union

Union Representation – Who Can Be in a Bargaining Unit in the Federal Sector?

The current state of labor relations in the federal sector including the significant changes in the labor relations systems under both the National Security Personnel System and Max HR in the Department of Homeland Security have the potential for bringing about significant changes in bargaining units in the affected agencies. Additionally the split of The AFL-CIO provides new opportunities for union raids with consequent changes in union affiliations. The following is a brief description of the how bargaining units come into being in the federal sector. It is an introduction to how the federal representation system works and is not intended to be relied on by the readers as other than a brief overview. If you seek more in depth information call Joseph Swerdzewski & Associates.

One of the most essential questions in labor relations is who can be in a bargaining unit. Bargaining units are the basic organizational unit of labor relations. It is at the bargaining unit level that collective bargaining takes place. A union has the right to represent in collective bargaining all employees in a bargaining unit. Through a procedure called the representation process employees, who can be in a bargaining unit, submit a petition to the Federal Labor Relations Authority (FLRA).

In the case of a union petitioning for a new bargaining unit the first question posed by this process is whether the bargaining unit the union set forth in its petition is an appropriate unit of employees. It does not have to be the best possible unit but is a unit that ensures a clear and identifiable community of interest among employees in the proposed unit, promotes effective dealings with the agency involved and promotes the efficiency of the operations of the agency. An agency has the right to challenge the appropriateness of a unit if it disagrees with the union. The determination of what is the appropriate unit is an important decision because along with its petition a union is required to submit a 30% showing of interest of employees in the proposed unit. A showing of interest is a signed card or petition signifying the employees want an election to determine if there should be a union representing them. If 30% per cent of the employees in this proposed unit have not signed the petition the petition may be dismissed.

If this grouping of employees petitioning is appropriate to be a bargaining unit and there is a sufficient showing of interest then the next important question is whether all the employees petitioned for as individuals may be in bargaining unit. Eligibility of employees to be in a unit is based on the duties they perform. Employees who are supervisors, management officials, confidential employees, employees who are not engaged in personnel work in a purely clerical capacity and employees engaged in intelligence, counterintelligence, investigative or security work that directly affects national security can not be in a bargaining unit. Eligibility to be in the unit is required for employees to be permitted to vote. Eligibility questions must be resolved before the votes of employees who are challenged as to their eligibility can be counted if their votes would be determinative of the outcome of the election.

In the federal sector an election must be held to decide whether the employees will be represented by a union. To be successful in the election a union must win a simple majority of ballots cast regardless of the size of the prospective bargaining unit. Unions are entitled to campaign for employees’ votes. Management has the right to restrict unlawful campaigning including access to facilities which it is not required by statute to provide. It is not unusual for unfair labor practices to be filed for objectionable behavior of management or unions. The election is conducted by the FLRA with both union and management having the right to act as observers. At the election observers may challenge the eligibility of the voters. These challenges can result in ballots not being counted. The final election outcome is certified by the FLRA. If the union is successful the FLRA issues a certificate of election which sets forth a statement of the scope of the new bargaining unit.

This same election process is used when one union "raids" another by filing a petition within the appropriate time period allowed by statute to seek to become the new exclusive representative of the bargaining unit. If there are changes in the structure of the agency or activity as a result of such things as reorganizations or consolidation of functions these changes may lead to changes in the bargaining unit itself. Various petitions can be filed with the FLRA to determine the bargaining unit status of the employees and the continued status of the unit itself. These petitions are extremely important to both union and management to clear up bargaining unit status to effectively operate the collective bargaining system.