VA Council of Consolidated Locals
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Labor-Management Relations
Title VII of the Civil Service Reform Act of 1978 (CSRA), established into law 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. Once formed, these labor organizations exclusively represent the bargaining unit employees in all matters affecting their working conditions. This portion of the CSRA U.S. Code (Chapter 71 of Title 5 of the U.S. Code) is referred to as the Federal Service Labor-Management Relations Statute (the Statute.) On an exclusive-recognition basis, labor organizations represent more than half of the non-postal federal work force. Negotiated agreements, which cover nine-tenths percent of the employees represented, increasingly determine personnel policies and practices. 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 (known as bypassing the union) may result in an unfair labor practice 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:
Other key features and provisions of the federal government’s labor relations program include:
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 Office of Personnel Management guidelines.) Union Organizing 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 Federal Labor Relations Authority. 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. It is strongly recommended that activities file these later types of petition upon any organizational changes which impact on the bargaining unit’s definition. 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 non-members 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. Negotiations 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 (see Management Rights, below). The obligation to negotiate requires discussion and consideration of the other side's proposals—it does not compel either side to agree to a proposal or to make a concession. 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 agreement is normally distributed to everyone at the installation affected by its application. 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 (e.g., 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:
Management Rights 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 employee's or positions assigned to any organizational subdivision, work project, or tour of duty and the technology, methods, and means of performing work. (Note: Clinton administration orders to require agencies to bargain over permissive rights—Executive Orders 12871, 12983 and 13156—were overturned by a Bush administration order, Executive Order 13203 of February 17, 2001.) 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 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 affects of a management decision is negotiable unless it impinges upon a management right to an excessive degree. Even where a proposal would violate management rights, management is encouraged to discuss these proposals with the union and attempt to resolve the union’s concerns while preserving management’s rights. Employees' Rights 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:
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. Union Rights 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:
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:
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. Normal shop talk is not a formal discussion. 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:
Once all three conditions have been met, supervisors may generally not continue the examination without allowing the employee his or her requested representation. Specifically, the supervisor's options under these circumstances are:
"Weingarten" rights are not applicable when management issues a disciplinary action since 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. Finally, management, usually the installation labor relations specialist, is responsible for annually notifying employees of their "Weingarten" rights. 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:
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. Note: 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, life insurance or health 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 administrative steps of the grievance process.) Once the final decision has been issued, the matter can be raised to final and binding arbitration by the union—an employee cannot raise a matter to arbitration. A recent development concerning negotiated grievances is the advent of alternative dispute resolution (ADR) procedures. Under an ADR program, 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. For more information on the Federal Labor Relations Authority’s role in grievance procedures and for further information on ADR, see Chapter 9. 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 assigned. The most common is a posting stating that the agency committed a ULP and won't do it again. Another remedy issued by the Authority 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 ULP remedy may be to reverse the realignment and to require management to bargain with the union. This is called a status quo ante remedy. Tied into the status quo ante remedy can be a make whole order with back pay. If the realignment discussed above resulted in employees losing pay or allowances (e.g. differentials or consistent overtime opportunities), the ULP remedy may include back pay for these employees. Management Unfair Labor Practices—Section 7116(a) of the Federal Service Labor-Management Relations Statute (see Title 5 of the US Code) provides that it is an unfair labor practice for management to:
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:
Official Time 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. (Although 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. This would include 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. Strikes Individuals who participate in a strike against the government of the United States or the government of the District of Columbia may not accept or hold a position in the government of the United States (5 USC 7311). Such individuals are also not considered employees within the meaning of the Act, 5 USC 7103(a)(2)(B)(v). 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 activity described (above) by failing to take action to prevent or stop such activity,” (5 USC 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 USC 7103(a)(4) (D)). The FLRA is given the power when it finds a labor organization that has either by omission or commission willfully and intentionally violated section 7116(b)(7) of the Act to “revoke the exclusive recognition status of the labor organization . . .” or “take any other appropriate disciplinary action,” (5 USC 7120(f)). A strike by employees against the government of the United States or the government of the District of Columbia also constitutes a criminal violation (18 USC 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. Labor-Management Partnerships Executive Order 13203 of February 17, 2001 revoked Clinton administration Executive Orders 12871, 12983 and 13156, which were designed to foster a partnership arrangement between federal unions and management and which established the National Partnership Council, made up of top agency officials and presidents of federal unions, to oversee and promote partnership. The 2001 order dissolved the Council and ordered the Office of Personnel Management and heads of federal agencies to rescind any orders, rules, guidelines or other policies implementing the partnership program, “to the extent consistent with law” and with any collective bargaining agreements in effect at the time. Later OPM guidance stated that the 2001 order “does not prescribe any particular approach to labor-management relations” and that it gave agencies “discretion to adopt a labor relations strategy best suited to their own needs.” Such strategies can include partnership arrangements, although the prior mandate to use them no longer exists. OPM said, however, that agencies are “strongly encouraged to establish cooperative labor-management relationships.” The order also had the effect of revoking Clinton administration initiatives to require agencies to bargain on subjects that are negotiable at an individual agency’s discretion under federal labor law (see above).
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