2008 Steward's Manual -
Federal Service Labor-Management Relations Statute
This section is written to give you a general knowledge of the Federal Labor Relations Statute commonly referred to as "The Civil Service Reform Act of 1978" or "Title VII". It is presented in plain language with definitions of the sections of the law that you, as stewards, will have to deal with most often. You may link to this law site to read the actual statute - FSL-MR Statute.
You may also link to the FLRA web site to read their regulations that enforce the Statute.
Our attempt here is by no means an interpretation of the law but merely an explanation of the law in layman's terms. Of course, if you have difficulty understanding or using the provisions of the law, contact your Regional Councilperson or Regional Chairperson.
This Statute applies to employees of all agencies within the Executive branch of the Government, as well as the Library of Congress and the Government Printing Office. For the purposes of this Statute, the following definitions outline the limits of these terms.
Rights
- Sole representation of Unit Employees
The labor organization is the exclusive representative of the employees in the unit it represents, and is entitled to act for and negotiate collective bargaining agreements covering all employees in the unit.
- Representation at Formal Discussions
The exclusive representative must be given the opportunity to be represented at 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 practice or other general condition of employment.
- Representation at Employee Examination/Interviews
The exclusive representative must be given the opportunity to be represented at any examination of a unit employee by a representative of the agency in connection with an investigation if:
-- the employee reasonably believes that the examination may result in disciplinary action against the employee, and
-- the employee requests representation.
- Notice of Changes to Conditions of Employment
The exclusive representative must be given advance notice of any proposed changes to established agency conditions of employment and an opportunity to negotiate over such proposed changes to the extent required by Statute, absent any clear and unmistakable waiver of this statutory right.
- Representation without Discrimination
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.
Unfair Labor Practices of Agencies
Unfair labor practice charges are filed byt he Union at the National level. Below is a brief description of what constitutes an unfair labor practice. Bring possible violations to the attention of your Regional Chair. Note: A violation of the collective bargaining agreement is not an "unfair labor practice." It is a grievance which can only be resolved through the negotiated grievance procedure.
Under Section 7116, (a)(1), management shall not interfere with, restrain or coerce and employee in the exercise of it rights under the Statute. Prohibited interference by an agency with the rights of Federal employees to organize, form, join or assist a labor organization, to bargain collectively, or to refrain from any of these activities constitutes a violation of this subsection. The following examples have been found to violate this section:
-- threatening employees with reprisal if they should exercise their rights under the Statute
-- making threatening statements to employees in order to discourage the filing of a representation petition
-- conveying the impression that employee's conduct will be closely monitored as a result of filing an unfair labor practice charge
-- making implied threats against union representative for aiding employees in the filing and prosecution of negotiated grievances
Under Subsection (a)(2), it shall be an unfair labor practice for an agency to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion or other conditions of employment. Examples:
-- issuing a written reprimand to a unit employee in retaliation for activity as a representative of the union
-- failing to promote an employee because of that employees union activities or inactivates
Under Subsection (a)(3), this subsection provides that management shall not 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 statue. Examples of improper management activate:
-- taking an active part in assisting a labor organization in organizing its employees, such a handing out membership cards or petitions
-- campaigning for any particular individual running for a union office
NOTE: The expression of any personal view, argument, opinion or the making of any statement which:
-- publicizes the fact of a representational election and encourages employees to exercise their right to vote in such election,
-- corrects the record with respect to any false or misleading statement by any person, or
-- informs employees of the Government's policy relating to labor-management relations and representation, shall not, if the expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions, constitute an unfair labor practice under any provision of this Statute, or constitute grounds for the setting aside of any election conducted under any provisions of this Statute.
Under Subsection (a)(4), it shall be an unfair labor practice for an agency to discipline or otherwise discriminate against an employee because the employee has filed a complaint, affidavit, or petition, or has given any information or testimony under this chapter.
This provision prohibits any kinds of discriminating action against an employee, whether or not he/she is a member of the union, when that employee files a charge or gives testimony in any proceeding under the Statute. The intent of this section is to guard the right of employees within the Federal Service to utilize the processes provided by the Statute without fear of discipline or other forma of reprisal. Examples of violations:
-- demoting an employee because the employee testified at a proceeding under the Statute
-- transferring an employee to an undesirable job because he or she filed an unfair labor practice charge
Under Subsection (a)(5), it shall be an unfair labor practice to refuse to consult or negotiate in good faith with a labor organization as required by this chapter. This section protects many of the different rights of an exclusive representative, such as the right to bargain collectively and in good faith over conditions of employment, the right to be the sole representative for its appropriate unit of employees, and the right to be notified of proposed changes in conditions of employment, Examples of violations:
-- unilaterally implementing a reorganization without proper notice to the exclusive representative
-- bypassing the exclusive representative and directly notifying employees of changes in working conditions
-- refusing to provide the labor organization, upon request, with available and necessary information and data which is required to fulfill its representational obligations
-- unilaterally hanging an established past practice, absent a clear and unmistakable waiver of bargaining rights
(a)(6) Failing or refusing to cooperate in impasse procedures and impasse decisions as required by the Statute is an unfair labor practice. Example:
-- refusing and failing to provide official time, travel and per diem for attendance at a Panel hearing
Under Subsection (a)(7), it shall be an unfair labor practice for an agency to enforce any rule or regulation (other than a rule or regulation implementing Section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed.
(Section 2302 referred to herein is a general definition of prohibited personnel practices as applicable under merit system principles in Title I of the Civil Service Reform Act.)
Under Subsection (a)(8), to otherwise fail or refuse to comply with any provision of the Statute is an unfair labor practice. Examples:
-- refusing to allow an employee union representation during an interview with management when such a meeting could reasonably lead to disciplinary action and the employer requested representation
-- refusing to provide official time and necessary transportation and per diem expenses for contract negotiations, as occurs during an employee's regular work hours and when the employee would otherwise be in a work or paid leave status
-- refusing to honor dues allotment authorizations for an exclusive representative submitted by unit employees in the agency
-- refusing to provide the exclusive representative the opportunity to be represented at a formal discussion within the meaning of section 7114(a)(2)(A)
Unfair Labor Practices of Labor Organizations
Section 7116(b)(1) forbids a union to interfere with, restrain or coerce employees in the exercise of their rights guaranteed by the Statute. Similar to (a)(1), this section protects the rights of all employees whether or not they choose to join a union. Example:
-- threatening employees with physical harm if they should exercise their right to refrain from joining a union
(b)(2) A labor organization shall not cause or attempt to cause an agency to discriminate against any employee in the exercise by the employee of any right under the Statute. Examples:
-- attempting to get management to discharge a unit employee because he or she was attempting to encourage
-- another labor organization to petition for recognition
-- attempting to get management to discipline unit employees who did not join the union
Under subsection (b)(3), it shall be an unfair labor practice for a union to 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 member's duties as an employee. An employee is protected from any form of harassment by the union when that employee is performing his or her assigned duties. Examples could be:
-- imposing fines on unit employees who exceed a certain per-determined standard of efficiency
-- being restricted from serving as an officer of the union if the employee has received an outstanding performance award
Under Subsection (b)(4), it is an unfair labor practice to discriminate against an employee with regard to the terms or 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.
Under Subsection (b)(5), a labor organization must not refuse to consult or negotiate in good faith with an agency as required by the Statute. This includes, among others, the union's responsibility to approach negotiations with a sincere resolve to reach agreement, and to be represented by duly authorized representatives. Example:
-- delaying the state of negotiations for an unreasonable length of time, where the agency attempts to proceed
Under Subsection (b)(6), a labor organization may not fail or refuse to cooperate in impasse procedures and impasse decisions as required by the Statute. This is identical to the agency requirement under 7116 (a)(6).
Under Subsection (b)(7), it shall be an unfair labor practice for a labor organization to (A) 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 (B) to condone any activity described in (A) above by failing to take action to prevent or stop such activity.
Nothing in this paragraph shall result in any informational picketing which does not interfere with an agency's operation being considered as an unfair labor practice.
In the case of any labor organization which by omission or commission has willfully and intentionally, with regard to any strike, work stoppage, or slowdown, violated section 7116(b)(7) the Authority shall, upon appropriate finding by the Authority of such violation-
-- revoke the exclusive recognition status of the labor organization, which shall then immediately cease to the legally entitled and obligated to represent employees in the unit; or
-- take any other appropriate disciplinary action.
Under Subsection (b)(8), it is an unfair labor practice for a labor organization to otherwise fail or refuse to comply with any provision of this chapter.
Administration of the Statute
1. General Counsel - Unfair Labor Practices Cases (Section 7118 of the Statute and Part 2423 of the rules and regulations.)
In order to begin the processes of the General Counsel in unfair labor practice cases, a charge must be filed by either an agency, a labor organization, or an individual with the appropriate Regional Director of the FLRA, as established in the rules and regulations. Such a charge must be filed within six months from the date the alleged unfair labor practice occurred. As noted above, this process is handled byt he Union at the national level.
Once a charge has been filed with the FLRA by NWSEO, the FLRA Regional Director will conduct an investigation of the charge as is deemed necessary. During the course of the investigation, all parties involved are given an opportunity to present their views to the Regional Director.
If it is determined that a charge has not been timely filed, or that it fails to state an unfair labor practice, or for other appropriate reasons, the Regional Director may request the charging party to withdraw the charge or, in the absence of such withdrawal, decline to issue a complaint, providing the parties with a written statement of the reasons for not issuing a complaint. Such a decision by the Regional Director not to issue a complaint may be reviewed by the General Counsel.
If it is determined that a charge is timely and has merit, a complaint, absent settlement, will be issued by the General Counsel and the General Counsel will prosecute the complaint with NWSEO's assistance.
At any stage of a proceeding prior to hearing, where time, the nature of the proceeding, and the public interest permit, all interested parties shall have the opportunity to submit to the Regional Director with whom the charge was filed, for consideration, all facts and arguments concerning offers of settlement, or proposals of adjustment. Consistent with this policy, even after issuance of a complaint, the Authority favors the settlement of issues.
The Authority has appointed Administrative Law Judges to hear unfair labor practice cases prosecuted by the General Counsel. Decisions of the Administrative Law Judges are transmitted to the Authority, which may be affirmed or reversed in whole or in part, or receive such other disposition as the Authority deems appropriate.
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