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EXECUTIVE ORDER 11636
Employee-Management Relations in the Foreign Service of the
WHEREAS, the public interest requires high standards of performance by the members of the Foreign Service of the United States and the continuous development and implementation of modern and progressive work practices to facilitate their improved performance and efficiency; and
WHEREAS, the effective participation by the men and women of the Foreign Service in the formulation of personnel policies and procedures affecting the conditions of their employment is essential to the efficient administration of the Foreign Service and to the well-being of its members; and
WHEREAS, the unique conditions of Foreign Service employment require a distinct framework for the development and implementation of modern, constructive and cooperative relationships between management officials in the foreign affairs agencies and organizations representing Foreign Service employees; and
WHEREAS, subject to law and the paramount requirements of public service, effective employee-management relations within the Foreign Service require a clear statement of the respective rights and obligations of organizations and agency management; and
WHEREAS, the effectiveness of the foreign affairs agencies is well served by measures which stress their essential unity of purpose:
NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and statutes of the United States, including sections 3301 and 7301 of title 5, United States Code, and section 202 of the Revised Statutes (22 U.S.C. 2656), and as President of the United States, I hereby direct that the following policies shall govern the foreign affairs agencies in all dealings with Foreign Service employees and organizations representing them.
SECTION 1. Policy. (a) Each employee has the right, freely and without fear of penalty or reprisal, to form, join, and assist any organization as defined herein or to refrain from any such activity, and each employee shall be protected in the exercise of this right. Except as otherwise expressly provided in this Order, the right to assist an organization extends to participation in the management of the organization and acting for the organization in the capacity of an organization representative, including presentation of its views to officials of the executive branch, the Congress, or other appropriate authority. The head of each foreign affairs agency shall take the action required to assure that employees in the agency are apprised of their rights under this section, and that no interference, restraint, coercion, or discrimination is practiced within his agency to encourage or discourage membership in an organization.
(b) Paragraph (a) of this section does not authorize participation in the management of an organization or acting as a representative of an organization by a management official or a confidential employee, or by an employee when the participation or activity would result in a conflict or apparent conflict of interest or otherwise be incompatible with law or with the official duties of the employee.
Sec. 2. Definitions. When used in this Order, the term—
(a) “Foreign affairs agency” means the Department of State, the United States Information Agency, the Agency for International Development and its successor agency or agencies;
(b) “Employee” means an officer or employee of the Foreign Service, wherever serving, other than an alien clerk or employee or consular agent, appointed in or assigned to a foreign affairs agency under authority of the Foreign Service Act of 1946, as amended; the Foreign Assistance Act of 1961, as amended; or Public Law 90–494;
(c) “Management official” means an individual who: (1) is a chief of mission or principal officer;
(2) is serving in a position in a foreign affairs agency to which he has been appointed by the President, by and with the advice and consent of the Senate, or by the President alone;
(3) occupies a position which in the sole judgment of the head of his foreign affairs agency is of comparable importance;
(4) is serving as a deputy to any of the above; or
(5) is engaged in the administration of this Order or in the formulation of the personnel policies and programs of his agency;
(d) “Confidential employee” means an individual who assists and acts in a confidential capacity to a management official who formulates, determines or effectuates management policies in the field of employeemanagement relations;
(e) “Agency management” means management officials and confidential employees in a foreign affairs agency;
(f) “Organization” means a lawful organization of any kind in which employees participate and which exists for the purpose, in whole or in part, of dealing with agencies concerning grievances, personnel policies and practices, or other matters affecting the working conditions of their members, but does not include an organization which—
(1) consists solely of management officials;
(2) assists or participates in a strike against the Government of the United States or any agency thereof, or imposes a duty or obligation to conduct, assist or participate in such a strike;
(3) advocates the overthrow of the constitutional form of government in the United States; or
(4) discriminates with regard to the terms or conditions of membership because of race, color, creed, sex, age, or national origin.
(g) “Secretary” means the Secretary of State;
(i) “Commission” means the Employee-Management Relations Commission established under section 5 of this Order; and
(j) “Public member” means an individual who is not an employee of the United States Government (other than as a special Government employee) and who is selected to serve on a disputes panel or a grievance panel established under this Order.
Sec. 3.-Application. (a) This Order applies to all employees except as provided in subsection (b) below.
(b) The head of a foreign affairs agency may, in his sole judgment, suspend temporarily any provision of this Order with respect to any post, bureau, office, or activity, in the United States or abroad, when he determines in writing in emergency situations that this is necessary in the national interest, subject to the conditions he prescribes. Such suspension shall not operate to deny access by an employee to the grievance procedures established under section 10 of this Order.
SEC. 4. Board of the Foreign Service. (a) The Board shall, in accordance with the regulations prescribed by the Secretary under section 16 of this Order:
(1) consider major policy issues arising in the administration of this Order, appeals on substantive aspects of personnel policy or procedure, proposed amendments to this Order and such other matters as it deems appropriate to assure the effectuation of the purposes of this Order;
(2) make recommendations on regulations for the implementation of this Order;
(3) interpret this Order and the regulations of the Secretary, except as provided in section 5; and
(4) perform such additional functions relating to the administration of this Order as the Secretary may from time to time prescribe.
(b) In the performance of its functions under this Order, the Board (including committees and panels thereof) may:
(1) obtain views from interested agencies, organizations and other parties, orally or in writing, as it may deem necessary and appropriate;
(2) receive staff assistance from a secretariat which shall be responsible directly to the Chairman of the Board and otherwise independent of foreign affairs agency management; and
(3) request and use the services and assistance of other agencies in accordance with the Secretary's regulations.
Sec. 5. Employee-Management Relations Commission.
(a) There is hereby established, as a committee of the Board, an Employee-Management Relations Commission composed of those Board members or participants representing the Department of Labor, the Civil Service Commission, and the Office of Management and Budget. The representative of the Office of Management and Budget shall be the Chairman of the Commission.
(b) The Commission shall:
(1) decide questions relating to the eligibility of organizations for recognition under this Order;
(2) supervise elections to determine whether an organization should be recognized as the exclusive representative of the employees in a foreign affairs agency, and certify the results;
(3) decide complaints of alleged unfair practices and alleged violations of the standards of conduct for organizations; and,
(4) decide questions of whether an obligation to consult exists under section 8 of this Order with respect to particular issues.
(c) In any matter arising under paragraph (b) of this section, the Commission shall have final authority and may require an agency or an organization to cease and desist from a violation of this Order and require it to take such affirmative action as the Commission considers appropriate to effectuate the policies of this Order.
(d) The Commission shall prescribe regulations needed to administer its functions under this section. Substantive regulations of the Commission shall be subject to review by the Board.
Sec. 6. Disputes Panel. (a) The Chairman of the Board shall desig= nate a panel which shall assist in resolving disputes arising in the course of consultation under section 8. The panel shall consist of two members of the Foreign Service, neither of whom shall be a management official, a confidential employee or an organization official; one representative of the Department of Labor; one member of the Federal Service Impasses Panel; and one public member. The Chairman of the Board shall designate the Chairman of the panel.
(b) In any case where an appeal is made under section 9, the panel shall make findings of fact and recommendations to the Board for its consideration in deciding the appeal. In the performance of this function, the panel may, in cases it deems appropriate, attempt to mediate disputes and to promote agreements between representatives of foreign affairs agencies and recognized organizations.
Sec. 7. Recognition in General. (a) An organization seeking recognition shall:
(1) submit to the Commission and to the foreign affairs agency concerned copies of its constitution and by-laws, a statement of its objectives and a roster of its officers; and
(2) establish to the satisfaction of the Commission, in its sole discretion, that the organization functions under acceptable democratic and ethical standards and that it meets the other requirements of this Order.
(b) Elections may be held to determine whether—
(1) an organization should be recognized as the exclusive representative of employees in a foreign affairs agency, other than management officials and confidential employees;
(2) an organization should replace another organization as the exclusive representative; or
(3) an organization should cease to be the exclusive representative.
All elections shall be conducted under the supervision of the Commission, or persons designated by the Commission, and shall be by secret ballot. Each employee eligible to vote shall be provided the opportunity to choose the organization he wishes to represent him from among those on the ballot, or to vote not to have a representative. The results of the election shall be determined on the basis of the majority of valid ballots CaSt.
(c) A foreign affairs agency shall accord recognition to an organization certified by the Commission following an election as the exclusive representative of the employees in the foreign affairs agency.
(d) An organization which is the exclusive representative of the employees in a foreign affairs agency is entitled to act for all employees in the agency, other than management officials and confidential employees, in collective dealings with agency management as provided for in this Order. It is responsible for representing the interests of all such employees without discrimination and without regard to organization membership.
(e) Nothing in this Ordershall:
(1) preclude an employee, regardless of whether he is a member of an organization, from bringing matters of personal concern to the attention of appropriate officials under applicable law, rule, regulations, or established foreign affairs agency policy; or from choosing his own representative in a grievance or other administrative adjudication;
(2) preclude or restrict consultations and dealings between a foreign affairs agency and a veterans' organization with respect to matters of particular interest to employees with veterans preference; or
(3) preclude a foreign affairs agency from consulting or dealing with a religious, social, fraternal, professional or other lawful association, not qualified for recognition, with respect to matters or policies which involve individual members of the association or are of particular