2012 Federal Employees Almanac
Chapter 8, Section 6: Labor/Management Relations
Title VII of the Civil Service Reform Act of 1978 (CSRA), established a system for federal employees to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal. Labor organizations exclusively represent the bargaining unit employees in all matters affecting their working conditions. This portion of the CSRA (Chapter 71 of Title 5 of the U.S. Code) is referred to as the Federal Service Labor-Management Relations Statute.
Although most local unions are nationally affiliated, local officers and stewards are members of the installation's workforce and have been elected or appointed to office by the local union membership. Management is not involved in this selection process.
The statute requires supervisors to deal exclusively with the certified labor union on establishing or modifying conditions of employment affecting bargaining unit employees. This means that supervisors and management officials cannot negotiate over personnel policies, practices, or working conditions directly with bargaining unit employees. Rather, these dealings must be solely with the union officials representing them. Failure to adhere to this requirement may result in an unfair labor practice being found, with management's actions being reversed until the requirement to negotiate with the union, if requested, has been satisfied.
Key elements of the labor/management program are:
- Federal employees have the right to join or not to join a labor organization. Unions with exclusive recognition have the right and the obligation to represent all employees in an exclusive unit. Third-party procedures are provided for resolving labor/management disputes.
- An independent Federal Labor Relations Authority (FLRA) of three members who serve five-year terms, subject to removal only for cause, and a general counsel who investigates and prosecutes complaints of unfair labor practices. The FLRA (see Chapter 10, Section 6) generally is responsible for administering the federal government's labor relations program. There is within the FLRA a Foreign Service Labor Relations Board whose function in the Foreign Service is similar to that performed by the FLRA in the civil service.
- The scope of matters subject to negotiated grievance and arbitration procedures includes such adverse actions as discharge, demotion, and long-term suspensions. The negotiated procedures do not cover prohibited political activities, retirement, insurance, suspension or removal for national security, examination, certification or appointment, position classification which does not result in loss of grade or pay or any matter the union and agency agree to exclude. Concerning matters covered by the negotiated grievance procedure, binding arbitration is the sole procedure available to bargaining unit employees--except that in adverse actions, unacceptable performance and discrimination cases the employee may use either the negotiated procedure or the statutory appeals procedure (but not both).
- The Act specifies "management rights," reserving to agency officials the authority to make decisions and take actions which are not subject to the collective bargaining process, and excludes bargaining on federal pay and benefits or non-voluntary payments to unions by employees. In the management rights area, the Act: (1) prohibits agencies from bargaining on mission, budget, organization, number of employees or internal security; and (2) permits, but does not require, them to negotiate over the methods, means and technology of conducting agency operations. Management's right to select or non-select from a promotion certificate or to fill a position from any appropriate source (internally or externally) is specifically stated.
- The Act contains the basic rights of federal employees to form, join and assist labor organizations or to refrain from these activities. It also contains prohibitions against strikes and slowdowns, as well as picketing which interferes with government operations.
Other key features and provisions of the federal government's labor relations program include:
- A special expedited procedure to determine whether a particular matter falls within the obligation to bargain.
- FLRA decisions and orders are subject to court enforcement, including judicial review in unfair labor practice and negotiability cases.
- Authority to make an employee whole in an unjustified or unwarranted personnel action--including back pay plus attorney fees.
- Dues withholding--based on voluntary allotments by employees--is allowed at the exclusive union's request. Allotments are irrevocable for one year, and the withholding service is at no charge to the employee or labor organization. Dues withholding also is authorized for unions with 10 percent or more membership in appropriate bargaining units where there is no exclusive union.
- Official time for employees representing the union in negotiations during regular working hours (including attendance at impasse settlement proceedings), but the number of employees on official time shall not exceed the number of management officials representing the agency.
To assist in resolving negotiation impasses, the mediation services of the Federal Mediation and Conciliation Service are available, and unresolved negotiation impasses may be referred to the Federal Service Impasses Panel, an entity within the FLRA.
Supervisors and managers are excluded from coverage under the program. They cannot be represented in dealings with management by unions that represent rank-and-file employees. (They may be covered instead by agency systems for intra-management communication and consultation under OPM guidelines.)
The Federal Service Labor-Management Relations Statute provides that an agency shall recognize a labor organization as the exclusive representative of employees in a bargaining unit, if that organization has been selected as the representative by a majority of the unit's employees who voted in a secret ballot election.
For a union to represent employees, it must first file a petition with the FLRA. That petition must establish that at least 30 percent of the employees in the proposed unit wish to be represented by the union as evidenced by their signatures and that the unit is appropriate. To be appropriate, a unit must insure a clear and identifiable community of interest among unit employees, promote effective dealings with the agency, and promote the efficiency of agency operations
Employees already represented by a union may petition the FLRA to be represented by another union or to be unrepresented. A petition must be filed with signatures of at least 30 percent of the employees in the unit asserting that the exclusive representative is no longer the representative of a majority of unit employees. Provided at least one year has elapsed since a representation election was conducted, the FLRA will hold an election and representation (or lack thereof) will be determined by a majority of the ballots cast. A negotiated agreement between labor and management bars another union from seeking to represent the bargaining unit until shortly before the expiration of the existing negotiated agreement. At that time (not more than 105 or less than 60 days prior to the expiration of an agreement of three years or less), the FLRA will consider timely a petition filed by a rival union.
In addition to determining questions of representation, petitions may be filed to amend or clarify the description of a bargaining unit, and to consolidate two or more bargaining units.
The bargaining unit is a group of employees with common interests who are represented by a labor union in their dealings with agency management.
Bargaining unit status (that is, whether the position is in or out of the unit) pertains solely to the employee's position in the agency--it does not take into consideration whether the employee is a dues paying union member. As such, these are two distinct groups. Bargaining unit members are employees whose positions are included in the defined bargaining unit while union members are employees who pay dues to the labor organization. Bargaining unit employees may elect to join the local union and pay dues either through direct payment to the union or through automatic dues withholding, or they may decide not to join the union.
Once a union has been certified as the exclusive representative, though, it must represent all bargaining unit members equally, regardless of their union membership. As such, when the union and management negotiate a collective bargaining agreement, its terms and conditions cover all employees in the bargaining unit irrespective of their union membership.
There are, however, limited situations where the union can favor union members over nonmembers by offering certain services to only dues paying members. In these instances, though, the services are not related to the employee's conditions of employment. For example, a union can offer the services of a tax attorney to only dues paying union members.
The Federal Service Labor/Management Relations Statute specifically excludes certain positions from bargaining unit coverage. Individuals employed as supervisors, management officials and employees engaged in personnel work in other than a purely clerical capacity cannot be included in a bargaining unit. These individuals cannot be represented by unions and their conditions of employment can be unilaterally set by management.
Exclusions for Security Reasons
FLRA generally determines when a bargaining unit is appropriate. However, 5 U.S.C. 7112(b)(6) provides that a unit shall not be determined to be appropriate if it includes "any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security." In general, if there is a question about an employee or position after the FLRA has determined that a unit is appropriate, the union or agency may file a clarification of unit petition to obtain a decision from the FLRA as to whether an employee or position should be excluded from or included in the unit.
5 U.S.C. 7103(b)(1), added by the Civil Service Reform Act of 1978, authorizes the President to exclude any agency or subdivision of any agency from the ability to bargain collectively if the agency or subdivision has a primary function of intelligence, counterintelligence, investigative, or national security work, and application of the labor/management relations provisions of the CSRA cannot be applied in a manner consistent with national security requirements and considerations.
Department of Homeland Security--Under the law creating the Department of Homeland Security (P.L. 107-296) the President has discretion to deny recognition of bargaining units, and to exclude positions or employees from appropriate units at that department where the President determines in writing that union representation would have a substantial adverse impact on the department's ability to protect homeland security. The action could not be effective until 10 days after Congress had been notified of such a decision.
The Federal Service Labor-Management Relations Statute outlines the broad topics that must be negotiated with a labor union, those that are reserved to management, and those that may be negotiated at management's election, as described in Management Rights, below. (Note: Different policy on negotiability applies at the Transportation Security Administration; see Other Major Alternative Personnel Authorities in Section 7 of this chapter.)
Negotiations occur at various times and for different reasons. The most prominent is the formal negotiations for a collective bargaining agreement. These are full scope negotiations. This process results in a written collective bargaining agreement signed by both management and the union establishing various personnel policies, practices, and conditions of employment. The document may be referred to as the contract, the collective bargaining agreement or the labor/management negotiated agreement. It is normally subject to renegotiations every three years but is frequently automatically renewed (rolled over) from year to year.
At times, negotiations arise as a result of management-proposed changes to bargaining unit employees' conditions of employment (for example, an agency reorganization, the introduction of new equipment, changes in regulations of outside authorities, etc.), which are not addressed in the parties' negotiated agreement or where there is no current agreement. In these cases, when an agency decides to make changes to conditions of employment during the life of an agreement--sometimes called midterm bargaining--or when there is no agreement, two types of negotiations may result:
- negotiations on the decision itself (substance bargaining); and/or
- negotiations on the effects of the proposed change--normally referred to as impact and implementation bargaining.
Management rights is a term which defines those areas over which management exercises exclusive decision-making authority. These rights are spelled out in Section 7106 of the Federal Service Labor-Management Relations Statute. There are two categories of management rights, "mandatory" or reserved rights, and "permissive" rights.
Rights reserved to management under Section 7106(a)(1) governing general management practices include the authority to determine the agency's mission, budget, organization, number of employees, and internal security practices. Reserved rights under Section 7106(a)(2) governing employment practices include the authority to: hire, assign, direct, lay off, retain, suspend, remove, reduce in grade or pay, or take other disciplinary action against employees, assign work, make determinations with regard to contracting out, determine the personnel by which agency functions will be performed, make selections from among properly ranked and certified candidates for promotion or any other appropriate source; and take whatever action may be necessary to carry out the agency mission during emergencies.
Permissive rights under Section 7106(b)(1) are those rights that management may bargain, but is not statutorily required to do so. These include the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, and the technology, methods, and means of performing work. See Labor/Management Cooperation, below, for information about a test program of bargaining in these areas.
Even with respect to nonnegotiable "mandatory" management rights, management must bargain, upon request, over the procedures it will use in exercising these rights and on appropriate arrangements for employees adversely affected by the exercise of such rights. For example, in a reduction in force, the decision to RIF is a management right, but how that RIF is conducted and outplacement or other assistance is provided for displaced employees are negotiable issues.
When there is a question whether a proposal is outside the duty to bargain because it involves a management right or is subject to bargaining as a condition of employment, the matter may be raised as a negotiability appeal to the Federal Labor Relations Authority. Negotiability decisions of the FLRA can be challenged in federal court.
A union may propose measures whose purpose is to alleviate the adverse impact on unit employees of a management action. If, however, the union's proposal seriously interferes with the exercise of a management right, the FLRA will apply the "excessive interference" test. That test provides that a union proposal whose purpose is to ameliorate the adverse effects of a management decision is negotiable unless it impinges upon a management right to an excessive degree.
Employees have the right to form, join or assist a union or to refrain from doing so. Employees are free to exercise this right without fear of penalty or reprisal and shall be protected in exercising this right.
Employees have the right to:
- act as a union representative, and in that capacity, to present union views to agency management, the Congress or other authorities; and
- negotiate over conditions of employment through their chosen representative.
While typically an employee has no control over whether he or she is in a bargaining unit, it is the employee's decision whether to be a union member, and if a union member, how actively engaged. Additionally, management does not have a say in which bargaining unit employee serves as a union official.
Representational Rights--Several provisions of the Federal Service Labor-Management Relations Statute address the opportunities unions have in representing the bargaining unit employees' interests. For example, the union is able to:
- negotiate with management in good faith concerning conditions of employment for bargaining unit members;
- obtain data normally maintained by management that are reasonably available and necessary to the union for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining;
- present its views to heads of agencies and other officials of the Executive Branch of the government, the Congress, or other appropriate authorities;
- have employees representing the union on official time when negotiating agreements with management; and
- be represented at certain discussions management may have with bargaining unit employees.
Formal Discussions--Management has an obligation to invite the union to attend any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment.
For a meeting to be considered a formal discussion, it must include:
- one or more representatives of the agency (for example, supervisor(s), management official(s), personnelist(s), or attorney(s)); and
- one or more employees in the bargaining unit or their representative(s).
A meeting does not become a formal discussion unless the subject concerns an individual's grievance or general conditions of employment.
A discussion between management and a grievant relating to a grievance is a formal discussion. The union must be invited to attend even if the employee is representing him- or herself in the negotiated grievance proceeding.
Discussions with bargaining unit members about general conditions of employment or personnel policies and practices and normal "shop talk" are not formal discussions.
If the meeting meets the definition of a formal discussion, the supervisor must invite the union to attend. Having a shop steward who works in the office at the meeting in his or her role as an employee does not meet this obligation. Rather, the supervisor must invite the union to the meeting with the union being free to designate whom it wants to act as its representative.
Finally, the union is allowed to participate in these meetings by raising questions/comments/concerns, but it cannot disrupt them.
Examination of Employees (‘Weingarten’ Meetings)--The union is entitled to represent bargaining unit employees at meetings in connection with an investigation. This provision is often referred to as employees' "Weingarten" rights, based on a Supreme Court decision. The Federal Service Labor-Management Relations Statute establishes three conditions for a "Weingarten" meeting:
- one or more agency representatives are examining (questioning) a bargaining unit employee in connection with an investigation;
- the employee reasonably believes that the examination may result in disciplinary action against the employee; and
- the employee requests union representation.
Once all three conditions have been met, supervisors may generally not continue the examination without allowing the employee his or her requested representation.
"Weingarten" rights are not applicable when management issues a disciplinary action, because management is not asking any questions. Additionally, the "Weingarten" right does not come into play when engaging in performance counseling as this does not concern disciplinary matters but, rather, performance issues.
Negotiated Grievance Procedures
The Federal Service Labor-Management Relations Statute defines a negotiated grievance as any complaint by any employee concerning any matter relating to the employment of the employee, by any labor organization concerning any matter relating to the employment of any employee or by any employee labor organization, or agency concerning:
- the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or
- any claimed violation, misinterpretation or misapplication of any law, rule, or regulation affecting conditions of employment.
Every negotiated agreement contains a negotiated grievance procedure. This is the exclusive procedure for resolving bargaining unit employees' grievances that fall within its coverage; the union is the exclusive representative under this procedure. Negotiated grievance procedures do not apply to employees serving probationary periods.
The negotiated grievance system is a full-scope procedure. That is, it covers all matters falling within the definition that are not specifically excluded by the Statute. (For example, the negotiated grievance system cannot include grievances concerning retirement, insurance, or the classification of any position which does not result in the reduction in grade or pay of an employee.) Management and the union can, through collective bargaining, exclude any additional subject from coverage of the negotiated procedure. For example, if the parties agree that grievances over performance appraisals are to be excluded from the negotiated procedure, these types of grievances would then have to be raised under the administrative grievance procedure or some alternative system developed by the parties.
Employees filing grievances under the negotiated procedure can elect to have the union represent them or they can represent themselves. They cannot hire their own representatives unless the union states that the private representative is acting for the union. Even if the employee represents him or herself, the union must be invited to attend any grievance meetings as these are considered formal discussions.
The negotiated grievance procedure usually begins with the grievant or his or her representative presenting an informal grievance to the first-line supervisor. If not resolved, the grievant can raise the matter up through the chain of command. (Each negotiated agreement details the grievance process.) Once the final decision has been issued, the matter can be raised to final and binding arbitration only by the union; an employee cannot raise a matter to arbitration.
Under alternative dispute resolution (ADR) procedures, alternate means are introduced to resolve employee complaints before a grievance reaches the final stage. Some ADR processes include mediation, peer-panel reviews, facilitation, etc. The goal of ADR is to provide an informal, local method for amicably resolving disputes at the lowest possible level without the need for invoking third party arbitration. See Chapter 10, Section 7.
Unfair Labor Practices
An unfair labor practice (ULP) is normally a violation of the Federal Service Labor-Management Relations Statute. Anyone can file a ULP charge--an individual, an employee, the union or management. The respondent to the charges, though, will always be either management or the union. The vast majority of ULP charges are filed by the union against management. The reason for this is that management is usually the party which takes the actions.
Unfair labor practice charges are filed with the general counsel of the Federal Labor Relations Authority. The general counsel investigates the charge to determine if there is sufficient evidence to warrant issuing a complaint. If a complaint is issued, a hearing is set and the parties go before an administrative law judge (ALJ) with the general counsel prosecuting. The administrative law judge will issue a decision either finding that a ULP was committed or dismissing the complaint. If either party is dissatisfied with the ALJ's decision, the case can be appealed to the Authority.
If the agency is found to have committed a ULP, various remedies can be ordered. The most common is an annoucement that the agency committed a ULP and a promise not to do it again. Another potential remedy is a reversal of the management action that caused the ULP. For example, if management realigns an office without giving the union an opportunity to bargain, a remedy may be to reverse the realignment and require management to bargain with the union. This is called a status quo ante remedy; back pay may be ordered if employees lost pay or allowances due to management's action. FLRA seeks to have ULP notices announced electronically where the agency or union customarily communicates with bargaining unit employees in that way.
Management Unfair Labor Practices--Section 7116(a) of the Federal Service Labor-Management Relations Statute (see Title 5 of the U.S. Code) provides that it is an unfair labor practice for management to:
- interfere with, restrain, or coerce employees in the exercise by the employee of any right under the Statute;
- encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment;
- sponsor, control or otherwise assist any labor organization, other than to furnish, upon request, customary, and routine services and facilities if the services and facilities are also furnished on an impartial basis to other labor organizations having equivalent status;
- discipline or otherwise discriminate against an employee because the employee has filed a grievance, complaint, affidavit, or petition or given information or testimony;
- refuse to consult or negotiate in good faith with a labor organization;
- fail or refuse to cooperate in impasse procedures and impasse decisions;
- enforce any rule or regulation (other than a rule or regulation addressing prohibited personnel practices) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulations was prescribed; or
- otherwise fail or refuse to comply with any provision of the Statute.
Union Unfair Labor Practices--Section 7116(b) of the Federal Service Labor-Management Relations Statute defines those actions which, if taken by the union, would result in a ULP. The statute provides that it is an unfair labor practice for the union to:
- interfere with, restrain, or coerce any employee in the exercise by the employee of any right under the Statute;
- cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right;
- coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the members duties as an employee;
- discriminate against an employee with regard to the terms of conditions of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or non-preferential civil service status, political affiliation, marital status, or handicapping condition;
- refuse to consult or negotiate in good faith with a labor organization;
- fail or refuse to cooperate in impasse procedures and impasse decisions;
- call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor/management dispute if such picketing interferes with an agency's operations, or
- otherwise fail or refuse to comply with any provision of the Statute.
Official time is the time granted to an employee by the agency to perform representational functions on behalf of the union. Official time is granted without charge to leave or loss of pay and is authorized only when the employee would otherwise be in a duty status. Official time is considered hours of work.
Official time must be granted to employees representing a labor organization when engaged in collective bargaining, to include attendance at impasse proceedings. The number of employees for whom official time is authorized may not exceed the number of individuals designated as representing the agency in the negotiations. (The union can bargain for additional union negotiators to be on official time.)
Official time cannot be granted for internal union business.
The Federal Labor Relations Authority can authorize official time for employees representing the union in any phase of proceedings before the Authority, including unfair labor practice proceedings, bargaining unit representation proceedings, etc.
Official time for representing bargaining unit employees on matters covered by the Statute may be granted in any amount the agency and the union involved agree to be reasonable, necessary and in the public interest. The amount and use of official time for representational purposes is fully negotiable. The amount of official time authorized to union representatives at the installation is detailed in the parties' negotiated agreement or is set through past practice.
Individuals who participate in a strike against the government of the United States may not accept or hold a position in the government under 5 U.S.C. 7311. Such individuals are also not considered employees within the meaning of the Act, 5 U.S.C. 7103(a)(2)(B)(v).
As noted above, it is an unfair labor practice for a labor organization to "call, or participate in, a strike, work stoppage, or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with an agency's operations" or to condone any such activity by failing to take action to prevent or stop it (5 U.S.C. 7116(b)(7)(A) and (B)). Further, the Act by definition excludes labor organizations that engage in such activity from coverage and thus from acting as the exclusive representative of employees (5 U.S.C. 7103(a)(4) (D)).
If it finds a labor organization has willfully and intentionally violated Section 7116(b)(7) of the Act, the FLRA may take disciplinary action up to revoking exclusive recognition status.
A strike by employees against the government also constitutes a criminal violation (18 U.S.C. 1918). Any person found guilty of violating this section of the law is subject to a fine of not more than $1,000 or imprisonment of not more than a year and a day, or both.
Executive Order 13522 of 2009 created the National Council on Federal Labor-Management Relations, consisting of senior central agency officials and representatives of unions and management organizations, responsible for: supporting the creation of agency-level labor/management forums and promoting partnership efforts between labor and management; developing measures for assessing their effectiveness; providing guidance on labor/management improvement efforts, including results achieved; using the expertise of individuals both within and outside the government to foster cooperative labor/management relations arrangements; and recommending ways to improve delivery of services to the public while cutting costs and advancing employee interests.
Agency heads meanwhile were ordered to:
- establish agency-level labor/management forums by creating labor/management committees or councils at appropriate levels, or adapting existing councils or committees if such groups exist;
- involve employees and their union representatives as "full partners" with management representatives to identify problems and craft solutions;
- allow employees and their union representatives pre-decisional involvement on all workplace matters, without regard to whether those matters are negotiable subjects of bargaining, and provide adequate information on such matters expeditiously to union representatives where not prohibited by law; and
- evaluate and document, in consultation with union representatives, progress and improvements in employee satisfaction and organizational performance resulting from the labor/management forums.
In addition, the order mandated the creation of pilot projects to test required negotiations over some or all of the subjects negotiable at management's discretion. As of 2011, 12 such projects were under way in nine agencies. Each test covers at least 500 bargaining unit employees or a significant agency process, but the scope of bargaining differs. Reports of results were projected to be issued in 2012.
Implementation plans and other information are at www.lmrcouncil.gov; online training is at www.vahracademy.com/flra.html.