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Section-by-Section Analysis of Executive Order ll G36 on Employee-Management Relations in the Foreign Service of the United States

Preamble. The preamble recognizes, in a manner similar to Executive Order No. 11491 (34 F. R. l7605), as amended by Executive Order No. llelé (36 F. R. l7319), the public interests to be served by an effective employee-management relations program, such as improved employee performance and efficiency and the well-being of employees. Since the relationships envisaged by the subsequent provisions of Executive Order lló36 are somewhat different than those provided for in Executive Order ll 491, and since organizations other than labor organizations will be able to participate in this program, the broader term "employee-management relations" has been used in place of "labor-management relations." The preamble also recognizes that a distinct framework for employee-management relations is required by the special characteristics of the Foreign Service.

Section l. Policy. The general policy statement
set out in paragraph (a) assures to each employee
the right to form, join or assist an organization
in language virtually identical to that contained
in Executive Order No. ll 491. Similarly, paragraph
(b) limits the participation of employees whose
activities on behalf of an organization might
conflict with their duties in the same way as does
section 1 (b) of Executive Order No. 11491. The
only substantive difference lies in the categories
of employees who are excluded from participation
in the management of an organization or from acting
as its representative. Executive Order lle, 36 ex-
cludes only management officials and their confi-
dential assistants, as defined in section 2.
These are much narrower categories than Executive
Order ll 491's exclusions of all supervisors and,
therefore, will permit many more employees to

participate in the leadership of organizations.
The more limited exclusions are consonant with the
system of dealings provided in this Order.

Section 2. Definitions. Paragraph (a) identifies the foreign affairs agencies as the Department of State, the United States Information Agency and the Agency for International Development. Reference is made to AID's successor or successors in view of the legislative proposals concerning this matter that have been submitted to the Congress by the Executive Branch. See S. le 56, S. le 57, 92d Cong. , 1st Sess. (1971).

Paragraph (b) defines "employee" so as to include Foreign Service personnel serving under the statutory authorities applicable to all three foreign affairs agencies. In particular, it covers employees who enter the Foreign Service on assignment from Federal agencies other than the foreign affairs agencies pursuant to section 522 of the Foreign Service Act of l946, as amended (22 USC 922) or section 625 (d) of the Foreign Assistance Act of 1961, as amended (22 USC 2385 (d)) as well as Foreign Service personnel who are assigned to other agencies pursuant to section 57l (a) of the Foreign Service Act (22 USC 961 (a)). The definition does not cover alien employees at Foreign Service posts abroad, whose conditions of employment are largely determined on a country-bycountry basis by reference to locally prevailing practices. Nor does it cover consular agents, who are individuals of United States or foreign nationality residing at locations abroad where U.S. interests do not warrant the establishment of a Foreign Service post and who perform certain consular functions on a part-time basis. The definition does not include employees appointed under authority of the Peace Corps Act (22 USC 2501-2523).

The definition of "management official" in paragraph (c) is intended to include officers in charge of United States diplomatic and consular

establishments under subparagraph (l). The terms "chief of mission" and "principal officer" are defined in section l2l of the Foreign Service Act of 1946, as amended (22 USC 802). For purposes of this Order, however, the term "principal officer" would also be used to describe those principal representatives of foreign affairs agencies at posts abroad who would not otherwise be covered by the definition but who clearly would be management officials.

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Subparagraph (2) covers persons serving in positions to which they have been appointed by the President. Although Foreign Service officers and Foreign Service Information officers are appointed by the President by and with the advice and consent of the Senate, they are appointed to classes rather than to positions and would not, therefore, be covered by this subparagraph. The distinction between appointment to an office and appointment to a position is noted in sections 57l (b), 631 and 632 of the Foreign Service Act (22 USC 961 (b), l001 and loo.2). AID mission directors and their deputies would be covered by this subparagraph in view of the provisions of section 631 (b) of the Foreign Assistance Act (22 USC 239 l (b)).

Subparagraph (3) in the definition of "management official" covers persons serving in positions of comparable rank to chiefs of mission, principal officers and Presidential appointees. In order to be eligible for appointment to the rank of career minister or career minister for information, an officer must have served as a chief of mission or in a position of comparable importance. Moreover, the heads of certain bureaus within the foreign affairs agencies have been administratively designated as holding rank equivalent to an assistant agency head. Therefore, the concept of positions "of comparable importance" has a precise meaning within the foreign affairs agencies.

Reference to "formulation" of personnel policies and programs in subparagraph (5) is intended to permit representation of employees engaged in routine administrative and clerical functions relating to personnel matters.

The term "confidential emplovee" is defined in paragraph (d) to include the confidential assistants of only those management officials who formulate, determine or effectuate personnel policies and programs. The definition is intended to permit staff assistants of management officials who are

not engaged in personnel policy matters to be represented under the Order.

The definition of "organization" in paragraph (e) is similar to the definition of "labor organization" contained in section 2 (e) of Executive Order ll 491, as amended.

Paragraph (f) defines "Secretary" as the Secretary of State.

Paragraph (g) defines "Board" as the Board of the Foreign Service. The Board is established by and its functions are specified in Executive Order No. 11264 of December 31, 1965 (31 F. R. 2), as amended by Executive Order No. ll 434 of November 8, 1968 (33 F. R. le 485). The membership of the Board is prescribed as follows by Executive Order No. 11264, as amended:

"(1) Five officials of the Department of
State, each of whom shall be designated as a
member of the Board by the Secretary and one
of whom shall be so designated from among the
officials of the Agencv for International
Development.

"(2) One official of each of the following who in each case shall be designated as a member of the Board by the head of the department or agency concerned :

(i) The Department of Commerce
(ii) The Department of Labor
(iii) Such other executive departments and
agencies as shall be designated from
time to time by the Secretarv, each
of which shall have one member on
the Board

"(3) Two officials of the United States Information Agency who shall be designated as members of the Board by the Director of the United States Information Agency.

" (4) The Chairman of the United States Civil Service Commission."

In addition a representative of the Office of Management and Budget participates in the activities of the Board as a nonvoting observer. All Board members and partićipants are required to hold the rank of assistant secretary or above, or a position of comparable responsibility. The Board is chaired by the Under Secretary of State.

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Paragraph (h) defines "Commission" as the Fmplovee Management Relations Commission established under

section 5 of the Order. The Commission is a com-
mittee of the Board of the Foreign Service composed
of Department of Labor, Civil Service Commission and
Office of Management and Budget representatives. It
will perform functions relating to the administration
of the Order as specified in section 5.

Paragraph (i) defines "public member" as a member of a disputes panel under section 6 or a grievance panel under section lo who is not a Government employee.

Section 3. Application. Virtually all officers and employees of the Foreign Service to whom the Order will apply hold sensitive positions under the criteria of Executive Order No. 10450, as amended and hold security clearances. In view of the sensitivity of their

functions in all fields relating to foreign affairs, it is both impracticable and unnecessary to provide for broad, lasting exclusions from the right to be represented of particular categories of personnel such as those those engaged in intelligence or security work. Instead, the Order reserves to the head of each foreign affairs agency the authoritv to suspend temporarilv anv provision of the Order with respect to any post, bureau, office, or activity in the United States or abroad, when this is necessary in emergencv situations. The Order specifically provides that such suspension will not operate as a denial of access to the grievance procedures even though the consideration of a grievance might be temporarily suspended under this authority.

Section 4. Board of the Foreign Service. Paragraph (a) describes the functions of the Board in administering the Order. The Board will consider major policy issues arising under the Order, appeals on substantive aspects of personnel policy, proposed amendments to the Order and other matters as it deems appropriate. In addition, the Board will make recommendations on regulations for the implementation of the Order, interpret the Order and the Secretarv's regulations except as provided in section 5, and perform such additional functions as the Secretary may from time to time prescribe. The Board's interpretative functions are limited so as not to conflict with functions of the Employee-Management Relations Commission established under section 5.

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