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 (5 U.S.C. 71) is referred to as the Federal Service Labor-Management Relations Statute, or “Chapter 71.” 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 (also see www.opm.gov/policy-data-oversight/labor-management-relations) 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: prohibits agencies from bargaining on mission, budget, organization, number of employees or internal security; and 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 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 you 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 you or the 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 may 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. See Association Rights in Section 4 of this chapter.
The Federal Service Labor-Management Relations Statute provides that an agency must 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 position in the agency—it does not take into consideration whether you are 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 is not 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.
Under 5 U.S.C. 7103(b)(1), the President may 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.
Executive Order 13839 of May 25. 2018 told agencies not to bargain over matters that are negotiable at management’s discretion (see Management Rights, below) and not to commit in bargaining to:
• make certain matters subject to negotiated grievance procedures (see Negotiated Grievance Procedures, below);
• limit management’s discretion to remove an employee without first engaging in progressive discipline or its discretion to take disciplinary action based on performance under “Chapter 75” procedures (see Discipline in Section 4 of this chapter);
• take steps apart from a formal performance improvement period to help employees improve their performance before taking disciplinary action based on performance; or
• provide performance improvement periods of more than 30 days except at management’s discretion.
Executive Order 13837 of that same date instructed agencies to negotiate the ground rules for bargaining in six weeks or less and to reach a contract within six months afterward and set policies for agencies on seeking assistance from the Federal Mediation and Conciliation Service or the Federal Service Impasses Panel and on filing unfair labor practice complaints at the Federal Labor Relations Authority. Executive Order 13836 of that same date set positions for agencies to take in negotiations over official time (see Official Time, below).
An August 2018 court injunction in a union-sponsored suit that blocked implementation of many of those provisions was lifted in October 2019 following an appellate court ruling that any such challenge must be brought first to the FLRA. Numerous such challenges were pending there as of the publication of this edition of the Federal Employees Almanac.
October 4 and November 25, 2019 Office of Personnel Management memos (at www.chcoc.gov/transmittals) reinstated prior guidance on complying with those orders that had been suspended while the injunction was in effect and told agencies to ensure that they are fully compliant with all requirements or are taking steps to become compliant with requirements as soon as feasible. The guidance required agencies to comply with the orders in any new bargaining but to honor contracts with provisions contrary to those in the orders while those contracts are in effect—but also to look for opportunities to apply those policies within the range of management’s discretion allowable under those contracts or to exercise their rights in existing contracts to reopen those contracts. A Presidential memo of October 11, 2019 (at www.whitehouse.gov/presidential-actions/presidential-memorandum-executive-orders-13836-13837-13839) clarified that those same policies apply to contracts reached while the injunction was in effect.
Many of those policies were the subject of challenges before the Federal Labor Relations Authority as of the publication of this edition of the Federal Employees Almanac.
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.
Note: As described above, Executive Order 13836 of 2018 directed agencies not to negotiate over permissive subjects, overriding Executive Order 13522 of 2009 which had set a general policy that agencies must negotiate over them.
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. You are free to exercise this right without fear of penalty or reprisal and must be protected in exercising this right.
You 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 your chosen representative.
While typically you have no control over whether you are in a bargaining unit, it is your decision whether to be a dues-paying union member.
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.
The publication Guidance on Meetings at www.flra.gov/webfm_send/1025 covers rights and obligations that may arise due to various types of meetings or discussions.
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 Federal Service Labor-Management Relations 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.
Executive Order 13839 of May 25, 2018 stated that “whenever reasonable in view of the particular circumstances, agency heads shall endeavor to exclude” from negotiated grievance procedures: any dispute concerning decisions to remove any employee from federal service for misconduct or unacceptable performance; the assignment of ratings of record; or the award of any form of incentive pay, including cash awards, quality step increases or recruitment, retention or relocation payments. Executive Order 13837 of that same date further barred union representatives from using official time (see below) to prepare for or present a grievance for anyone other than themselves, unless whistleblower retaliation is alleged. An August 2018 court injunction that had barred implementation of those directives was lifted in October 2019. See Negotiations, above.
The negotiated grievance procedure usually begins with you or your representative presenting an informal grievance to the first-line supervisor. If not resolved, you 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; you cannot raise a matter to arbitration.
Under alternative dispute resolution 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 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 employee, the union or management. The respondent to the charges, though, will always be either management or the union. The large majority of ULP charges are filed by a union against management, since management usually is the party that takes 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 announcement 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 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 provides that it is an unfair labor practice for a 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 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 cannot be granted for internal union business. See www.opm.gov/policy-data-oversight/labor-management-relations.
Executive Order 13837 of May 25, 2018 instructed agencies to not agree, effective with that date, to amounts averaging more than one hour annually for each employee in the bargaining unit unless a higher amount is “reasonable, necessary, and in the public interest” and the agency justifies the higher amount to the Office of Personnel Management. That order further generally barred any employee from being in official time status more than 25 percent of duty hours in a fiscal year; if the amount is exceeded, the individual’s allowable amount the following year is to be reduced proportionately.
In addition, the order generally required prior written approval from the agency to use official time, banned use of official time to prepare or pursue grievances or arbitration on behalf of another employee unless whistleblower retaliation is alleged, stated that an employee who uses official time contrary to the order’s policies “shall be considered absent without leave and subject to appropriate disciplinary action” and required greater reporting on use of official time. Agencies also were told not to provide space or office equipment to employees for union-related purposes unless the same is available for non-agency business by employees when acting on behalf of non-federal organizations, and not to reimburse union expenses such as travel expenses unless required by law or regulation.
An August 2018 court injunction that had barred implementation of those directives was lifted in October 2019. See Negotiations, above.
If you participate in a strike against the government of the United States, you may not accept or hold a position in the government under 5 U.S.C. 7311 and would not be considered an employee within the meaning of the Federal Service Labor-Management Relations Statute, 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 law 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.