H. Rept. 113-154 - 113th Congress (2013-2014)
July 16, 2013, As Reported by the Oversight and Government Reform Committee

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House Report 113-154 - AMENDING TITLE 5, UNITED STATES CODE, TO REQUIRE THAT THE OFFICE OF PERSONNEL MANAGEMENT SUBMIT AN ANNUAL REPORT TO CONGRESS RELATING TO THE USE OF OFFICIAL TIME BY FEDERAL EMPLOYEES




[House Report 113-154]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    113-154

======================================================================

 
  AMENDING TITLE 5, UNITED STATES CODE, TO REQUIRE THAT THE OFFICE OF 
 PERSONNEL MANAGEMENT SUBMIT AN ANNUAL REPORT TO CONGRESS RELATING TO 
             THE USE OF OFFICIAL TIME BY FEDERAL EMPLOYEES

                                _______
                                

 July 16, 2013.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Issa, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 568]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 568) to amend title 5, United 
States Code, to require that the Office of Personnel Management 
submit an annual report to Congress relating to the use of 
official time by Federal employees, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     4
Explanation of Amendments........................................     4
Committee Consideration..........................................     4
Application of Law to the Legislative Branch.....................     5
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     5
Statement of General Performance Goals and Objectives............     5
Duplication of Federal Programs..................................     5
Disclosure of Directed Rule Makings..............................     5
Federal Advisory Committee Act...................................     5
Unfunded Mandate Statement.......................................     5
Earmark Identification...........................................     6
Duplication of Federal Programs..................................     6
Committee Estimate...............................................     6
Budget Authority and Congressional Budget Office Cost Estimate...     6
Changes in Existing Law Made by the Bill, as Reported............     7
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. REPORTING REQUIREMENT.

  (a) In General.--Section 7131 of title 5, United States Code, is 
amended by adding at the end the following:
  ``(e)(1)(A) Not later than March 31 of each calendar year, the Office 
of Personnel Management, in consultation with the Office of Management 
and Budget, shall submit to each House of Congress a report on the 
operation of this section during the fiscal year last ending before the 
start of such calendar year.
  ``(B) Not later than December 31 of each calendar year, each agency 
(as defined by section 7103(a)(3)) shall furnish to the Office of 
Personnel Management the information which such Office requires, with 
respect to such agency, for purposes of the report which is next due 
under subparagraph (A).
  ``(2) Each report by the Office of Personnel Management under this 
subsection shall include, with respect to the fiscal year described in 
paragraph (1)(A), at least the following information:
          ``(A) The total amount of official time granted to employees.
          ``(B) The average amount of official time expended per 
        bargaining unit employee.
          ``(C) The specific types of activities or purposes for which 
        official time was granted, and the impact which the granting of 
        such official time for such activities or purposes had on 
        agency operations.
          ``(D) The total number of employees to whom official time was 
        granted, and, of that total, the number who were not engaged in 
        any activities or purposes except activities or purposes 
        involving the use of official time.
          ``(E) The total amount of compensation (including fringe 
        benefits) afforded to employees in connection with activities 
        or purposes for which they were granted official time.
  ``(3) All information included in a report by the Office of Personnel 
Management under this subsection with respect to a fiscal year--
          ``(A) shall be shown both agency-by-agency and for all 
        agencies; and
          ``(B) shall be accompanied by the corresponding information 
        (submitted by the Office in its report under this subsection) 
        for the fiscal year before the fiscal year to which such report 
        pertains, together with appropriate comparisons and analyses.
  ``(4) For purposes of this subsection, the term `official time' means 
any period of time, regardless of agency nomenclature--
          ``(A) which may be granted to an employee under this chapter 
        (including a collective bargaining agreement entered into under 
        this chapter) to perform representational or consultative 
        functions; and
          ``(B) during which the employee would otherwise be in a duty 
        status.''.
  (b) Applicability.--The amendment made by subsection (a) shall be 
effective beginning with the report which, under the provisions of such 
amendment, is first required to be submitted by the Office of Personnel 
Management to each House of Congress by a date which occurs at least 6 
months after the date of the enactment of this Act.

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    Official time is paid time spent by federal employees 
performing representational functions such as negotiating 
collective bargaining agreements and settling grievances 
between labor and management instead of performing their 
assigned government work. Accurate, timely information on the 
use of official time is necessary for Congress to ensure such 
time contributes to the effective conduct of public business. 
H.R. 568 requires the Office of Personnel Management (OPM) to 
prepare and publish an annual report to Congress on the use of 
official time within the federal government.

                  BACKGROUND AND NEED FOR LEGISLATION

    Federal labor relations law currently permits the use of 
paid official time to negotiate collective bargaining 
agreements, participate in proceedings before the Federal Labor 
Relations Authority, and perform certain representational 
activities. The use of official time must be reasonable, 
necessary, and in the public interest.
    In 2011, taxpayers spent $156 million for federal employees 
to perform tasks for a labor union instead of their regular 
work,\1\ compared to $139 million in 2010,\2\ $129 million in 
2009,\3\ and approximately $96 million in 1998,\4\ when OPM 
provided the first report on official time usage to Congress.
---------------------------------------------------------------------------
    \1\U.S. Office of Personnel Management, Official Time Usage in the 
Federal Government, Fiscal Year 2011 Survey Responses, February 2013.
    \2\U.S. Office of Personnel Management, Official Time Usage in the 
Federal Government, Fiscal Year 2010 Survey Responses, October 2011.
    \3\U.S. Office of Personnel Management, Official Time Usage in the 
Federal Government, Fiscal Year 2009 Survey Responses, May 2011.
    \4\U.S. Office of Personnel Management, Official Time and Services 
Used by Unions Representing Federal Employees, November 1998. This 
report only collected data for the first 6 months of the 1998 calendar 
year, with the cost of official time reported at $48 million. The $96 
million annual figure was extrapolated by doubling the $48 million 
figure.
---------------------------------------------------------------------------
    When a federal worker is on official time, he or she is not 
available to perform the duties assigned to their regular 
position. The employing agency must then decide whether to 
delay the assignment, assign the task to other employees, or 
use overtime. There is no correlation between official time and 
an employee's regular duties. As a result, an employee using 
official time continues to receive pay and fringe benefits at 
the rate associated with their job classification rather than 
the rate commensurate with the duties being performed on 
official time.
    There are no current requirements, statutory or otherwise, 
for OPM to track federal employees' use of official time. OPM 
issued its first report on official time usage in 1998, 
pursuant to a requirement in the House report accompanying H.R. 
2378, the Treasury, Postal Service, and General Government 
Appropriations bill for FY1998.\5\
---------------------------------------------------------------------------
    \5\House Report to P.L. 105-240.
---------------------------------------------------------------------------
    As a matter of practice, OPM has continued to provide 
reports on the use of official time by federal workers since 
2002. However, OPM's current process results in untimely 
reports. For example, the fiscal year 2009 report was provided 
to Congress in May 2011 in response to a letter from the 
Committee, 20 months after the reporting period had ended.\6\ 
The fiscal year 2010 report was delivered to Congress in 
October 2011. The fiscal year 2011 report was provided in 
February 2013, following a letter from the Committee. In 
transmitting the fiscal year 2011 report, OPM stated 
``regrettably, a comprehensive report for FY2012 has not been 
developed and is not available at this time.''\7\
---------------------------------------------------------------------------
    \6\Letter from the Honorable John Berry, Director, Office of 
Personnel Management to the Honorable Darrell Issa and the Honorable 
Dennis A. Ross, Committee on Oversight and Government Reform, May 17, 
2011.
    \7\Letter from the Honorable John Berry, Director, Office of 
Personnel Management to The Honorable Darrell Issa, Committee on 
Oversight and Government Reform, February 14, 2013.
---------------------------------------------------------------------------
    Continued and timely release of official time information 
is necessary for the Committee and taxpayers to assess the 
extent to which such time contributes to the productivity and 
effectiveness of the federal government. H.R. 568 provides a 
mechanism to ensure Congress receives timely information and 
data necessary to evaluate whether official time is being used 
in the public interest and is contributing to the effective 
conduct of public business.

                          LEGISLATIVE HISTORY

    The Civil Service Reform Act of 1978\8\ allows federal 
employees to bargain collectively through labor organizations 
of their choice, and thereby participate with agency management 
in the development of personnel policies and other decisions 
that affect their working lives. Official time for collective 
bargaining and activities authorized by the Federal Labor 
Relations Authority is provided as a matter of statutory right. 
Official time for other purposes is negotiated in the amount 
the agency and union involved agree to be reasonable, 
necessary, and in the public interest.
---------------------------------------------------------------------------
    \8\P.L. 95-454, 5 U.S.C. Sec. 7101 et seq.
---------------------------------------------------------------------------
    H.R. 568 was introduced on February 6, 2013, by Rep. Dennis 
Ross (R-FL). The legislation is similar to legislation 
introduced by Rep. Ross in the 112th Congress, H.R. 2066. 
During the 112th Congress, the Committee held a hearing on June 
1, 2011 to review the use of official time by federal workers.

                           Section-by-Section


Section 1. Reporting requirement

    Requires OPM, in consultation with the Office of Management 
and Budget, to annually report to Congress on the use of 
official time by federal employees. Official time is time spent 
by federal employees performing representational work for a 
bargaining unit in lieu of their regularly assigned work.
    The report must include information on the specific types 
of activities for which official time was used--such as mid-
term negotiations, dispute resolution, or general labor-
management relations--as well as the impact granting official 
time had on agency operations. In describing the impact of 
official time on agency operations, agencies should include a 
discussion of how official time improved overall employee and 
agency productivity and performance against established goals 
and how official time improved agency operations. Such 
assessment may take into consideration such factors as 
productivity, efficiency, costs, employee performance and 
engagement, working conditions, work environment, labor-
management relations, workplacedisputes and litigation, and 
quality of products and services. OPM must also report on the number of 
agency employees who are on 100 percent official time.
    Reports are due March 31 following the reportable fiscal 
year.

                       Explanation of Amendments

    Mr. Issa offered an amendment in the nature of a substitute 
directing agencies to provide OPM the information needed to 
compile the official time report, and clarifying the required 
elements of the report. The amendment was agreed to by voice 
vote.

                        Committee Consideration

    On May 22, 2013, the Committee met in open session and 
ordered reported favorably the bill, H.R. 568, as amended, by 
voice vote, a quorum being present.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill requires OPM, in consultation with the Office of 
Management and Budget, to annually report to Congress on the 
use of official time by federal employees. As such this bill 
does not relate to employment or access to public services and 
accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                    Duplication of Federal Programs

    No provision of H.R. 568 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    H.R. 568 requires the Office of Personnel Management, in 
consultation with the Office of Management and Budget, to 
submit to Congress an annual report on official time usage 
within the federal government.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    H.R. 568 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                    Duplication of Federal Programs

    H.R. 568 does not establish or reauthorize a Program of the 
Federal Government known to be duplicative of another Federal 
program.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 568. However, clause 3(d)(3)(B) of that rule provides that 
this requirement does not apply when the Committee has included 
in its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 568 from the Director of 
Congressional Budget Office:

                                                     June 26, 2013.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 568, a bill to 
amend title 5, United States Code, to require that the Office 
of Personnel Management submit an annual report to Congress 
relating to the use of official time by federal employees.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 568--A bill to amend title 5, United States Code, to require that 
        the Office of Personnel Management submit an annual report to 
        Congress relating to the use of official time by federal 
        employees

    H.R. 568 would require the Office of Personnel Management 
(OPM) to provide annual reports to the Congress on the use of 
``official time'' by federal employees who also serve as union 
officers. Official time is paid time off from assigned 
government duties to represent a labor union.
    CBO estimates that implementing the legislation would have 
no significant impact on the federal budget because it would 
not significantly add to administrative costs. Most of the 
information needed for the reports required under the bill is 
currently collected. The legislation also could affect direct 
spending by agencies not funded through annual appropriations; 
therefore, pay-as-you-go procedures apply. CBO estimates, 
however, that any net increase in spending by those agencies 
would not be significant. Enacting the bill would not affect 
revenues.
    H.R. 568 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *


PART III--EMPLOYEES

           *       *       *       *       *       *       *


SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS

           *       *       *       *       *       *       *


CHAPTER 71--LABOR-MANAGEMENT RELATIONS

           *       *       *       *       *       *       *


           SUBCHAPTER IV--ADMINISTRATIVE AND OTHER PROVISIONS

Sec. 7131. Official time

  (a) * * *

           *       *       *       *       *       *       *

  (e)(1)(A) Not later than March 31 of each calendar year, the 
Office of Personnel Management, in consultation with the Office 
of Management and Budget, shall submit to each House of 
Congress a report on the operation of this section during the 
fiscal year last ending before the start of such calendar year.
  (B) Not later than December 31 of each calendar year, each 
agency (as defined by section 7103(a)(3)) shall furnish to the 
Office of Personnel Management the information which such 
Office requires, with respect to such agency, for purposes of 
the report which is next due under subparagraph (A).
  (2) Each report by the Office of Personnel Management under 
this subsection shall include, with respect to the fiscal year 
described in paragraph (1)(A), at least the following 
information:
          (A) The total amount of official time granted to 
        employees.
          (B) The average amount of official time expended per 
        bargaining unit employee.
          (C) The specific types of activities or purposes for 
        which official time was granted, and the impact which 
        the granting of such official time for such activities 
        or purposes had on agency operations.
          (D) The total number of employees to whom official 
        time was granted, and, of that total, the number who 
        were not engaged in any activities or purposes except 
        activities or purposes involving the use of official 
        time.
          (E) The total amount of compensation (including 
        fringe benefits) afforded to employees in connection 
        with activities or purposes for which they were granted 
        official time.
  (3) All information included in a report by the Office of 
Personnel Management under this subsection with respect to a 
fiscal year--
          (A) shall be shown both agency-by-agency and for all 
        agencies; and
          (B) shall be accompanied by the corresponding 
        information (submitted by the Office in its report 
        under this subsection) for the fiscal year before the 
        fiscal year to which such report pertains, together 
        with appropriate comparisons and analyses.
  (4) For purposes of this subsection, the term ``official 
time'' means any period of time, regardless of agency 
nomenclature--
          (A) which may be granted to an employee under this 
        chapter (including a collective bargaining agreement 
        entered into under this chapter) to perform 
        representational or consultative functions; and
          (B) during which the employee would otherwise be in a 
        duty status.

           *       *       *       *       *       *       *