an executive agency" each place they appear and inserting in lieu thereof " Federal agency" and "a Federal agency", respectively.
(c) Section 3372 of title 5, United States Code, is further amended--,
(1) in subsection (a)(1), by inserting after "agency" the following: ", other than a noncareer appointee, limited term appointee, or limited emergency appointee (as such terms are defined in section 3132(a) of this title) in the Senior Executive Service and an employee in a position which has been excepted from the competitive service by reason of its confidential, policy determining, policy-making, or policy-advocating character,";
(2) in subsection (b)(1), by striking out "and";
(3) in subsection (b)(2), by striking out the period after "agency" and inserting in lieu thereof a semicolon;
(4) by adding at the end of subsection (b) the following:
"(3) an employee of a Federal agency to any other organization;
and
"(4) an employee of an other organization to a Federal agency."; and
(5) by adding at the end thereof (as amended in paragraph (4) of this subsection) the following new subsection:
"(c)(1) An employee of a Federal agency may be assigned under this subchapter only if the employee agrees, as a condition of accepting an assignment under this subchapter, to serve in the civil service upon the completion of the assignment for a period equal to the length of the assignment.
"(2) Each agreement required under paragraph (1) of this subsection shall provide that in the event the employee fails to carry out the agreement (except for good and sufficient reason, as determined by the head of the Federal agency from which assigned) the employee shall be liable to the United States for payment of all expenses (excluding salary) of the assignment. The amount shall be treated as a debt due the United States.".
(d) Section 3374 of title 5, United States Code, is further amended--,
(1) by adding at the end of subsection (b) the following new sentence:
" The above exceptions shall not apply to non-Federal employees who are covered by chapters 83, 87, and 89 of this title by virtue of their non-Federal employment immediately before assignment and appointment under this section.";
(2) in subsection (c)(1), by striking out the semicolon at the end thereof and by inserting in lieu thereof the following: ", except to the extent that the pay received from the State or local government is less than the appropriate rate of pay which the duties would warrant under the applicable pay provisions of this title or other applicable authority;"; and
(3) by striking out the period at the end of subsection (c) and inserting in lieu thereof the following:", or for the contribution of the State or local government, or a part thereof, to employee benefit systems.".
(e) Section 3375(a) of title 5, United States Code, is further amended by striking out "and" at the end of paragraph (4), by redesignating paragraph (5) as paragraph (6), and by inserting after paragraph (4) the following;
"(5) section 5724a(b) of this title, to be used by the employee for miscellaneous expenses related to change of station where movement or storage of household goods is involved; and".
TITLE VII--FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
Sec. 701. So much of subpart F of part III of title 5, United States Code, as precedes subchapter II of chapter 71 thereof is amended to read as follows:
"Subpart F--Labor-Management and Employee Relations
" CHAPTER 71--LABOR-MANAGEMENT RELATIONS
"SUBCHAPTER I--GENERAL PROVISIONS
" Sec. "7101. Findings and purpose. "7102. Employees' rights. "7103. Definitions; application. "7104. Federal Labor Relations Authority. "7105. Powers and duties of the Authority. "7106. Management rights.
" SUBCHAPTER II--RIGHTS AND DUTIES OF AGENCIES AND LABOR ORGANIZATIONS
" Sec. "7111. Exclusive recognition of labor organizations. "7112. Determination of appropriate units for labor organization representation. "7113. National consultation rights. "7114. Representation rights and duties. "7115. Allotments to representatives. "7116. Unfair labor practices. "7117. Duty to bargain in good faith; compelling need; duty to consult. "7118. Prevention of unfair labor practices. "7119. Negotiation impasses; Federal Service Impasses Panel. "7120. Standards of conduct for labor organizations.
" SUBCHAPTER III--GRIEVANCES, APPEALS, AND REVIEW
" Sec. "7121. Grievance procedures. "7122. Exceptions to arbitral awards. "7123. Judicial review; enforcement.
" SUBCHAPTER IV--ADMINISTRATIVE AND OTHER PROVISIONS
" Sec. "7131. Official time. "7132. Subpenas. "7133. Compilation and publication of data. "7134. Regulations. "7135. Continuation of existing laws, recognitions, agreements, and procedures.
" SUBCHAPTER I--GENERAL PROVISIONS
Section 7101. Findings and purpose
"(a) The Congress finds that--,
"(1) experience in both private and public employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them--,
"(A) safeguards the public interest,
"(B) contributes to the effective conduct of public business, and
"(C) facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment; and
"(2) the public interest demands the highest standards of employee performance and the continued development and implementation of modern and progressive work practices to facilitate and improve employee performance and the efficient accomplishment of the operations of the Government.
Therefore, labor organizations and collective bargaining in the civil service are in the public interest.
"(b) It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.
Section. 7102. Employees' rights
" Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right--,
"(1) to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities, and
"(2) to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter.
Section. 7103. Definitions; application
"(a) For the purpose of this chapter--,
"(1) 'person' means an individual, labor organization, or agency;
"(2) 'employee' means an individual--,
"(A) employed in an agency; or
"(B) whose employment in an agency has ceased because of any unfair labor practice under section 7116 of this title and who has not obtained any other regular and substantially equivalent employment, as determined under regulations prescribed by the Federal Labor Relations Authority;
but does not include--,
"(i) an alien or noncitizen of the United States who occupies a position outside the United States;
"(ii) a member of the uniformed services;
"(iii) a supervisor or a management official;
"(iv) an officer or employee in the Foreign Service of the United States employed in the Department of State, the Agency for International Development, or the international Communication Agency; or
"(v) any person who participates in a strike in violation of section 7311 of this title;
"(3) 'agency' means an Executive agency (including a nonappropriated fund instrumentality described in section 2105(c) of this title and the Veterans' Canteen Service, Veterans' Administration), the Library of Congress, and the Government Printing Office, but does not include--,
"(A) the General Accounting Office;
"(B) the Federal Bureau of Investigation;
"(C) the Ceneral Intelligence Agency;
"(D) the National Security Agency;
"(E) the Tennessee Valley Authority;
"(F) the Federal Labor Relations Authority; or
"(G) the Federal Service Impasses Panel;
"(4) 'labor organization' means an organization composed in whole or in part of employees, in which employees participate and pay dues, and which has as a purpose the dealing with an agency concerning grievances and conditions of employment, but does not include--,
"(A) an organization which, by its constitution, bylaws, tacit agreement among its members, or otherwise, denies membership because of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status, political affiliation, marital status, or handicapping condition;
"(B) an organization which advocates the overthrow of the constitutional form of government of the United States;
"(C) an organization sponsored by an agency; or
"(D) an organization which participates in the conduct of a strike against the Government or any agency thereof or imposes a duty or obligation to conduct, assist, or participate in such a strike;
"(5) 'dues' means dues, fees, and assessments;
"(6) ' Authority' means the Federal Labor Relations Authority described in section 7104(a) of this title;
"(7) ' Panel' means the Federal Service Impasses Panel described in section 7119(c) of this title;
"(8) 'collective bargaining agreement' means an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter;
"(9) 'grievance' means any complaint--,
"(A) by any employee concerning any matter relating to the employment of the employee;
"(B) by any labor organization concerning any matter relating to the employment of any employee; or
"(C) by any employee, labor organization, or agency concerning--,
"(i) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or
"(ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment;
"(10) 'supervisor' means an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment, except that, with respect to any unit which includes firefighters or nurses, the term 'supervisor' includes only those individuals who devote a preponderance of their employment time to exercising such authority;
"(11) 'management official' means an individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency;
"(12) 'collective bargaining' means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession;
"(13) 'confidential employee' means an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations;
"(14) 'conditions of employment' means personnel poliicies. practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters--,
"(A) relating to political activities prohibited under subchapter III of chapter 73 of this title;
"(B) relating to the classification of any position; or
"(C) to the extent such matters are specifically provided for by Federal statute;
"(15) 'professional employee' means--,
"(A) an employee engaged in the performance of work--,
"(i) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an instution of higher learning or a hospital (as distinguished from knowledge acquired by a general academic education, or from an apprenticeship, or from training in the performance of routine mental, manual, mechanical, or physical activities);
"(ii) requiring the consistent exercise of discretion and judgment in its performance;
"(iii) which is predominantly intellectual and varied in character (as distinguished from routine mentl, manual, mechanical, or physical work); and
"(iv) which is of such character that the output produced or the result accomplished by such work cannot be standardized in relation to agiven period of time; or
"(B) an employee who has completed the courses of specialized intellectual instruction and study described in subparagraph (A)( i) of this paragraph and is performing related work under appropriate direction or guidance to qualify the employee as a professional employee described in subparagraph (A) of this paragraph;
"(16) 'exclusive representative' means any labor organization which--,
"(A) is certified as the exclusive representative of employees in an appropriate unit pursuant to section 7111 of this title; or
"(B) was recognized by an agency immediately before the effective date of this chapter as the exclusive representative of employees in an appropriate unit--,
"(i) on the basis of an election, or
"(ii) on any basis other than an election, and continues to be so recognized in accordance with the provisions of this chapter;
"(17) 'firefighter' means any employee engaged in the performance of work directly connected with the control and extinguishment of fires or the maintenance and use of firefighting apparatus and equipment; and
"(18) ' United States' means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
"(b)(1) The President may issue an order excluding any agency or subdivision thereof from coverage under this chapter if the President determines that--,
"(A) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative, or national security work, and
"(B) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.
"(2) The President may issue an order suspending any provision of this chapter with respect to any agency, installation, or activity located outside the 50 States and the District of Columbia, if the President determines that the suspension is necessary in the interest of national security.
Section 7104. Federal labor Relations Authority
"(a) The Federal Labor Relations Authority is composed of three member, not more than 2 of whom may be adherents of the same political party. No member shall engage in any other business or employment or hold another office or position in the Government of the United States except as otherwise provided by law.
"(b) Members of the Authority shall be appointed by the President by and with the advice and consent of the Senate, and may be removed by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office. The President shall designate one member to serve as Chairman of the Authority.
"(c)(1) One of the original members of the Authority shall be appointed for a term of 1 year, one for a term of 3 years, and the Chairman for a term of 5 years. Thereafter, each member shall be appointed for a term of 5 years.
"(2) Notwithstanding paragraph (1) of this subsection, the term of any member shall not expire before the earlier of --,
"(A) the date on which the member's successor takes office, or
"(B) the last day of the Congress beginning after the date on which the member's term of office would (but for this subparagraph) expire.
An individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced.
"(d) A vacancy in the Authority shall not impair the right of the remaining members to exercise all of the powers of the Authority.
"(e) The authority shall make an annual report to the President for transmittal to the Congress which shall include information as to the cases it has heard and the decisions it has rendered.
"(f)(1) The General Counsel of the Authority shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The General Counsel may be removed at any time by the President. The General Counsel shall hold no other office or position in the Government of the United States except as provided by law.
"(2) The General Counsel may--,
"(A) investigate alleged unfair labor practices under this chapter,
"(B) file and prosecute complaints under this chapter, and
"(C) exercise such other powers of the Authority as the authority may prescribe.
"(3) The General Counsel shall have direct authority over, and responsibility for, all employees in the office of General Counsel, including employees of the General Counsel in the regional offices of the Authority.
Section 7105. Powers and duties of the Authority
"(a)(1) The Authority shall provide leadership in establishing policies and guidance relating to matters under this chapter, and, except as otherwise provided, shall be responsible for carrying out the purpose of this chapter.
"(2) The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority--,
"(A) determine the appropriateness of units for labor organization representation under section 7112 of this title;
"(B) supervise or conduct elections to determine whether a labor organization has been selected as an exclusive representative by a majority of the employees in an appropriate unit and otherwise administer the provisions of section 7111 of this title relating to the according of exclusive recognition to labor organizations;
"(C) prescribe criteria and resolve issues relating to the granting of national consultation rights under section 7113 of this title;
"(D) prescribe criteria and resolve issues relating to determining compelling need for agency rules or regulations under section 7117(b) of this title;
"(E) resolves issues relating to the duty to bargain in good faith under section 7117(c) of this title;
"(F) prescribe criteria relating to the granting of consultation rights with respect to conditions of employment under section 7117(d) of this title;
"(G) conduct hearings and resolve complaints of unfair labor practices under section 7118 of this title;
"(H) resolve exceptions to arbitrator's awards under section 7122 of this title; and
"(I) take such other actions as are necessary and appropriate to effectively administer the provisions of this chapter.
"(b) The Authority shall adopt an official seal which shall be judicially noticed.
"(c) The principal office of the Authority shall be in or about the District of Columbia, but the Authority may meet and exercise any or all of its powers at any time or place. Except as otherwise expressly provided by law, the Authority may, by one or more of its members or by such agents as it may designate, make any appropriate inquiry necessary to carry out its duties wherever persons subject to this chapter are located. Any member who participates in the inquiry shall not be disqualified from later participating in a decision of the Authority in any case relating to the inquiry.
"(d) The Authority shall appoint an Executive Director and such regional directors, administrative law judges under section 3105 of this title, and other individuals as it may from time to time find necessary for the proper performance of its functions. The Authority may delegate to officers and employees appointed under this subsection authority to perform such duties and make such expenditures as may be necessary.
"(e) (1) The Authority may delegate to any regional director its authority under this chapter--,
"(A) to determine whether a group of employees is an appropriate unit;
"(B) to conduct investigations and to provide for hearings;
"(C) to determine whether a question of representation exists and to direct an election; and
"(D) to supervise or conduct secret ballot elections and certify the results thereof.
"(2) The Authority may delegate to any administrative law judge appointed under subsection (d) of this section its authority under section 7118 of this title to determine whether any person has engaged in or is engaging in an unfair labor practice.
"(f) If the Authority delegates any authority to any regional director or administrative law judge to take any action pursuant to subsection (e) of this section, the Authority may, upon application by any interested person filed within 60 days after the date of the action, review such action, but the review shall not, unless specifically ordered by the Authority, operate as a stay of action. The Authority may affirm, modify, or reverse any action reviewed under this subsection. If the Authority does not undertake to grant review of the action under this subsection within 60 days after the later of--,
"(1) the date of the action; or
"(2) the date of the filing of any application under this subsection for review of the action;
the action shall become the action of the Authority at the end of such 60-day period.
"(g) In order to carry out its functions under this chapter, the Authority may--,
"(1) hold hearings;
"(2) administer oaths, take the testimony or deposition of any person under oath, and issue subpenas as provided in section 7132 of this title; and
"(3) may require an agency or a labor organization to cease and desist from violations of this chapter and require it to take any remedial action it considers appropriate to carry out the policies of this chapter.
"(h) Except as provided in section 518 of title 28, relating to litigation before the Supreme Court, attorneys designated by the Authority may appear for the Authority and represent the Authority in any civil action brought in connection with any function carried out by the Authority pursuant to this title or as otherwise authorized by law.
"(i) In the exercise of the functions of the Authority under this title, the Authority may request from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or policy directives issued by the Office of Personnel Management in connection with any matter before the Authority.
" Sec. 7106. Management rights
"(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--,
"(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and
"(2) in accordance with applicable laws--,
"(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
"(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
"(C) with respect to filling positions, to make selections for appointments from--,
"(i) among properly ranked and certified candidates for promotion; or
"(ii) any other appropriate source; and "(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.
"(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--,
"(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
"(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
"(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
" SUBCHAPTER II-- RIGHTS AND DUTIES OF AGENCIES AND LABOR ORGANIZATIONS
Sec. 7111. Exclusive recognition of labor organizations
"(a) An agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative, in a secret ballot election, by a majority of the employees in an appropriate unit who cast valid ballots in the election.
"(b) If a petition is filed with the Authority--,
"(1) by any person alleging--,
"(A) in the case of an appropriate unit for which there is no exclusive representative, that 30 percent of the employees in the appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative, or
"(B) in the case of an appropriate unit for which there is an exclusive representative, that 30 percent of the employees in the unit allege that the exclusive representative is no longer the representative of the majority of the employees in the unit; or
"(2) by any person seeking clarification of, or an amendment to, a certification then in effect or a matter relating to representation;
the Authority shall investigate the petition, and if it has reasonable cause to believe that a question of representation exists, it shall provide an opportunity for a hearing (for which a transcript shall be kept) after reasonable notice. If the Authority finds on the record of the hearing that a question of representation exists, the Authority shall supervise or conduct an election on the question by secret ballot and shall certify the results thereof. An election under this subsection shall not be conducted in any appropriate unit or in any subdivision thereof within which, in the preceding 12 calendar months, a valid election under this subsection has been held.
"(c) A labor organization which--,
"(1) has been designated by at least 10 percent of the employees in the unit specified in any petition filed pursuant to subsection (b) of this section;
"(2) has submitted a valid copy of a current or recently expired collective bargaining agreement for the unit; or
"(3) has submitted other evidence that it is the exclusive representative of the employees involved;
may intervene with respect to a petition filed pursuant to subsection (b) of this section and shall be placed on the ballot of any election under such subsection (b) with respect to the petition.
"(d) The Authority shall determine who is elegible to vote in any election under this section and shall establish rules governing any such election, which shall include rules allowing empoyees elegible to vote the opportunity to choose--,
"(1) from labor organizations on the ballot, that labor organization which the employees wish to have represent them; or
"(2) not to be represented by a labor organization.
In any election in which no choice on the ballot receives a majority of the votes cast, a runoff election shall be conducted between the two choices receiving the highest number of votes. A labor organization which receives the majority of the votes cast in an election shall be certified by the Authority as the exclusive representative.
"(e) A labor organization seeking exclusive recognition shall submit to the Authority and the agency involved a roster of its officers and representatives, a copy of its constitution and bylaws, and a statement of its objectives.
"(f) Exclusive recognition shall not be accorded to a labor organization--,
"(1) if the Authority determines that the labor organization is subject to corrupt influences or influences opposed to democratic principles;
"(2) in the case of a petition filed pursuant to subsection (b) (1) (A) of this section, if there is not credible evidence that at least 30 percent of the employees in the unit specified in the petition wish to be represented for the purpose of collective bargaining by the labor organization seeking exclusive recognition;
"(3) if there is then in effect a lawful written collective bargaining agreement between the agency involved and an exclusive representative (other than the labor organization seeking exclusive recognition) covering any employees included in the unit specified in the petition, unless--,
"(A) the collective bargaining agreement has been in effect for more than 3 years, or
"(B) the petition for exclusive recognition is filed not more than 105 days and not less than 60 days before the expiration date of the collective bargaining agreement; or
"(4) if the Authority has, within the previous 12 calendar months, conducted a secret ballot election for the unit described in any petition under this section and in such election a majority of the employees voting chose a labor organization for certification as the unit's exclusive representative.
"(g) Nothing in this section shall be construed to prohibit the waiving of hearings by stipulation for the purpose of a consent election in conformity with regulations and rules or decisions of the Authority.
" Sec. 7112. Determination of appropriate units for labor organization representation
"(a) (1) The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the agency involved.
"(b) A unit shall not be determined to be appropriate under this section solely on the basis of the extent to which employees in the proposed unit have organized, nor shall a unit be determined to be appropriate if it includes--,
"(1) except as provided under section 7135(a) (2) of this title, any management official or supervisor;
"(2) a confidential employee;
"(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 lobor 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.
" Sec. 7113. National consultation rights
"(a) (1) 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.
" Sec. 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 subjects within the scope of collective bargaining; and
"(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. " Sec. 7115. Allotments to representatives
"(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.
" Sec. 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 regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed; 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 impending 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 status, 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 otherwise fail or refuse to comply with any provision of this chapter.
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 appeals 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 aggrieved 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.
" Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult
"(a) (1) Subject to paragraph (2) of this subsection, the duty to bargain 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 Government-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 majority of the employees in the issuing agency or primary national subdivision, as the case may be, to whom the rule or regulation is applicable.
"(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 deermination 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--,
"(A) file with the Authority a statement--,
"(i) withdrawing the allegation; or
"(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 15th 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 rights by any agency with respect to any Government-wide rule or regulation issued by the agency effecting any substantive change in any 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.
" Sec. 7118. Prevention of unfair labor practices
"(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 contain a notice--,
"(A) of the charge;
"(B) that a hearing will be held before the Authority (or any 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 fixed 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 in 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
"(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 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 5 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 writing 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.
" Sec. 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.
"(b) If voluntary arrangements, including the services of the Federal 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 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 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.
"(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 agree otherwise.
" Section 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 practices 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--,
"(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.
"(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 Management Relations, provide for bonding of officials and employees of the organization, and comply with trusteeship and election standards.
"(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 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 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 recognition 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
" Section 7121. Grievance procedures
"(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 this 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);
"(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)(1) of this title which also falls under 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 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 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 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.
"(e)(1) Matters covered under sections 4303 and 7512 of this title which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either 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 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 be obtained of a final decision in such matters raised under applicable appellate procedures.
" Section 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--,
"(1) because it is contrary to any law, rule, or regulation; or
"(2) on other grounds similar to those applied by Federal courts in private sector labor-management relations;
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).
" Section 7123. Judicial review; enforcement
"(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 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 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, 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
" Section 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.
" Section 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--,
"(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.
" Section 7133. 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.
" Section 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.
" Section 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 employees, which is entered into before the effective date of this chapter; or
"(2) the renewal, continuation, or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent management officials or supervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of 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 of this chapter or by regulations or decisions issued pursuant to this chapter.".
BACKPAY IN CASE OF UNFAIR LABOR PRACTICES AND GRIEVANCES
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 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
"(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 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
"(ii) annual leave credited under clause (i) of this subparagraph but unused and still available to the employee 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.".
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;
(2) by striking out the subchapter heading and inserting in lieu thereof the following:
" CHAPTER 72--ANTIDISCRIMINATION; RIGHT TO PETITION CONGRESS
"SUBCHAPTER I--ANTIDISCRIMINATION IN EMPLOYMENT
" Sec. "7201. Antidiscrimination policy; minority recruitment program. "7202. Marital status. "7203. Handicapping condition. "7204. Other prohibitions.
" SUBCHAPTER II-- EMPLOYEES' RIGHT TO PETITION CONGRESS
"7211. Employees' right to petition Congress.";
and (3) by adding at the end thereof the following new subchapter:
" SUBCHAPTER II-- EMPLOYEES' RIGHT TO PETITION CONGRESS
"Section 7211. Employees' right to petition Congress
" 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
"71. Policies 7101"; and inserting in lieu thereof--,
" Subpart F--Labor-Management and Employee Relations
"71. Labor-Management Relations 7101 "72. Antidiscrimination; Right to Petition Congress 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 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 adding 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 the following clause:
"(145) Members, Federal Labor Relations Authority (2) and its General Counsel.".
MISCELLANEOUS PROVISIONS
Sec. 704. (a) Those terms and conditions of employment and other employment benefits with respect to Government prevailing rate 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 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 employees referred to in paragraph (1) of this subsection shall be negotiated in 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 55 of title 5, United States Code;
or
(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 PAY RETENTION
GRADE AND PAY RETENTION
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
"Section 5361. 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
"(7) '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.
" Section 5362. Grade retention following a change of positions or reclassification
"(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 higher 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 any 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.
" Section 5363. Pay retention
"(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
"(3) who is in a 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) 150 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, 53, or 54 of this title
to a rate of basic pay which is equal to or higher than, or declines a reasonable offer of a position the rate of 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.
" Section 5364. Remedial actions
" Under regulations prescribed by the Office of Personnel Management, the Office may require any agency--,
"(1) to report to the Office information with respect to vacancies (including impending vacancies);
"(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 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.
" Section 5365. Regulations
"(a) The Office of Personnel Management shall prescribe regulations to carry out the purpose of this subchapter.
"(b) Under such regulations, the Office may provide for the application of all or portions of the provisions of this subchapter--,
"(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.
" Section 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 Office 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 reduction-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) Section 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. "5361. Definitions. "5362. Grade retention following a change of positions or reclassification. "5363. Pay retention. "5364. Remedial actions. "5365. Regulations. "5366. Appeals. " SUBCHAPTER VII-- MISCELLANEOUS PROVISIONS
" Sec. "5371. Scientific and professional positions. "5372. Administrative law judges. "5373. Limitation on pay fixed by 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 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.
(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 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 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--448; 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,".
(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 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).
(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.
(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 another retirement system for Federal employees; or
(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.
(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.
SAVINGS PROVISIONS
Sec. 902. (a) Except as otherwise provided in this Act, all executive 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 jurisdictions.
(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.
AUTHORIZATION OF APPROPRIATIONS
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
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 immediately before the effective date of this Act; or
(2) limit, curtail, or terminate the President's authority to delegate, redelegate, or terminate any delegation of functions.
REORGANIZATION PLANS
Sec. 905. Any provision in either Reorganization Plan Numbered 1 or 2 of 1978 inconsistent with any provision in this Act is hereby superseded.
TECHNICAL AND CONFORMING 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";
Approved October 13, 1978.
PL 95-454, 1978 S 2640
