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Electronic Code of Federal Regulations

e-CFR Data is current as of April 14, 2014

Title 29: Labor


PART 1400—STANDARDS OF CONDUCT, RESPONSIBILITIES, AND DISCIPLINE


Contents

Subpart A—General

§1400.735-3   Advice and counseling service.

Subpart B—Employees: Ethical and Other Conduct and Responsibilities

§1400.735-12   Outside employment, business activities, or interests (paid or unpaid).
§1400.735-19   Influencing Members of Congress.
§1400.735-20   Code of Professional Conduct for Labor Mediators.
§1400.735-21   Miscellaneous statutory provisions.

Subpart F—Disciplinary Actions and Penalties

§1400.735-60   Disciplinary actions.
§1400.735-61   Notice to and appeal of employee.
Appendix to Part 1400—Code of Professional Conduct for Labor Mediators

Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Supp.; 5 CFR 735.104.

Source: 33 FR 5765, Apr. 13, 1968, unless otherwise noted.

Subpart A—General

§1400.735-3   Advice and counseling service.

The Director will designate a counselor for the Service on all matters relating to the conduct and responsibilities of employees, and special Government employees, under the Executive order. The counselor is responsible for providing individual employees with interpretations on questions of conflicts of interest, and other matters covered by this part. (Due to the small size of the Federal Mediation and Conciliation Service, it is unrealistic to designate deputy counselors, and therefore, all questions concerning matters covered in this part should be directed to the one counselor appointed by the Director.)

Subpart B—Employees: Ethical and Other Conduct and Responsibilities

§1400.735-12   Outside employment, business activities, or interests (paid or unpaid).

(a) Outside employment. (1) An employee shall not engage in outside employment or other outside activity not compatible with the full and proper discharge of the duties and responsibilities of his Government employment.

(2) Outside employment limitations in paragraph (a)(1) of this section do not preclude an employee from:

(i) Receipt of a bona fide reimbursement, unless prohibited by law, for actual expenses for travel and such other necessary subsistence as is compatible with this part for which no Government payment or reimbursement is made. However, this paragraph does not allow an employee to be reimbursed, or payment to be made on his behalf, for excessive personal living expenses, gifts, entertainment, or other personal benefits, nor does it allow an employee to be reimbursed by a person for travel on official business under agency order.

(ii) Participation in the acitivities of national or State political parties not prohibited by law.

(iii) Participation in the affairs of, or acceptance of an award for a meritorious public contribution or achievement given by a charitable, religious, professional, social, fraternal, nonprofit educational and recreational, public service, or civic organization.

(3) Incompatible activities referred to in paragraph (a)(1) of this section include, but are not limited to:

(i) Acceptance of a fee, compensation, gift, payment of expense, or any other thing of monetary value in circumstances in which acceptance may result in, or create the appearance of, conflicts of interests; or

(ii) Outside employment if it is determined that engaging in the proposed outside activity might:

(a) Influence or conflict with the employee's decisions or actions in planning, interpreting, or executing policies, programs, and work assignments of the Service;

(b) Injure relations of the Service with the public;

(c) Impair the employee's physical capacity to render proper and efficient service at all times;

(d) Interfere with the impartial performance or jeopardize acceptability of the employee in his work;

(e) Conflict with the employee's normal office hours, including an allowance for sufficient time for travel to place of outside employment or activity. (Normal office hours will be considered as those which are established for the specific office in which the employee works.) In the absence of extenuating circumstances, approval generally will not be granted where the outside activity requires presence of the employee prior to 6 p.m.

Note: Teaching activities are not approved automatically, but rather on the basis of time required, appropriate subject matter, etc.

(4) The Service, as a matter of policy, does not look upon any outside employment or business activity, including concurrent employment by the Federal Mediation and Conciliation Service and any other Governmental political subdivision or agency, as being consistent with the best interests of the Service.

(5) Employees may not engage in any outside employment, including teaching, lecturing, or writing, which might reasonably result in a conflict of interest, or an apparent conflict of interest, between the private interests of the employee and his official government duties and responsibilities. No employee shall directly or indirectly accept, engage in, or continue in any outside employment or business activity, full- or part-time, paid or unpaid, without advance written approval (including teaching or lecturing).

(b) Private compensation. An employee shall not receive any salary or anything of monetary value from a private source as compensation for his services to the Government (18 U.S.C. 209).

(c) Teaching, writing and lecturing. (1) Teaching, writing and lecturing by Federal employees are generally to be encouraged so long as the laws, general standards, and regulations pertaining to conflicts of interest and the standards and regulations in this part applying to outside employment are observed. Teaching commitments will generally be limited to one class, course, or assignment during a concurrent period. These activities frequently serve to enhance the employee's value to the Service, as well as to increase the spread of knowledge and information in our society. Such activities, if remuneration is anticipated, must not be dependent on information obtained as a result of the employee's official government position if such information is not available to others, at least on request.

(2) This provision does not, of course, prevent the Director from authorizing an employee to base his writings or lectures on nonpublic materials in the Federal Mediation and Conciliation Service files (not involving national security) when this will be done in the public interest. Personal research relating to mediation, collective bargaining and labor management relations is encouraged as a progressive step in self-development. The writing of articles in this area, which may be released or submitted for publication, is also encouraged. Research and writing are not considered official activity, and therefore may not be undertaken on duty time; and the author may receive compensation for publication thereof. Advance approval by the Director, before undertaking the research or writing, is not required. However, when such research is undertaken, or such article is being written on the basis of an official assignment, the work will be performed on duty time and the product will be the property of the Service.

(3) If any type of article, when published or released, will identify the author in any manner as an employee of the Service, such identification necessarily implies that the article reflects either the official policy or the philosophies of the Service. For that reason, it must be submitted to the Director before release or publication, or it must contain a disclaimer phrase to the effect that the article or statement does not necessarily reflect the official policy or philosophies of the Service.

(d) Procedure for approval of outside employment or teaching. Clerical and administrative employees' approval for outside activity shall be in writing and may be granted by the Regional Director, if a regional employee, or by the Director of Administrative Management, if a national office employee. Approval for such outside activity for all other employees of the Service shall be granted by the Director or his designee. Requests for approval shall be made in writing through the employee's supervisor and must contain the following:

(1) The name and address of the employer or business activity;

(2) The exact nature of the work or employment;

(3) Working hours.

[33 FR 5765, Apr. 13, 1968, as amended at 58 FR 35377, July 1, 1993]

§1400.735-19   Influencing Members of Congress.

No money appropriated to the Service shall be used by any employee of the Service to pay for any personal service, printed or written matter, or other devices intended to influence any Member of Congress regarding any legislation or appropriation before the Congress.

§1400.735-20   Code of Professional Conduct for Labor Mediators.

In 1964, a Code of Professional Conduct for Labor Mediators was drafted by a Federal-State Liaison Committee and approved by the Service and the Association of Labor Mediation Agencies at its annual meeting. It is expected that mediators in the Federal Mediation and Conciliation Service will make themselves familiar with this Code and will conduct themselves in accordance with the responsibilities outlined therein. The complete narrative of the Code appears in the appendix to this part.

§1400.735-21   Miscellaneous statutory provisions.

Each employee shall acquaint himself with the statutes that relate to his ethical and other conduct as an employee of the Federal Mediation and Conciliation Service and of the Government. The attention of all employees is directed to the following statutory provisions and to the accompanying chart of penalties and statutory references:

(a) House Concurrent Resolution 175, 85th Congress, 2d session, 72 Stat. B12, the “Code of Ethics for Government Service.”

(b) Chapter 11 of title 18, United States Code, relating to bribery, graft, and conflicts of interest, as appropriate to the employees concerned.

(c) The prohibition against lobbying with appropriated funds (18 U.S.C. 1913).

(d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 18 U.S.C. 1918).

(e) The prohibition against the employment of a member of a Communist organization (50 U.S.C. 784).

(f) The prohibitions against (1) the disclosure of classified information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of confidential information (18 U.S.C. 1905).

(g) The provisions relating to the habitual use of intoxicants to excess (5 U.S.C. 7352).

(h) The prohibition against the misuse of a Government vehicle (31 U.S.C. 638a (c)).

(i) The prohibition against the misuse of the franking privilege (18 U.S.C. 1719).

(j) The prohibition against the use of deceit in an examination of personnel action in connection with Government employment (18 U.S.C. 1917).

(k) The prohibition against fraud or false statements in a Government matter (18 U.S.C. 1001).

(l) The prohibition against mutilating or destroying a public record (18 U.S.C. 2071).

(m) The prohibition against counterfeiting and forging transportation requests (18 U.S.C. 508).

(n) The prohibitions against (1) embezzlement of Government money or property (18 U.S.C. 641); (2) failing to account for public money (18 U.S.C. 643); and (3) embezzlement of the money or property of another person in the possession of an employee by reason of his employment (18 U.S.C. 654).

(o) The prohibition against unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285).

(p) The prohibitions against political activities in subchapter III of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603, 607, and 608.

(q) The prohibition against an employee acting as the agent of a foreign principal registered under the Foreign Agents Registration Act (18 U.S.C. 219).

(r) Penalties: The following table, copied from the Federal Personnel Manual, lists maximum penalties for some of the more serious offenses.

ProhibitionStatute and United States CodeMaximum penalty
A-1. Gifts to official superiors5 U.S.C. 7351Removal.
A-2. Conflicts of interest:
a. Receiving compensation in relation to claims contracts, etc18 U.S.C. 203$10,000 fine; 2 years imprisonment or both; and removal.
b. Prosecuting claims against and other matters affecting the Government18 U.S.C. 205$10,000 fine; 2 years imprisonment or both.
c. Prosecuting claims involving matters connected with former duties—disqualification of partners18 U.S.C. 207$10,000 fine; 2 years imprisonment or both.
d. Interested persons acting as Government agents18 U.S.C. 208$10,000 fine; 2 years imprisonment or both.
e. Salaries from other than Government sources18 U.S.C. 209$5,000 fine; 1 year imprisonment or both.
A-3. Lobbying with appropriated funds18 U.S.C. 1913$500 fine; 1 year imprisonment or both; and removal.
A-4. Denial of rights to petition Congress5 U.S.C. 7102No specific penalty provided.
A-5. Failure to make return or report18 U.S.C. 2075$1,000 fine.
A-6. Disloyalty and striking5 U.S.C. 7311; 18 U.S.C. 1918$1,000 fine, 1 year and a day imprisonment or both; and removal.
A-7. Employment of member of proscribed communist organization50 U.S.C. 784 et seq$10,000 fine; 5 years imprisonment or both; and removal.
A-8. Disclosure of classified information18 U.S.C. 798; 50 U.S.C. 783$10,000 fine; 10 years imprisonment or both; and removal.
A-9. Disclosure of confidential information18 U.S.C. 1905$1,000 fine; 1 year imprisonment or both; and removal.
A-10. Habitual use of intoxicants to excess5 U.S.C. 7352Removal.
A-11. Misuse of Government vehicles31 U.S.C. 638a(c)Removal.
A-12. Misuse of franking privilege18 U.S.C. 1719$300 fine.
A-13. Deceit in examinations and personnel actions5 U.S.C. 1917$1,000 fine; 1 year imprisonment or both.
A-14. Fraud and false statements18 U.S.C. 1001$10,000 fine; 5 years imprisonment or both.
A-15. Unlawful mutilating or destroying public records18 U.S.C. 2071(b)$2,000 fine; 3 years imprisonment or both; and removal.
A-16. Bribery and graft:
a. Bribery of public officials18 U.S.C. 201$20,000 fine or three times the money or thing received, whichever is greater; 15 years imprisonment or both; and removal.
b. Acceptance or solicitation to obtain appointive office18 U.S.C. 211$1,000 fine; 1 year imprisonment or both.
A-17. Counterfeiting and forgery of transportation requests18 U.S.C. 508$5,000 fine; 10 years imprisonment or both.
A-18. Embezzlement and theft:
a. Taking money, property, or records18 U.S.C. 641$10,000 fine; 10 years imprisonment or both.
b. Failure to render accounts for public money18 U.S.C. 643Fine equal to amount embezzled; imprisonment not more than 10 years or both.
c. Wrongfully converting property of another18 U.S.C. 654Same as penalty immediately above.
A-19. Taking or using papers related to claims18 U.S.C. 285$5,000 fine; 5 years imprisonment or both.

Subpart F—Disciplinary Actions and Penalties

§1400.735-60   Disciplinary actions.

The Service shall take prompt disciplinary action against an employee committing prohibited activity, or whose conduct is prejudicial to the best interests of the Service, or of a nature to bring discredit to it. There are four major types of disciplinary action possible, following the above proceedings.

(a) Reprimand. An official reprimand usually shall be issued to an employee or special Government employee for a first offense which is not serious.

(b) Suspension. Under Civil Service and Federal Mediation and Conciliation Service regulations, an employee or special Government employee may be suspended without pay during the course of an investigation of alleged criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct. Also, an employee may be suspended without pay for a definite period of time because of some offense of a less serious nature for which more drastic action is not justified.

(c) Demotion. When such action will “promote the efficiency of the Service,” an employee or special Government employee may be demoted because of some offense for which more drastic action is not justified.

(d) Separation. The Service is responsible for the prompt dismissal of unsatisfactory, incompetent, or unfit employees. Separation (dismissal or removal) can be the penalty for a single breach of conduct that is extremely serious in nature.

§1400.735-61   Notice to and appeal of employee.

The Director of Administrative Management will prepare charges and institute proceedings, which in all cases will be in accordance with Civil Service procedures for disciplinary actions against status employees. Such proceedings will include notification to the employee of his appeal rights.

Appendix to Part 1400—Code of Professional Conduct for Labor Mediators

preamble

The practice of mediation is a profession with ethical responsibilities and duties. Those who engage in the practice of mediation must be dedicated to the principles of free and responsible collective bargaining. They must be aware that their duties and obligations relate to the parties who engage in collective bargaining, to every other mediator, to the agencies which administer the practice of mediation, and to the general public.

Recognition is given to the varying statutory duties and responsibilities of the city, State and Federal agencies. This code, however, is not intended in any way to define or adjust any of these duties and responsibilities, nor is it intended to define when and in what situations mediators from more than one agency should participate. It is, rather, a personal code relating to the conduct of the individual mediator.

This code is intended to establish principles applicable to all professional mediators employed by city, State or Federal agencies or to mediators privately retained by parties.

I. The responsibility of the mediator to the parties. The primary responsibility for the resolution of a labor dispute rests upon the parties themselves. The mediator at all times should recognize that the agreements reached in collective bargaining are voluntarily made by the parties. It is the mediator's responsibility to assist the parties in reaching a settlement.

It is desirable that agreement be reached by collective bargaining without mediation assistance. However, public policy and applicable statutes recognize that mediation is the appropriate form of governmental participation in cases where it is required. Whether and when a mediator should intercede will normally be influenced by the desires of the parties. Intercession by a mediator on his own motion should be limited to exceptional cases.

The mediator must not consider himself limited to keeping peace at the bargaining table. His role should be one of being a resource upon which the parties may draw and, when appropriate, he should be prepared to provide both procedural and substantive suggestions and alternatives which will assist the parties in successful negotiations.

Since mediation is essentially a voluntary process, the acceptability of the mediator by the parties as a person of integrity, objectivity, and fairness is absolutely essential to the effective performance of the duties of the mediator. The manner in which the mediator carries out his professional duties and responsibilities will measure his usefulness as a mediator. The quality of his character as well as his intellectual, emotional, social and technical attributes will reveal themselves by the conduct of the mediator and his oral and written communications with the parties, other mediators and the public.

II. The responsibility of the mediator toward other mediators. A mediator should not enter any dispute which is being mediated by another mediator or mediators without first conferring with the person or persons conducting such mediation. The mediator should not intercede in a dispute merely because another mediator may also be participating. Conversely, it should not be assumed that the lack of mediation participation by one mediator indicates a need for participation by another mediator.

In those situations where more than one mediator is participating in a particular case, each mediator has a responsibility to keep the others informed of developments which are essential to a cooperative effort, and should extend every possible courtesy to his fellow mediator.

The mediator should carefully avoid any appearance of disagreement with or criticism of his fellow mediator. Discussions as to what positions and actions mediators should take in particular cases should be carried on solely between or among the mediators.

III. The responsibility of the mediator toward his agency and his profession. Agencies responsible for providing mediation assistance to parties engaged in collective bargaining are a part of government. The mediator must recognize that, as such, he is part of government. The mediator should constantly bear in mind that he and his work are not judged solely on an individual basis but that he is also judged as a representative of his agency. Any improper conduct or professional shortcoming, therefore, reflects not only on the individual mediator but upon his employer and, as such, jeopardizes the effectiveness of his agency, other government agencies, and the acceptability of the mediation process.

The mediator should not use his position for private gain or advantage, nor should he engage in any employment, activity or enterprise which will conflict with his work as a mediator, nor should he accept any money or thing of value for the performance of his duties—other than his regular salary—or incur obligations to any party which might interfere with the impartial performance of his duties.

IV. The responsibility of the mediator toward the public. Collective bargaining is in essence a private, voluntary process. The primary purpose of mediation is to assist the parties to achieve a settlement. Such assistance does not abrogate the rights of the parties to resort to economic and legal sanctions. However, the mediation process may include a responsibility to assert the interest of the public that a particular dispute be settled; that a work stoppage be ended; and that normal operations be resumed. It should be understood, however, that the mediator does not regulate or control any of the content of a collective bargaining agreement.

It is conceivable that a mediator might find it necessary to withdraw from a negotiation, if it is patently clear that the parties intend to use his presence as implied governmental sanction for an agreement obviously contrary to public policy.

It is recognized that labor disputes are settled at the bargaining table; however, the mediator may release appropriate information with due regard (1) to the desires of the parties, (2) to whether that information will assist or impede the settlement of the dispute and (3) to the needs of an informed public.

Publicity shall not be used by a mediator to enhance his own position or that of his agency. Where two or more mediators are mediating a dispute, public information should be handled through a mutually agreeable procedure.

V. Responsibility of the mediator toward the mediation process. Collective bargaining is an established institution in our economic way of life. The practice of mediation required the development of alternatives which the parties will voluntarily accept as a basis for settling their problems. Improper pressures which jeopardize voluntary action by the parties should not be a part of mediation.

Since the status, experience, and ability of the mediator lend weight to his suggestions and recommendations, he should evaluate carefully the effect of his suggestions and recommendations and accept full responsibility for their honesty and merit.

The mediator has a continuing responsibility to study industrial relations to improve his skills and upgrade his abilities.

Suggestions by individual mediators or agencies to parties, which give the implication that transfer of a case from one mediation “forum” to another will produce better results, are unprofessional and are to be condemned.

Confidential information acquired by the mediator should not be disclosed to others for any purpose, or in a legal proceeding or be used directly or indirectly for the personal benefit or profit of the mediator.

Bargaining positions, proposals or suggestions given to the mediator in confidence during the course of bargaining for his sole information, should not be disclosed to another party without first securing permission from the party or person who gave it to him.

[31 FR 5423, Apr. 6, 1966]



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