GLOSSARY OF FEDERAL SECTOR

LABOR-MANAGEMENT RELATIONS TERMS^[1]

ABROGATION TEST. A test the Federal Labor Relations Authority (FLRA or Authority) applies in determining whether an arbitration award enforcing a contract provision affecting management’s § 7106(a) rights is deficient. If the provision at issue is an “arrangement” for employees adversely affected by the exercise of management’s § 7106(a) rights, an award enforcing such a provision will not be set aside unless it “abrogates” those rights--i.e., unless it leaves management no discretion at all with respect to the management right(s) at issue. For lead cases see 37 FLRA Nos. 20, 67, 70, 103 and 38 FLRA Nos. 3 and 21. Distinguish between the excessive interference test that FLRA uses to determine the negotiability of proposals that affect management’s rights, and the abrogation test that it uses to determine the enforceability of contractual provisions that affect management’s rights.

ACCRETION. When some employees are transferred to another employing entity whose employees are already represented by a union, FLRA will often find that those employees have "accredit" to (i.e., become part of) the existing unit of the new employer, with the result that the transferred employees have a new exclusive representative along with a new employer. See, e.g., 5 FLRA No. 37, where FLRA found an accretion and compare it with 5 FLRA No. 38, where it didn't. Compare with successorship, described below.

ACTIONS DURING EMERGENCIES. A right reserved to management by § 7106(a)(2)(D). Management's right "to take whatever actions may be necessary to carry out the agency mission during emergencies" doesn't come up in negotiability disputes very often. In all but one of the cases decided thus far, FLRA has held that this right is interfered with by proposals attempting to define "emergency" because such definitions would be inconsistent with management's right to independently determine whether an emergency exists. See, e.g., 22 FLRA No. 13, 29 FLRA No. 84, 30 FLRA No. 52, and 49 FLRA No. 84, #1. However, in 55 FLRA No. 42, it said that it would no longer follow this precedent. It there found that a proposed “definition” that was interpreted as not limiting the situations in which the agency could take actions in an emergency did not interfere with the right to take actions during emergencies. For additional decisions on this right, see, e.g., 25 FLRA No. 61, #4 (proposal requiring management to negotiate on the changes it will make in the rotational system during an emergency interferes with the right to "take whatever actions may be necessary"). See also 14 FLRA No. 91, #2 (proposal requiring three days notice of changes in hours of work, even during emergencies, interferes with this right).

AGENCY HEAD REVIEW. Requirement that negotiated agreements be reviewed for legal sufficiency by the head of the agency (or his/her designee). § 7114(c)(1). This must be accomplished within 30 days from the date the agreement is executed. § 7114(c)(2). If disapproved, the union can challenge those determinations by filing a negotiability petition or an unfair labor practice (ULP) charge with FLRA. If not approved or disapproved within that time, the agreement goes into effect and the legality and enforceability of its terms is decided in other forums (e.g., grievance or unfair labor practice proceedings). § 7114(c)(3). During the 30-day period the incumbent union is protected from challenge by a rival union. 5 CFR 2422.12(c).

AGENCY SHOP. A requirement that all employees in the unit pay dues or fees to the union to defray the costs of providing representation. In 1 FLRA No. 64 the Authority held that § 7102 prohibits agency shop requirements. See also, 22 FLRA No. 57, 38 FLRA No. 57, and 44 FLRA No. 8.

AGREEMENT, NEGOTIATED. A collective bargaining agreement (CBA). CBAs take many forms, e.g., term agreements, midterm agreements, memoranda of understanding (MOU), basic agreements, supplemental agreements, oral agreements, side agreements, and past practices. Section 7103(a)(9) defines a collective bargaining agreement as "an agreement entered into as a result of collective bargaining pursuant to the provisions of this chapter."

CBAs set forth some of the conditions of employment of unit employees, various rights and obligations of the parties to the agreement (i.e., the exclusive representative and the activity or agency), the negotiated grievance procedure, dues withholding provisions, reopeners, as well as the duration of the agreement. CBAs cannot contain provisions that interfere with management rights (unless they are § 7106(b)(3) "appropriate arrangements," or § 7106(b)(1) "permissive subjects of bargaining" on which management has "elected" to bargain), nor even restate agency or Governmentwide regulations that interfere with (i.e., place restrictions on the exercise of) management rights, for that would give them an existence independent of the regulations. (See, e.g., 19 FLRA No. 24, #3 (RIF regulations) and 47 FLRA No. 79, #1 (performance regulations)). However, see 38 FLRA No. 89, #1, where the Authority held that a proposal requiring the agency to establish and administer a drug testing program in accordance with the Constitution, laws, rules, regulations, and the contract, interfered with the right to determine internal security practices, but still was negotiable because it was an appropriate arrangement under § 7106(b)(3).

Since the most important conditions of employment for most employees covered by the Federal Service Labor-Management Relations Statute are established by laws and regulations, many of the conditions of employment one finds in CBAs are paraphrases, restatements, and/or selected quotations of those laws and regulations and, to the extent the laws and regulations give the agency discretion over the matter and the matter is otherwise negotiable (e.g., not in conflict with management rights), agreed-upon supplements to those laws and regulations. Negotiated agreements are subject to agency head review for legal sufficiency. § 7114(c)(1).

Refusing to put an agreement into writing is a unfair labor practice (ULP). § 7103(a)(12). Although disputes over the meaning and application of the CBA normally are processed through the agreement's grievance-arbitration procedures, some types of violations can also be processed by the Authority under its unfair labor practice procedures. See, e.g., 21 FLRA No. 117; 22 FLRA No. 25; compare with 15 FLRA No. 132. See 51 FLRA No. 72 for a description of the analytical framework that FLRA uses to determine whether there has been a repudiation of the agreement--i.e., whether (1) the breach was clear and patent and (2) the provision breached went to the heart of the agreement. Also see 52 FLRA Nos. 22 and 42. Under section 7116(d), “issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under [§ 7116], but not under both procedures.” See 52 FLRA No. 62 (grievance barred because the issue was the same as in an earlier-filed ULP charge) and compare with 52 FLRA No. 37 (no bar because the unfair labor practice issue is not the same as the negotiated grievance procedure issue).

AMENDMENT OF CERTIFICATION PETITION. That portion of FLRA’s multipurpose petition not involving a question concerning representation that may be filed at any time in which the petitioner asks FLRA to amend the certification or recognition to, e.g., reflect changes in the names of the employer or the union. See 5 CFR 2422.1(b).

AMERICAN ARBITRATION ASSOCIATION (AAA). A private nonprofit organization that, among other things, provides lists of qualified arbitrators to unions and employers.

APPLICABLE LAWS. In Treasury v. FLRA, 494 U.S. 922 (1990), the Supreme Court said that only those external limitations on management’s § 7106(a)(2) rights that are contained in “applicable laws” can be enforced by the union under the negotiated grievance procedure. In 42 FLRA No. 31, the Authority said that “applicable laws” within the meaning of § 7106(a)(2) include statutes, the Constitution, judicial decisions, certain Presidential executive orders, and regulations “having the force and effect of law”--i.e., regulations that (1) affect individual rights and obligations, (2) are promulgated pursuant to an explicit or implicit delegation of legislative authority by Congress, and (3) satisfy certain procedural requirements, such as those of the Administrative Procedures Act. In 53 FLRA No. 27, it held that 5 CFR 430 was an “applicable law.” It should be emphasized that the "applicable laws" requirement does not apply to § 7106(a)(1) rights. See, e.g., 38 FLRA No. 89, #1, where the Authority held that a proposal requiring the agency to establish and administer a drug testing program in accordance with the Constitution, laws, rules, regulations, and the contract, interfered with the right to determine internal security practices. (However, the proposal was nonetheless negotiable because FLRA held that it was an appropriate arrangement under § 7106(b)(3).) In 43 FLRA No. 46, the Authority held that the reference to law in “applicable laws” under § 7106(a)(2) and “to the extent not prohibited by law” under § 7114(b)(4) were coextensive: therefore law in section 7114(b)(4), like “laws” in § 7106(a)(2), “includes . . . regulations having the force and effect of law.”

APPROPRIATE ARRANGEMENT. One of three § 7106(b) exceptions to § 7106(a) management rights. Under § 7106(b)(3) a proposal that interferes with management's rights can nonetheless be negotiable if the proposal constitutes an "arrangement" for employees adversely affected by the exercise of a management right and if the interference with the management right isn't "excessive" (as determined by an "excessive interference" balancing test). See, e.g., American Federation of Government Employees v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983) and 21 FLRA No. 4. For more on this exception, see the remarks under management rights.

APPROPRIATE UNIT (sometimes referred to as a bargaining unit). A grouping of employees that a union represents or seeks to represent and that the FLRA finds appropriate under the criteria of § 7112 (community of interest, effective dealings, efficiency of operations) for collective bargaining purposes. Certain types of employees cannot be included in units--e.g., management officials and supervisors. See § 7112(b).

ARBITRATION. See arbitrator.

ARBITRATOR. An impartial third party to whom the parties to an agreement refer their disputes for resolution. Section 7121(b)(1)(C)(iii) mandates that negotiated grievance procedures provide for binding arbitration of unsettled grievances.

Most commonly labor arbitrators perform grievance arbitration--i.e., they interpret and apply the terms of the agreement (including established practices)--and, in the Federal sector, laws and regulations (see applicable laws, above) bearing on conditions of employment. But they are also occasionally asked to perform interest arbitration--i.e., they resolve bargaining impasses by dictating the terms of the agreement.

Lists of qualified labor arbitrators are provided, upon request and for a fee, by the American Arbitration Association (AAA) and the Federal Mediation and Conciliation Service (FMCS). Nothing, however, prevents the parties to an exclusive recognition relationship from creating their own panels of arbitrators from whatever sources they agree are appropriate.

ASSIGN EMPLOYEES. A right reserved to management by § 7106(a)(2)(A). This right, often confused with the § 7106(a)(2)(B) right to assign work, relates to the assignment of employees to positions, shifts, and locations. This right includes discretion to determine “the personnel requirements of the work of the position, i.e., the qualifications and skills needed to do the work, as well as such job-related individual characteristics as judgment and reliability." 2 FLRA No. 77. It also includes discretion to determine the duration of the assignment. 28 FLRA No. 66, #5. The use of seniority procedures in selecting employees for assignments to shifts, details, etc., doesn't normally interfere with the right to assign employees where the seniority criteria are applied to employees that management has already determined are qualified to perform the work. See, in this connection, 44 FLRA No. 1, #1 (assignment of overtime), 41 FLRA No. 58 (assignment to details), and 30 FLRA No. 80, #1 (assignment to shifts).

ASSIGN WORK. A right reserved to management by § 7106(a)(2)(B). This right, often confused with the § 7106(a)(2)(A) right to assign employees, relates to the assignment of work to employees or positions. In 3 FLRA No. 119--affirmed by the District of Columbia Circuit Court of Appeals (D.C. Circuit) in National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (1982)-- the Authority said the following about this right:

The right to assign work to employees or positions. . . is composed of two discretionary elements: (1) the particular duties and work to be assigned, and (2) the particular employees to whom or positions to which it will be assigned. Furthermore, management discretion in this regard includes the right to assign general continuing duties, to make specific work assignments to employees, to determine when such assignments will occur and to determine when the work which has been assigned will be performed. [3 FLRA at 775.]

The right to assign work includes discretion to determine who (6 FLRA No. 106) is to perform the work, the kind (29 FLRA No. 61) and amount (16 FLRA No. 27, #3) of work to be performed, the manner (12 FLRA No. 26) in which it is to be performed, as well as when (32 FLRA No. 146, #12) it is to be performed. It also includes "[t]he right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether a particular employee meets those qualifications." 32 FLRA No. 144, #1. When combined with the section 7106(a)(2)(A) right to direct employees, it reserves to management the right to establish performance standards (13 FLRA No. 50), the number of rating levels (13 FLRA No. 96), and the identity of performance elements (13 FLRA No. 49).

AUTHORITY. See FEDERAL LABOR RELATIONS AUTHORITY.

AUTOMATIC RENEWAL CLAUSE. Many, perhaps most, collective bargaining agreements in the Federal sector have a provision, usually located at the end of the agreement, stating that if neither party gives notice during the agreement's 105-60 day open period of its intent to reopen and renegotiate the agreement, the agreement will automatically renew itself for a period of x number of years. An automatically renewed agreement, under certain circumstances, can also serve as a contract bar. See, in this connection, 47 FLRA No. 89.

BACK PAY. Pay awarded an employee for compensation lost due to an unjustified personnel action are governed by the requirements of the Back Pay Act, 5 U.S.C. § 5596. For examples of awards set aside because they violated the Back Pay Act, see, e.g., 15 FLRA No. 146, 15 FLRA No. 164, 17 FLRA No. 125, and 56 FLRA No. 64. Back pay remedies for violations of the overtime provisions of the Fair Labor Standards Act (FLSA) are governed by the FLSA. See 53 FLRA No. 134.

BARGAINING (NEGOTIATING). A ubiquitous process--sometimes informal and spontaneous, sometimes formal and deliberate--of offer and counteroffer whereby parties to the bargaining process try to reach agreement on the terms of exchange. Deliberateness and a concern for bargaining strategy and tactics usually rise to the fore only when the stakes make such efforts worthwhile. Formal bargaining processes with associated rituals and bargaining routines vary, depending on their political, economic, and social context. Sometimes the formal requirements facilitate the process of reaching agreement; sometimes they become an end in themselves; and sometimes they are deliberately used in order to avoid or delay agreement. The process, as far as negotiations between collectivities is concerned--e.g., firms, unions, nations, and branches of government (e.g., budget negotiations between the President and the Congress)--has been analyzed into four subprocesses by Walton and McKersie in A Behavioral Theory of Labor Negotiations, 1965: distributive (“fixed pie”) bargaining; integrative (“variable pie”) bargaining (cf. “interest-based bargaining”); attitudinal structuring (cf. “partnering”); and intra-organizational bargaining, with real-world bargaining usually being a variable mixture of all four subprocesses.

BARGAINING AGENT. The union holding exclusive recognition for an appropriate unit.

BARGAINING IMPASSE (IMPASSE). When the parties have reached a deadlock in negotiations they are said to have reached an impasse in negotiations.* The statute provides for assistance by Federal Mediation and Conciliation Service (FMCS) mediators and the Federal Service Impasses Panel (FSIP) to help the parties settle impasses. If nothing avails, the FSIP can resolve the impasse by telling the parties what they are to put in their agreement or by ordering the use of interest arbitration by an agreed-upon private arbitrator. See § 7119. It is not, however, a ULP to refuse to comply with a FSIP order dealing with a permissive subject of bargaining. See 15 FLRA Nos. 65 and 100 - 104.

*Note: If the parties reach a bargaining impasse and the union timely invokes the services of the Impasses Panel, the agency must maintain the status quo to the maximum extent possible, consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action it deems appropriate. 18 FLRA No. 61. Failure to do so is an unfair labor practice and may result in a “make-whole” and/or status quo ante remedy. Regarding the “necessary functioning of the agency” exception to the duty to maintain the status quo, in 51 FLRA No. 69, the Authority said that when an agency relies upon this exception and alters status quo, it must be prepared to provide affirmative support for the assertion that the action taken was consistent with the necessary functioning of the agency. The Authority has also indicated that the phrase "consistent with the necessary functioning of the Agency,” may be accurately paraphrased as "necessary for the [agency] to perform its mission." See 23 FLRA No. 10. Also see 16 F Nos. 31 and 32 on acting after bargaining to impasse and giving notice.

BARGAINING UNIT. See appropriate unit.

BARGAINING UNIT STRUCTURE. The distribution of bargaining units by, e.g., size and location. It is often said that the bargaining unit structure in the Federal sector is "fragmented." Two additional appropriate unit criteria--effective dealings and efficiency of government operations--were among the changes Executive Order (EO) 11491 made over EO 10988 in order to combat the problem of fragmentation. EO 11491 was later amended to provide for unit consolidation procedures as another means of coping with unit fragmentation. See unit consolidation.

BINDING ARBITRATION. Under § 7121(b)(2)(A), a requirement that arbitration of grievances be binding (as opposed to advisory--which was permitted under Executive Order 11491).

BUDGET. A core right reserved to management by § 7106(a)(1). In 2 FLRA No. 77, #I, the Authority fashioned a two-prong test that it has since used to determine whether a proposal interferes with an agency's right to determine its budget: namely, the proposal either has to prescribe particular programs, operations or amounts to be included in an agency's budget, or the agency can substantially demonstrate that the proposal would result in significant and unavoidable cost increases that are not offset by compensating benefits. Regarding the first part of its budget test, FLRA said the following in 48 FLRA No. 128:

We find that the first part of the budget test encompasses the specific process that is dedicated to formulating: (1) the budget estimate for an agency that is incorporated in the budget of the United States Government; (2) estimates for funding the operations and programs of an agency that are produced within the agency to provide the groundwork for the budget estimate that is incorporated in the budget of the United States Government; and (3) an agency's plan for allocating funds among its operations and programs once presidential and congressional action on the budget of the United States Government has occurred. Thus, the first part of the budget test removes from bargaining any mandated inclusion of programs, operations, and amounts in the estimates and plans that comprise an agency's budget process. As a practical matter, the first part of the test includes the prescription of the "line items" that will be contained in the budget estimates that are incorporated in the budget of the United States. It also encompasses the prescription of the items and amounts that will be included in the funding estimates and plans that are developed by the agency in conjunction with formulating and executing the budget of the United States.

Regarding the second part, in 47 FLRA No. 95 the Authority said that it would no longer consider nonmonetary intangible benefits when applying the cost/benefit balancing test. Also, in determining whether a cost is “significant,” FLRA views the projected increase in costs in relation to the agency’s budget. For example, in 49 FLRA No. 89, #4, involving a commuter subsidy proposal, FLRA concluded that a projected cost of $3.628 million would not constitute a significant increase in costs because such a cost represented less than 1 per cent of the agency’s budget. Compare this with 47 FLRA No. 95, involving a salary adjustment proposal, where FLRA concluded that the projected cost increase of the proposal was significant because it would constitute 12 per cent of the agency’s appropriated budget.

BYPASS. Dealing directly with employees rather than with the exclusive representative regarding negotiable conditions of employment of bargaining unit employees. A bypass is an unfair labor practice prohibited by section 7116(a)(5). It is not, however, a bypass to solicit information that would assist management in making a nonnegotiable determination. See, e.g., 10 FLRA No. 24, 19 FLRA No. 48, and 19 FLRA No. 56.

CARVEOUT. An attempt, usually unsuccessful under the Federal Service Labor-Management Relations Statute because it fosters unit fragmentation, to carve out (or sever)--usually along occupational lines (firefighters, nurses)--a subgroup of employees in an existing bargaining unit in order to establish a separate, more homogenous unit with a different union as exclusive representative. See 16 FLRA No. 67.

CERTIFICATION. FLRA's determination of the results of an election or the status of a union as the exclusive representative of all the employees in an appropriate unit.

CERTIFICATION BAR. One-year period after a union is certified as the exclusive representative for a unit during which petitions by rival unions or employees seeking to replace or remove the incumbent union will be considered untimely. § 7111(f)(4) and 5 CFR 2422.12(b). The bar is designed to give the certified union an opportunity to negotiate a substantive agreement, after which the contract can become a bar, except during the contract's 105-60 day open period, to a representation petition. Also see contract bar and election bar.

CHALLENGED BALLOTS. Ballots that are challenged by election observers on the ground that the person casting the ballot isn't eligible to vote because, e.g., he or she is a management official, supervisor, confidential employee or engaged in personnel work. Challenged ballots usually are kept separate and if, after tallying the uncontested ballots, it is determined that there are enough challenged ballots to affect the outcome of the election, the Authority's agents will rule on each challenged ballot to see whether it should be counted.

CHECKOFF. See Dues Allotment.

CHIEF STEWARD. A union official who assists and guides shop stewards. The roles he or she plays within the union are determined by the union. The roles he or she plays in administering the contract are determined by the contract. For example, the negotiated grievance procedure may provide that the chief steward becomes the union representative if the grievance reaches a certain step in the grievance procedure.

CIVIL SERVICE REFORM ACT OF 1978 (CSRA). Legislation enacted in October 1978 for the purpose of improving the civil service. It includes the Federal Service Labor-Management Relations Statute (FSLMRS), Chapter 71 of title 5 of the U. S. Code.

CLARIFICATION OF UNIT PETITION. That portion of FLRA’s multipurpose petition not involving a question concerning representation that may be filed at any time in which the petitioner (union or management) asks FLRA to determine the bargaining unit status of various employees--i.e., to determine whether they are management officials, supervisors, employees engaged in nonclerical personnel work, or confidential employees, and therefore excluded from the unit (and from the coverage of the collective bargaining agreement applicable to the unit, including access to the agreement's negotiated grievance procedure). 5 CFR 2422.1(b). Arbitrators may not determine the bargaining unit status of an employee in order, e.g., to determine whether a grievance by a particular employee is arbitrable under the negotiated grievance procedure. See, e.g., 32 FLRA No. 125.

CLASSIFICATION ACT EMPLOYEES. Federal employees--typically professional, administrative, technical, and clerical employees (i.e., "white collar" employees)--sometimes referred to as "General Schedule" employees, to distinguish them from Federal Wage System (blue collar, Wage Grade) employees.

COLLECTIVE BARGAINING. Literally, bargaining between and/or among representatives of collectivities (thus involving internal as well as external bargaining); but by custom the expression refers to bargaining between labor organizations and employers. See § 7103(a)(12) for a statutory definition..

COLLECTIVE BARGAINING AGREEMENT (CBA). See AGREEMENT, NEGOTIATED.

COMPELLING NEED. A requirement, under § 7117(b), that a discretionary agency regulation that doesn't involve the exercise of § 7106 management rights must meet in order to be a valid limitation on the scope of bargaining. There are three "illustrative criteria" of compelling need: (1) the regulation is essential to the effective and efficient accomplishment of the mission of the agency, (2) the regulation is necessary to insure the maintenance of basic merit principles, and (3) the regulation implements a mandate of law or other authority (e.g., a regulation) in an essentially nondiscretionary manner. 5 CFR 2424.50. Compelling need determinations may not be made by the Federal Labor Relations Authority in an unfair labor practice proceeding. FLRA v. Aberdeen Proving Ground, 108 S.Ct. 1261 (1988). FLRA rarely finds a compelling need for agency regulations that impose requirements beyond those already established by laws or Governmentwide regulations.

CONCILIATION. See MEDIATION.

CONDITIONS OF EMPLOYMENT (COE). Under § 7103(a)(14), COE "means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise [e.g., by custom or practice], affecting working conditions, except that such term does not include policies, practices, and matters--(A) relating to political activities prohibited under subchapter III of chapter 73 of this title; (B) relating to the classification of any positions; or (C) to the extent such matters are specifically provided for by Federal statute[.]" (Emphasis added.) The fact that a statute deals with a matter doesn’t mean that everything related to that matter isn’t a condition of employment. In 55 FLRA No. 18, the Authority said the following: “The appropriate inquiry . . . is whether a statute at issue provides the Agency with the discretion to agree to the proposal.” To the extent an agency has discretion in implementing the law, that discretion would be subject to bargaining.

The duty to bargain is limited to the mandatorily negotiable conditions of employment of bargaining unit employees. In FLRA’s words: “[M]atters concerning conditions of employment are subject to collective bargaining when they are within the discretion of an agency and are not otherwise inconsistent with law or applicable rule or regulation.” 53 FLRA 625, 648; 21 FLRA 61, 10-11. Unilateral changes in COE are unfair labor practices. For examples of what doesn't constitute a COE, see: 3 FLRA No. 8 (appeal system for military appraisals), 7 FLRA No. 18 (hunting and fishing on military reservation), 8 FLRA No. 75, #1 (management access to investigatory files), 11 FLRA No. 99 (classification of positions), and 13 FLRA No. 73 (recycling discarded paper).

CONFIDENTIAL EMPLOYEE. Under § 7103(a)(14), "an employee who acts in a confidential capacity with respect to an individual who formulates or effectuates management policies in the field of labor-management relations[.]” (Emphasis added.) Under § 7112(b)(2), confidential employees must be excluded from bargaining units. Disputes over whether an employee is a confidential employee are resolved by FLRA, usually via a 5 CFR 2422.1(b) petition. Examples: 31 FLRA No. 6, 33 FLRA No. 30, 37 FLRA No. 16, 37 FLRA No. 112, 47 FLRA No. 48.

CONSULTATION. To be distinguished from negotiation. The FSLMRS provides for two types of consultation: between qualifying unions and agencies concerning agency-wide regulations (§ 7113, National consultation rights) and qualifying unions and those agencies issuing Governmentwide regulations (§ 7117(d)(1)).

CONTRACT BAR. The incumbent union is protected from challenge by a rival union if there is an agreement in effect having a term of not more than three years, except during the agreement's open period"--i.e., 105 to 60 days prior to the expiration of the agreement. § 7111(f)(3) and 5 CFR 2422.12(d) and (e) for contracts of 3 years or less or contracts of more than 3 years, respectively. Compare with election bar and certification bar.

CONTRACTING OUT. A right reserved to management by § 7106(a)(2)(B). It includes the right to determine the criteria governing the exercise of the right. For example, a proposal permitting contracting out only if the agency can demonstrate that contracting out would be “economically efficient, effective to the mission, or in the best interest of the Federal Government” directly interferes with the right to contract out. 45 FLRA No. 122. Similarly, prohibiting the contracting out of a function that had undergone a RIF for a year after the effective date of the RIF interferes with the right to contract out. 49 FLRA No. 84, #10.

Attempts to enforce the contracting-out requirements of Office of Management and the Budget (OMB) Circular A-76 through the negotiated grievance procedure have been found to be prohibited by the Circular, a Governmentwide regulation, in IRS v. FLRA, 996 F.2d 1246 (D.C. Cir. 1993), 48 FLRA No. 15 (#17), 52 FLRA No. 70, and 52 FLRA No. 125.

"COVERED BY" DOCTRINE. A doctrine under which an agency does not have to engage in midterm bargaining on particular matters because those matters are already "covered by" the existing agreement.

At one time FLRA adopted a "clear and unmistakable" test in determining whether a matter was "covered by" the contract--see, e.g., 39 FLRA No. 91. However, that test was criticized by the D.C. Circuit in Marine Corps v. FLRA, 962 F.2d 48 (1992) on the ground it nullified the terms of agreements and required endless bargaining. The Authority consequently adopted a three-prong test to determine whether there is no need to bargain on a particular subject because it already is covered by the existing agreement in 47 FLRA No. 96. Under the first prong it asks whether the express language of the contract “reasonably encompasses the subject in dispute.” See, e.g., 47 FLRA No. 116, 48 FLRA No. 89, and 49 FLRA No. 1. Under the second prong, it asks whether the subject in dispute is “inseparably bound up with” and thus an “aspect” of a subject expressly covered by the contract. See, e.g., 48 FLRA No. 10, 49 FLRA No. 130, and 51 FLRA No. 103. Under the third prong, FLRA gives controlling weight to the parties’ intent as disclosed by “bargaining history and prior agreements”--and past practice. See, e.g., 52 FLRA No. 2.

DECERTIFICATION. FLRA's withdrawal of a union's exclusive recognition because the union no longer qualifies for such recognition, usually because it has lost a representational election. However, in 7 FLRA No. 10, the Professional Air Traffic Controllers Organization (PATCO) was decertified because it engaged in a strike.

DECERTIFICATION PETITION. A petition filed by employees in an existing unit (or an individual acting on their behalf) asking that an election be held to give unit employees an opportunity to end the incumbent union's exclusive recognition. 5 CFR 2422.1(a)(2). Such a petition must be accompanied by a 30% showing of interest and be timely filed (i.e., not barred by election, certification or contract bars).

DIRECT EMPLOYEES. In 3 FLRA No. 119 the Authority defined this right to include discretion "to supervise and guide [employees] . . . in the performance of their duties on the job." In NTEU v. FLRA, 793 F.2d 371 (DC Cir. 1986), the court held, among other things, that the right to direct did not encompass the right to reward. The right to direct, by itself, rarely is used as the basis for finding a proposal nonnegotiable. However, when combined with the right to assign work, it is the basis for finding proposals establishing performance standards nonnegotiable. See, e.g., 49 FLRA No. 25.

DISCIPLINE. A right reserved to management under § 7106(a)(2)(A). The FLRA has said that the right to discipline includes the right "to investigate to determine whether discipline is justified[,]" 34 FLRA at 1156, and it "encompasses the use of the evidence obtained during the investigation." 34 FLRA at 1157. For example, a proposal requiring that complaints against an employee be in writing and identify the complainant in order to be valid excessively interferes with the right to discipline. See 47 FLRA No. 2, #27.

DISCRETION. Not all agency discretion over conditions of employment of unit employees is subject to bargaining. As the Authority noted in 55 FLRA No. 1, # 3, “[w]here law or applicable regulation vests an agency with sole and exclusive discretion over a matter, it would be contrary to law to require that discretion to be exercised through collective bargaining . . . .” The most important types of discretion reserved to management are management’s § 7106(a) “management rights.” However, there are several exceptions to those reserved rights, including those mentioned in § 7106(b).

DUES WITHHOLDING (CHECKOFF). § 7115. Dues withholding services provided by the agency to unions that win exclusive recognition or dues withholding recognition. If the former, the services must be provided without charge to the union. Employee dues assignments must be voluntary (no union or agency shop arrangements permitted under the Federal Service Labor-Management Relations Statute) and may not be revoked except at yearly intervals (see, e.g., 11 FLRA No. 101), but must be terminated when the agreement ceases to be applicable to the employee (as when the employee is temporarily promoted to a supervisory position or is detailed outside the unit--see, e.g., 25 FLRA No. 14) or when the employee is expelled from membership in the union. (Not all details to nonunit positions remove detailed employees from the unit. See, in this connection, 54 FLRA No. 34.) Agencies cannot use setoff to recoup erroneously withheld dues. See 31 FLRA No. 54.

DUES WITHHOLDING RECOGNITION. § 7115(c)(1) and 5 CFR 2422.3(d). A very limited form of recognition, introduced by the statute, under which a union that can show that it has 10% of employees in an appropriate unit as members can qualify for the right only to negotiate a dues deduction arrangement. Such recognition becomes null and void as soon as a union is certified as the exclusive representative of the unit.

DURATION CLAUSE (TERM OF AGREEMENT). Clause in a collective bargaining agreement that specifies the time period during which the agreement is in effect. Where an agreement has a term greater than three years, the agreement serves as a contract bar only during the first three years. See 5 CFR 2422.12(e). An agreement can have an automatic renewal provision, in which case the bar also would be renewed. There may be separate duration clauses for different parts of the agreement. See REOPENER CLAUSE. Duration clauses may provide for automatic renewal for a specified period of time if neither party exercises its right to reopen the agreement for renegotiation during the 190-60 day open period.

DUTY OF FAIR REPRESENTATION. § 7114(a)(1): “An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.” See NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986), where the court held that the union’s duty of fair representation is limited to matters as to which the union is the exclusive representative. Also see 28 FLRA No. 118, where FLRA said the following: “Where the union is acting as the exclusive representative of its unit members, we will continue to require that its activities be undertaken without discrimination and without regard to union membership under section 7114(a)(1). We will not, however, extend those statutory obligations to situations where the union is not acting as the exclusive representative . . . .” See 49 FLRA No. 71 for an example of a violation of this duty (members-only poll regarding seniority-based benefit system administered by union) and 46 FLRA No. 81 where FLRA found no violation because the nonmember employee against whom discipline was proposed had a right to have a representative of her own choice.

DUTY TO BARGAIN. Broadly conceived, it refers to both (1) the circumstances under which there is a duty to engage in bargaining (see, e.g., MIDTERM BARGAINING) and (2) the negotiability of specific proposals. Disputes over the former usually are processed through the Authority’s unfair labor practice procedure and frequently involve make-whole and status quo ante remedies. Disputes over the latter usually are processed through the Authority’s no-fault negotiability procedure in which the Authority determines whether proposals (or provisions disapproved by the agency head) are nonnegotiable because inconsistent with laws and regulations. In changes to 5 CFR Part 2424, effective April 1, 1999, the Authority distinguishes between “bargaining disputes” and “negotiability disputes.”

ELECTION AGREEMENT. Agreement entered into by the agency and the union(s) competing for exclusive recognition dealing with campaign procedures, election observers, date and hours of election, challenge ballot procedures, mail balloting (if used), position on the ballot, payroll period for voter eligibility, and the like. Such an agreement is subject to approval by the appropriate FLRA Regional Director. See 5 CFR 2421.20.

ELECTION BAR. One-year period after FLRA has conducted a secret-ballot election for a unit of employees, where the election did not lead to the certification of a union as exclusive representative. During this one-year period FLRA will not consider any representation petitions for that unit or any subdivisions thereof. § 7111(b) and 5 CFR 2422.12(a). See CERTIFICATION BAR and CONTRACT BAR.

EMPLOYEE. Under the Federal Service Labor-Management Relations Statute, the term "employee" includes an individual "employed in an agency" or "whose employment in an agency has ceased because of any unfair labor practice," but does not include supervisors and management officials or anyone who participates in a strike or members of the uniformed services or employees in the Foreign Service or aliens occupying positions outside the U.S. See 5 USC § 7103(a)(2).

EQUIVALENT STATUS. Status given a union challenging the incumbent union that entitles it to roughly equivalent access during the period preceding an election to facilities and services (bulletin boards, internal mail services, etc.) as that enjoyed by the incumbent union. At one time the FLRA adopted a per se rule under which it would find an activity guilty of illegal assistance to a labor organization (see § 7116(a)(3)) if it gave the raiding union access to such facilities and services before FLRA notifies the activity that the raider has equivalent status. "[A] petitioning union acquires equivalent status . . . when an appropriate Regional Director determines, and notifies the parties, that the petition includes a prima facie showing of interest and merits further processing." See 44 FLRA No. 36. However, because of Constitutional difficulties, in 52 FLRA No. 114 the Authority replaced the per se rule with a “totality of circumstances” approach.

EXCEPTIONS TO ARBITRATION AWARDS. A claim that an arbitration award is deficient "on . . . grounds similar to those applied by Federal courts in private sector labor-management relations," or because it violates law, rule or regulation. § 7122(a). Some of the "grounds similar to those applied by Federal courts" are: the award doesn't draw its essence from the agreement, the award is based on a nonfact, the arbitrator didn't conduct a fair hearing, or the arbitrator exceeded his authority. Exceptions involving the latter are claims that the award violates some law or regulation. FLRA's rulings on exceptions to arbitration awards are not normally subject to court review if the arbitration award doesn't involve resolution of an unfair labor practice processed under the negotiated grievance procedure. NTEU v. FLRA, 824 F.2d 61 (D.C. Cir. 1987). In 53 FLRA No. 152, the Authority said that it would remand those portions of arbitration awards “that are challenged by . . . exceptions and that fail to contain the factual findings necessary to determine whether the arbitrator’s legal conclusions are consistent with the applicable standard of law.” The Authority has no jurisdiction to consider exceptions to awards involving major adverse or performance-based actions. See, e.g., 55 FLRA Nos. 130 and 50. Compare with 49 FLRA No. 90 involving an award dealing with an unsatisfactory rating (but not a performance-based action).

EXCESSIVE INTERFERENCE. A balancing test that FLRA applies to proposals that are arrangements for employees adversely affected by the exercise of management’s rights in order to determine whether they are negotiable appropriate arrangements within the meaning of § 7106(b)(3). The test involves balancing the extent to which the proposal ameliorates anticipated adverse effects against the extent to which it places restrictions on the exercise of management’s rights. Compare with ABROGATION TEST.

EXCLUSIVE RECOGNITION. Under the Federal Service Labor-Management Relations Statute, exclusive recognition is normally obtained by a union as a result of receiving a majority of votes cast in a representational election. (Exclusive recognitions obtained under Executive Order 10988, which didn't require secret-ballot elections, are preserved via a "grandfather" clause.)

The rights a union is accorded as a result of being certified as the exclusive representative of the employees in a bargaining unit include, among other things, the right to negotiate bargainable aspects of the conditions of employment of bargaining unit employees, to be afforded an opportunity to be present at formal discussions, to free checkoff arrangements and, at the request of the employee, to be present at Weingarten examinations.

EXCLUSIVE REPRESENTATIVE (“of employees in an appropriate unit”--see § 7103(a)(16)). The union that is certified as the exclusive representative of a unit of employees either by virtue of having won a representation election or because it had been recognized as the exclusive representative before passage of the CSRA. It is an unfair labor practice for an agency to deal with other unions or organizations or special interest groups (or, for that matter, directly with unit employees) regarding the conditions of employment of unit employees. See EXCLUSIVE RECOGNITION. A union holding exclusive recognition is sometimes referred to as the exclusive bargaining agent of the unit.

EXECUTIVE ORDER 12871, as amended. In order to improve agency performance, the President issued Executive Order 12871 (Order). The Order, among other things, establishes a National Partnership Council (NPC) that is made up of top union, agency, and managerial/supervisory organizations. The NPC advises the President on labor-management relations, supports and fosters labor-management partnerships, and collects and disseminates information on partnerships. The Order also directs agencies to establish partnerships, provide training in alternative dispute resolution techniques, bargain on section 7106(b)(1) matters, and "evaluate progress and improvements in organizational performance resulting from the labor-management partnerships."

In 54 FLRA No. 43, where the Authority dismissed a ULP complaint involving an agency's refusal to bargain on section 7106(b)(1) matters, the Authority held that the President's directive to bargain on section 7106(b)(1) matters was not an "election" within the meaning of section 7106(b)(1). "Questions concerning the Respondent's compliance with the Executive Order, " said FLRA, "are properly resolved as a matter involving the internal management of the Executive branch." The D.C. and 9th Circuits have affirmed the Authority’s reasoning and conclusions.

EXTERNAL LIMITATIONS ON THE EXERCISE OF MANAGEMENT’S RIGHTS. The types of discretion reserved to management by § 7106 are not unfettered. Quite apart from any limitations that may be found in the collective bargaining agreement (such as an appropriate arrangement provision), its discretion must also be exercised in accordance with the laws and regulations that set limitations on management discretion (for example, OPM’s reduction-in-force regulations, 5 CFR 351). Only those external limitations on the exercise of § 7106(a)(2) rights can be enforced by the union under the negotiated grievance procedure. See APPLICABLE LAWS.

FAIR REPRESENTATION, DUTY OF. The union’s duty to represent the interests of all unit employees without regard to union membership. However, in NTEU v. FLRA, 800 F.2d 1165 (D.C. Cir. 1986), the court held that the union’s duty of fair representation is limited to matters as to which the union is the exclusive representative. (In that case, the union, which provided the services of an attorney to members in Merit Systems Protection Board (MSPB) proceedings, told an employee facing removal that the union wouldn’t provide him with attorney services because he wasn’t a member of the union.) The court dismissed the ULP because the right to appeal to MSPB does not arise out of the collective bargaining agreement and the employee was free to designate non-union representatives. Also see 28 FLRA No. 118, where FLRA said the following: “Where the union is acting as the exclusive representative of its unit members, we will continue to require that its activities be undertaken without discrimination and without regard to union membership under section 7114(a)(1). We will not, however, extend those statutory obligations to situations where the union is not acting as the exclusive representative.”

FEDERAL LABOR RELATIONS AUTHORITY (FLRA, AUTHORITY). The independent agency responsible for administering the Federal Service Labor-Management Relations Statute (FSLMRS). As such, it decides, among other things, representation issues (e.g., the bargaining unit status of certain employees), unfair labor practices (violations of any of the provisions of the FSLMRS), negotiability disputes (i.e., scope of bargaining issues), exceptions to arbitration awards, as well as resolves disputes over consultation rights regarding agency-wide and Governmentwide regulations.

The Authority's General Counsel investigates unfair labor practice (ULP) charges and decides whether to issue and prosecute ULP complaints, and the Authority’s Federal Service Impasses Panel resolves bargaining impasses. See § 7105 for a complete listing of the Authority’s powers and duties and 5 CFR Parts 2422, 2423, 2424, 2425, and 2426 for its regulations.

For more information on FLRA, see its webpage at www.access.gpo.gov/flra/.

FEDERAL MEDIATION AND CONCILIATION SERVICE (FMCS). An independent agency that provides mediators to assist the parties in negotiations. Although the bulk of its work is in the private sector, it also provides its services to the Federal sector--see § 7119(a). FMCS also maintains a roster of qualified private arbitrators, panels of which are referred to the parties upon joint request. See MEDIATION.

For more information on FMCS, see http://www.jalmc.org/thefmcs.htm

FEDERAL SERVICE IMPASSES PANEL (FSIP or Panel). Entity within FLRA that resolves bargaining impasses, chiefly by ordering the parties to adopt certain contractual provisions relating to the conditions of employment of unit employees. It was created as a strike-substitute (strikes are prohibited in the Federal sector--see 7 FLRA No. 10, where the Authority decertified the Professional Air Traffic Controllers Organization (PATCO) because it had engaged in a strike) or other economic tests of strength that frequently determine bargaining outcomes in the private sector. The Panel uses many procedures for resolving impasses, including factfinding, med-arb, final-offer interest arbitration, either by the Panel, individual members of the Panel, the Panel’s staff, or by ordering the parties to refer their impasse to an agreed-upon private arbitrator who is to provide services. Under section 7119(c)(5)(B)(iii), FSIP may "take whatever action is necessary and not inconsistent with this chapter to resolve the impasse." For example, if the parties can’t agree on particular provision(s)--i.e., contractually determined conditions of employment, FSIP has authority to tell them what to put (or not put) in their contract. However, it is not a ULP to refuse to comply with a FSIP order dealing with a permissive subject of bargaining. See 15 FLRA Nos. 65 and 100 - 104. See 5 CFR 1470 ff for FSIP’s regulations.

For more information on FSIP, see www.access.gpo.gov/flra/.

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (FSLMRS). 5 U.S.C. §§ 7101 - 7135. T