6 U.S.C. § 412 — Labor-management relations

Page 218 TITLE 6—DOMESTIC SECURITY § 411 Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Oversight and Reform of House of Rep- resentatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023. PART E—HUMAN RESOURCES MANAGEMENT § 411. Establishment of human resources manage- ment system (a) Authority (1) Sense of Congress It is the sense of Congress that— (A) it is extremely important that employ- ees of the Department be allowed to partici- pate in a meaningful way in the creation of any human resources management system affecting them; (B) such employees have the most direct knowledge of the demands of their jobs and have a direct interest in ensuring that their human resources management system is conducive to achieving optimal operational efficiencies; (C) the 21st century human resources man- agement system envisioned for the Depart- ment should be one that benefits from the input of its employees; and (D) this collaborative effort will help se- cure our homeland. (2), (3) Omitted (b) Effect on personnel (1) Nonseparation or nonreduction in grade or compensation of full-time personnel and part-time personnel holding permanent po- sitions Except as otherwise provided in this chap- ter, the transfer under this chapter of full- time personnel (except special Government employees) and part-time personnel holding permanent positions shall not cause any such employee to be separated or reduced in grade or compensation for 1 year after the date of transfer to the Department. (2) Positions compensated in accordance with Executive Schedule Any person who, on the day preceding such person’s date of transfer pursuant to this chapter, held a position compensated in ac- cordance with the Executive Schedule pre- scribed in chapter 53 of title 5 and who, with- out a break in service, is appointed in the De- partment to a position having duties com- parable to the duties performed immediately preceding such appointment shall continue to be compensated in such new position at not less than the rate provided for such position, for the duration of the service of such person in such new position. (3) Coordination rule Any exercise of authority under chapter 97 of title 5, including under any system estab- lished under such chapter, shall be in conform- ance with the requirements of this subsection. (Pub. L. 107–296, title VIII, § 841, Nov. 25, 2002, 116 Stat. 2229.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b)(1), (2), was in the original ‘‘this Act’’, meaning Pub. L. 107–296, Nov. 25, 2002, 116 Stat. 2135, known as the Homeland Security Act of 2002, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 101 of this title and Tables. CODIFICATION Section is comprised of section 841 of Pub. L. 107–296. Subsec. (a)(2), (3) of section 841 of Pub. L. 107–296 en- acted chapter 97 (§ 9701) of Title 5, Government Organi- zation and Employees. Statutory Notes and Related Subsidiaries INDEPENDENT INVESTIGATION AND IMPLEMENTATION PLAN Pub. L. 117–81, div. F, title LXIV, § 6404, Dec. 27, 2021, 135 Stat. 2400, provided that: ‘‘(a) IN GENERAL.—Not later than 120 days after the date of the enactment of this Act [Dec. 27, 2021], the Comptroller General of the United States shall inves- tigate whether the application in the Department of Homeland Security of discipline and adverse actions for managers and non-managers are administered in an eq- uitable and consistent manner that results in the same or substantially similar disciplinary outcomes across the Department that are appropriately calibrated to address the identified misconduct, taking into account relevant aggravating and mitigating factors. ‘‘(b) CONSULTATION.—In carrying out the investiga- tion described in subsection (a), the Comptroller Gen- eral of the United States shall consult with the Under Secretary for Management of the Department of Home- land Security and the employee engagement steering committee established pursuant to subsection (b)(1) of section 711 of the Homeland Security Act of 2002 [6 U.S.C. 351(b)(1)] (as added by section 6401(a) of this Act). ‘‘(c) ACTION BY UNDER SECRETARY FOR MANAGEMENT.— Upon completion of the investigation described in sub- section (a), the Under Secretary for Management of the Department of Homeland Security shall review the findings and recommendations of such investigation and implement a plan, in consultation with the em- ployee engagement steering committee established pur- suant to subsection (b)(1) of section 711 of the Home- land Security Act of 2002, to correct any relevant defi- ciencies identified by the Comptroller General of the United States in such investigation. The Under Sec- retary for Management shall direct the employee en- gagement steering committee to review such plan to inform committee activities and action plans author- ized under such section 711 [6 U.S.C. 351].’’ § 412. Labor-management relations (a) Limitation on exclusionary authority (1) In general No agency or subdivision of an agency which is transferred to the Department pursuant to this chapter shall be excluded from the cov- erage of chapter 71 of title 5 as a result of any order issued under section 7103(b)(1) of such title 5 after June 18, 2002, unless— (A) the mission and responsibilities of the agency (or subdivision) materially change; and (B) a majority of the employees within such agency (or subdivision) have as their primary duty intelligence, counterintel- ligence, or investigative work directly re- lated to terrorism investigation. Page 219 TITLE 6—DOMESTIC SECURITY § 413 1 So in original. Probably should be ‘‘agency’’. 2 See References in Text note below. (2) Exclusions allowable Nothing in paragraph (1) shall affect the ef- fectiveness of any order to the extent that such order excludes any portion of an agency or subdivision of an agency as to which— (A) recognition as an appropriate unit has never been conferred for purposes of chapter 71 of such title 5; or (B) any such recognition has been revoked or otherwise terminated as a result of a de- termination under subsection (b)(1). (b) Provisions relating to bargaining units (1) Limitation relating to appropriate units Each unit which is recognized as an appro- priate unit for purposes of chapter 71 of title 5 as of the day before the effective date of this chapter (and any subdivision of any such unit) shall, if such unit (or subdivision) is trans- ferred to the Department pursuant to this chapter, continue to be so recognized for such purposes, unless— (A) the mission and responsibilities of such unit (or subdivision) materially change; and (B) a majority of the employees within such unit (or subdivision) have as their pri- mary duty intelligence, counterintelligence, or investigative work directly related to ter- rorism investigation. (2) Limitation relating to positions or employ- ees No position or employee within a unit (or subdivision of a unit) as to which continued recognition is given in accordance with para- graph (1) shall be excluded from such unit (or subdivision), for purposes of chapter 71 of such title 5, unless the primary job duty of such po- sition or employee— (A) materially changes; and (B) consists of intelligence, counterintel- ligence, or investigative work directly re- lated to terrorism investigation. In the case of any positions within a unit (or subdivision) which are first established on or after the effective date of this chapter and any employees first appointed on or after such date, the preceding sentence shall be applied disregarding subparagraph (A). (c) Waiver If the President determines that the applica- tion of subsections (a), (b), and (d) would have a substantial adverse impact on the ability of the Department to protect homeland security, the President may waive the application of such subsections 10 days after the President has sub- mitted to Congress a written explanation of the reasons for such determination. (d) Coordination rule No other provision of this chapter or of any amendment made by this chapter may be con- strued or applied in a manner so as to limit, su- persede, or otherwise affect the provisions of this section, except to the extent that it does so by specific reference to this section. (e) Rule of construction Nothing in section 9701(e) of title 5 shall be considered to apply with respect to any agency or subdivision of any agency, which is excluded from the coverage of chapter 71 of title 5 by vir- tue of an order issued in accordance with section 7103(b) of such title 5 and the preceding provi- sions of this section (as applicable), or to any employees of any such agency or subdivision or to any individual or entity representing any such employees or any representatives thereof. (Pub. L. 107–296, title VIII, § 842, Nov. 25, 2002, 116 Stat. 2234.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a)(1), (b)(1), and (d), was in the original ‘‘this Act’’, meaning Pub. L. 107–296, Nov. 25, 2002, 116 Stat. 2135, known as the Home- land Security Act of 2002, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 101 of this title and Tables. The effective date of this chapter, referred to in sub- sec. (b), is 60 days after Nov. 25, 2002, see section 4 of Pub. L. 107–296, set out as an Effective Date note under section 101 of this title. § 413. Use of counternarcotics enforcement ac- tivities in certain employee performance ap- praisals (a) In general Each subdivision of the Department that is a National Drug Control Program Agency shall in- clude as one of the criteria in its performance appraisal system, for each employee directly or indirectly involved in the enforcement of Fed- eral, State, or local narcotics laws, the perform- ance of that employee with respect to the en- forcement of Federal, State, or local narcotics laws, relying to the greatest extent practicable on objective performance measures, including— (1) the contribution of that employee to sei- zures of narcotics and arrests of violators of Federal, State, or local narcotics laws; and (2) the degree to which that employee co- operated with or contributed to the efforts of other employees, either within the Depart- ment or other Federal, State, or local agen- cies, in counternarcotics enforcement. (b) Definitions For purposes of this section— (1) the term ‘‘National Drug Control Pro- gram Agency’’ means— (A) a National Drug Control Program Agency 1, as defined in section 1701(7) 2 of title 21 (as last in effect); and (B) any subdivision of the Department that has a significant counternarcotics responsi- bility, as determined by— (i) the counternarcotics officer, ap- pointed under section 458 of this title; or (ii) if applicable, the counternarcotics of- ficer’s successor in function (as deter- mined by the Secretary); and (2) the term ‘‘performance appraisal system’’ means a system under which periodic apprais- als of job performance of employees are made, whether under chapter 43 of title 5, or other- wise.