SUBCHAPTER I--
GENERAL PROVISIONS
§ 7101. Findings and purpose
(a) The Congress finds
that--
(1) experience in both
private and public employment indicates that the statutory protection of the
right of employees to organize, bargain collectively, and participate through
labor organizations of their own choosing in decisions which affect them--
(A) safeguards the
public interest,
(B) contributes to the
effective conduct of public business, and
(C) facilitates and
encourages the amicable settlements of disputes between employees and their
employers involving conditions of employment; and
(2) the public interest
demands the highest standards of employee performance and the continued
development and implementation of modern and progressive work practices to
facilitate and improve employee performance and the efficient accomplishment of
the operations of the Government.
Therefore, labor organizations and collective bargaining in the civil
service are in the public interest.
(b) It is the purpose
of this chapter to prescribe certain rights and obligations of the employees of
the Federal Government and to establish procedures which are designed to meet
the special requirements and needs of the Government. The provisions of this
chapter should be interpreted in a manner consistent with the requirement of an
effective and efficient Government.
§ 7102. Employees' rights
Each employee shall have the right to
form, join, or assist any labor organization, or to refrain from any such
activity, freely and without fear of penalty or reprisal, and each employee
shall be protected in the exercise of such right. Except as otherwise provided
under this chapter, such right includes the right--
(1) to act for a labor
organization in the capacity of a representative and the right, in that
capacity, to present the views of the labor organization to heads of agencies
and other officials of the executive branch of the Government, the Congress, or
other appropriate authorities, and
(2) to engage in
collective bargaining with respect to conditions of employment through
representatives chosen by employees under this chapter.
§ 7103. Definitions; application
(a) For the purpose of
this chapter--
(1) "person" means an
individual, labor organization, or agency;
(2) "employee" means an
individual--
(A) employed in an
agency; or
(B) whose employment in
an agency has ceased because of any unfair labor practice under section 7116 of
this title and who has not obtained any other regular and substantially
equivalent employment, as determined under regulations prescribed by the
Federal Labor Relations Authority;
but does not include--
(i) an alien or
noncitizen of the United States who occupies a position outside the United
States;
(ii) a member of the
uniformed services;
(iii) a supervisor or a
management official;
(iv) an officer or
employee in the Foreign Service of the United States employed in the Department
of State, the International Communication Agency, the Agency for International
Development, the Department of Agriculture, or the Department of Commerce; or
(v) any person who
participates in a strike in violation of section 7311 of this title;
(3) "agency" means an
Executive agency (including a nonappropriated fund instrumentality described in
section 2105(c) of this title and the Veterans' Canteen Service, Department of
Veterans Affairs), the Library of Congress, the Government Printing Office, and
the Smithsonian Institution, but does not include--
(A) the General
Accounting Office;
(B) the Federal Bureau
of Investigation;
(C) the Central
Intelligence Agency;
(D) the National
Security Agency;
(E) the Tennessee
Valley Authority;
(F) the Federal Labor
Relations Authority;
(G) the Federal Service
Impasses Panel; or
(H) the United States
Secret Service and the United States Secret Service Uniformed Division.
(4) "labor
organization" means an organization composed in whole or in part of employees,
in which employees participate and pay dues, and which has as a purpose the
dealing with an agency concerning grievances and conditions of employment, but
does not include--
(A) an organization
which, by its constitution, bylaws, tacit agreement among its members, or
otherwise, denies membership because of race, color, creed, national origin,
sex, age, preferential or nonpreferential civil service status, political
affiliation, marital status, or handicapping condition;
(B) an organization
which advocates the overthrow of the constitutional form of government of the
United States;
(C) an organization
sponsored by an agency; or
(D) an organization
which participates in the conduct of a strike against the Government or any
agency thereof or imposes a duty or obligation to conduct, assist, or
participate in such a strike;
(5) "dues" means dues,
fees, and assessments;
(6) "Authority" means
the Federal Labor Relations Authority described in section 7104(a) of this
title;
(7) "Panel" means the
Federal Service Impasses Panel described in section 7119(c) of this title;
(8) "collective
bargaining agreement" means an agreement entered into as a result of collective
bargaining pursuant to the provisions of this chapter;
(9) "grievance" means
any complaint--
(A) by any employee
concerning any matter relating to the employment of the employee;
(B) by any labor
organization concerning any matter relating to the employment of any employee;
or
(C) by any employee,
labor organization, or agency concerning--
(i) the effect or
interpretation, or a claim of breach, of a collective bargaining agreement; or
(ii) any claimed
violation, misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment;
(10) "supervisor" means
an individual employed by an agency having authority in the interest of the
agency to hire, direct, assign, promote, reward, transfer, furlough, layoff,
recall, suspend, discipline, or remove employees, to adjust their grievances,
or to effectively recommend such action, if the exercise of the authority is
not merely routine or clerical in nature but requires the consistent exercise
of independent judgment, except that, with respect to any unit which includes
firefighters or nurses, the term "supervisor" includes only those individuals
who devote a preponderance of their employment time to exercising such
authority;
(11) "management
official" means an individual employed by an agency in a position the duties
and responsibilities of which require or authorize the individual to formulate,
determine, or influence the policies of the agency;
(12) "collective
bargaining" means the performance of the mutual obligation of the
representative of an agency and the exclusive representative of employees in an
appropriate unit in the agency to meet at reasonable times and to consult and
bargain in a good-faith effort to reach agreement with respect to the
conditions of employment affecting such employees and to execute, if requested
by either party, a written document incorporating any collective bargaining
agreement reached, but the obligation referred to in this paragraph does not
compel either party to agree to a proposal or to make a concession;
(13) "confidential
employee" means 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;
(14) "conditions of
employment" means personnel policies, practices, and matters, whether
established by rule, regulation, or otherwise, 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 position; or
(C) to the extent such
matters are specifically provided for by Federal statute;
(15) "professional
employee" means--
(A) an employee engaged
in the performance of work--
(i) requiring knowledge
of an advanced type in a field of science or learning customarily acquired by a
prolonged course of specialized intellectual instruction and study in an
institution of higher learning or a hospital (as distinguished from knowledge
acquired by a general academic education, or from an apprenticeship, or from
training in the performance of routine mental, manual, mechanical, or physical
activities);
(ii) requiring the
consistent exercise of discretion and judgment in its performance;
(iii) which is
predominantly intellectual and varied in character (as distinguished from
routine mental, manual, mechanical, or physical work); and
(iv) which is of such
character that the output produced or the result accomplished by such work
cannot be standardized in relation to a given period of time; or
(B) an employee who has
completed the courses of specialized intellectual instruction and study
described in subparagraph (A)(i) of this paragraph and is performing related
work under appropriate direction or guidance to qualify the employee as a
professional employee described in subparagraph (A) of this paragraph;
(16) "exclusive
representative" means any labor organization which--
(A) is certified as the
exclusive representative of employees in an appropriate unit pursuant to
section 7111 of this title; or
(B) was recognized by
an agency immediately before the effective date of this chapter as the
exclusive representative of employees in an appropriate unit--
(i) on the basis of an
election; or
(ii) on any basis other
than an election,
and continues to be so recognized in accordance with the provisions of
this chapter;
(17) "firefighter"
means any employee engaged in the performance of work directly connected with
the control and extinguishment of fires or the maintenance and use firefighting
apparatus and equipment; and
(18) "United States"
means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico,
Guam, the Virgin Islands, the Trust Territory of the Pacific Islands, and any
territory or possession of the United States.
(b)(1) The President
may issue an order excluding any agency or subdivision thereof from coverage
under this chapter if the President determines that--
(A) the agency or
subdivision has as a primary function intelligence, counterintelligence,
investigative, or national security work, and
(B) the provisions of
this chapter cannot be applied to that agency or subdivision in a manner
consistent with national security requirements and considerations.
(2) The President may
issue an order suspending any provision of this chapter with respect to any
agency, installation, or activity located outside the 50 States and the
District of Columbia, if the President determines that the suspension is
necessary in the interest of national security.
§ 7104. Federal Labor Relations
Authority
(a) The Federal Labor
Relations Authority is composed of three members, not more than 2 of whom may
be adherents of the same political party. No member shall engage in any other
business or employment or hold another office or position in the Government of
the United States except as otherwise provided by law.
(b) Members of the
Authority shall be appointed by the President by and with the advice and
consent of the Senate, and may be removed by the President only upon notice and
hearing and only for inefficiency, neglect of duty, or malfeasance in office.
The President shall designate one member to serve as Chairman of the Authority.
The Chairman is the chief executive and administrative officer of the
Authority.
(c) A member of the
Authority shall be appointed for a term of 5 years. An individual chosen to
fill a vacancy shall be appointed for the unexpired term of the member
replaced. The term of any member shall not expire before the earlier of--
(1) the date on which
the member's successor takes office, or
(2) the last day of the
Congress beginning after the date on which the member's term of office would
(but for this paragraph) expire.
(d) A vacancy in the
Authority shall not impair the right of the remaining members to exercise all
of the powers of the Authority.
(e) The Authority shall
make an annual report to the President for transmittal to the Congress which
shall include information as to the cases it has heard and decisions it has
rendered.
(f)(1) The General
Counsel of the Authority shall be appointed by the President, by and with the
advice and consent of the Senate, for a term of 5 years. The General Counsel
may be removed at any time by the President. The General Counsel shall hold no
other office or position in the Government of the United States except as
provided by law.
(2) The General Counsel
may--
(A) investigate alleged
unfair labor practices under this chapter,
(B) file and prosecute
complaints under this chapter, and
(C) exercise such other
powers of the Authority as the Authority may prescribe.
(3) The General Counsel
shall have direct authority over, and responsibility for, all employees in the
office of General Counsel, including employees of the General Counsel in the
regional offices of the Authority.
§ 7105. Powers and duties of the
Authority
(a)(1) The Authority
shall provide leadership in establishing policies and guidance relating to
matters under this chapter, and, except as otherwise provided, shall be
responsible for carrying out the purpose of this chapter.
(2) The Authority
shall, to the extent provided in this chapter and in accordance with
regulations prescribed by the Authority--
(A) determine the
appropriateness of units for labor organization representation under section
7112 of this title;
(B) supervise or
conduct elections to determine whether a labor organization has been selected
as an exclusive representative by a majority of the employees in an appropriate
unit and otherwise administer the provisions of section 7111 of this title
relating to the according of exclusive recognition to labor organizations;
(C) prescribe criteria
and resolve issues relating to the granting of national consultation rights
under section 7113 of this title;
(D) prescribe criteria
and resolve issues relating to determining compelling need for agency rules or
regulations under section 7117(b) of this title;
(E) resolve issues
relating to the duty to bargain in good faith under section 7117(c) of this
title;
(F) prescribe criteria
relating to the granting of consultation rights with respect to conditions of
employment under section 7117(d) of this title;
(G) conduct hearings
and resolve complaints of unfair labor practices under section 7118 of this
title;
(H) resolve exceptions
to arbitrator's awards under section 7122 of this title; and
(I) take such other
actions as are necessary and appropriate to effectively administer the
provisions of this chapter.
(b) The Authority shall
adopt an official seal which shall be judicially noticed.
(c) The principal
office of the Authority shall be in or about the District of Columbia, but the
Authority may meet and exercise any or all of its powers at any time or place.
Except as otherwise expressly provided by law, the Authority may, by one or
more of its members or by such agents as it may designate, make any appropriate
inquiry necessary to carry out its duties wherever persons subject to this
chapter are located. Any member who participates in the inquiry shall not be
disqualified from later participating in a decision of the Authority in any
case relating to the inquiry.
(d) The Authority shall
appoint an Executive Director and such regional directors, administrative law
judges under section 3105 of this title, and other individuals as it may from
time to time find necessary for the proper performance of its functions. The
Authority may delegate to officers and employees appointed under this
subsection authority to perform such duties and make such expenditures as may
be necessary.
(e)(1) The Authority
may delegate to any regional director its authority under this chapter--
(A) to determine
whether a group of employees is an appropriate unit;
(B) to conduct
investigations and to provide for hearings;
(C) to determine
whether a question of representation exists and to direct an election; and
(D) to supervise or
conduct secret ballot elections and certify the results thereof.
(2) The Authority may
delegate to any administrative law judge appointed under subsection (d) of this
section its authority under section 7118 of this title to determine whether any
person has engaged in or is engaging in an unfair labor practice.
(f) If the Authority
delegates any authority to any regional director or administrative law judge to
take any action pursuant to subsection (e) of this section, the Authority may,
upon application by any interested person filed within 60 days after the date
of the action, review such action, but the review shall not, unless
specifically ordered by the Authority, operate as a stay of action. The
Authority may affirm, modify, or reverse any action reviewed under this
subsection. If the Authority does not undertake to grant review of the action
under this subsection within 60 days after the later of--
(1) the date of the
action; or
(2) the date of the
filing of any application under this subsection for review of the action;
the action shall become the action of the Authority at the end of such
60-day period.
(g) In order to carry
out its functions under this chapter, the Authority may--
(1) hold hearings;
(2) administer oaths,
take the testimony or deposition of any person under oath, and issue subpenas
as provided in section 7132 of this title; and
(3) may require an
agency or a labor organization to cease and desist from violations of this
chapter and require it to take any remedial action it considers appropriate to
carry out the policies of this chapter.
(h) Except as provided
in section 518 of title 28, relating to litigation before the Supreme Court,
attorneys designated by the Authority may appear for the Authority and
represent the Authority in any civil action brought in connection with any
function carried out by the Authority pursuant to this title or as otherwise
authorized by law.
(i) In the exercise of
the functions of the Authority under this title, the Authority may request from
the Director of the Office of Personnel Management an advisory opinion
concerning the proper interpretation of rules, regulations, or policy
directives issued by the Office of Personnel Management in connection with any
matter before the Authority.
§ 7106. Management rights
(a) Subject to
subsection (b) of this section, nothing in this chapter shall affect the
authority of any management official of any agency--
(1) to determine the
mission, budget, organization, number of employees, and internal security
practices of the agency; and
(2) in accordance with
applicable laws--
(A) to hire, assign,
direct, layoff, and retain employees in the agency, or to suspend, remove,
reduce in grade or pay, or take other disciplinary action against such
employees;
(B) to assign work, to
make determinations with respect to contracting out, and to determine the
personnel by which agency operations shall be conducted;
(C) with respect to
filling positions, to make selections for appointments from--
(i) among properly
ranked and certified candidates for promotion; or
(ii) any other
appropriate source; and
(D) to take whatever
actions may be necessary to carry out the agency mission during emergencies.
(b) Nothing in this
section shall preclude any agency and any labor organization from negotiating--
(1) at the election of
the agency, on the numbers, types, and grades of employees or positions
assigned to any organizational subdivision, work project, or tour of duty, or
on the technology, methods, and means of performing work;
(2) procedures which
management officials of the agency will observe in exercising any authority
under this section; or
(3) appropriate
arrangements for employees adversely affected by the exercise of any authority
under this section by such management officials.
SUBCHAPTER II--
RIGHTS AND DUTIES OF AGENCIES
AND
LABOR ORGANIZATIONS
§ 7111. Exclusive recognition of
labor organizations
(a) An agency shall
accord exclusive recognition to a labor organization if the organization has
been selected as the representative, in a secret ballot election, by a majority
of the employees in an appropriate unit who cast valid ballots in the election.
(b) If a petition is
filed with the Authority--
(1) by any person
alleging--
(A) in the case of an
appropriate unit for which there is no exclusive representative, that 30
percent of the employees in the appropriate unit wish to be represented for the
purpose of collective bargaining by an exclusive representative, or
(B) in the case of an
appropriate unit for which there is an exclusive representative, that 30
percent of the employees in the unit allege that the exclusive representative
is no longer the representative of the majority of the employees in the unit;
or
(2) by any person
seeking clarification of, or an amendment to, a certification then in effect or
a matter relating to representation;
the Authority shall investigate the petition, and if it has reasonable
cause to believe that a question of representation exists, it shall provide an
opportunity for a hearing (for which a transcript shall be kept) after a
reasonable notice. If the Authority finds on the record of the hearing that a
question of representation exists, the Authority shall supervise or conduct an
election on the question by secret ballot and shall certify the results
thereof. An election under this subsection shall not be conducted in any
appropriate unit or in any subdivision thereof within which, in the preceding
12 calendar months, a valid election under this subsection has been held.
(c) A labor
organization which--
(1) has been designated
by at least 10 percent of the employees in the unit specified in any petition
filed pursuant to subsection (b) of this section;
(2) has submitted a
valid copy of a current or recently expired collective bargaining agreement for
the unit; or
(3) has submitted other
evidence that it is the exclusive representative of the employees involved;
may intervene with respect to a petition filed pursuant to subsection
(b) of this section and shall be placed on the ballot of any election under
such subsection (b) with respect to the petition.
(d) The Authority shall
determine who is eligible to vote in any election under this section and shall
establish rules governing any such election, which shall include rules allowing
employees eligible to vote the opportunity to choose--
(1) from labor
organizations on the ballot, that labor organization which the employees wish
to have represent them; or
(2) not to be
represented by a labor organization.
In any election in which no choice on the ballot receives a majority of
the votes cast, a runoff election shall be conducted between the two choices
receiving the highest number of votes. A labor organization which receives the
majority of the votes cast in an election shall be certified by the Authority
as the exclusive representative.
(e) A labor
organization seeking exclusive recognition shall submit to the Authority and
the agency involved a roster of its officers and representatives, a copy of its
constitution and bylaws, and a statement of its objectives.
(f) Exclusive
recognition shall not be accorded to a labor organization--
(1) if the Authority
determines that the labor organization is subject to corrupt influences or
influences opposed to democratic principles;
(2) in the case of a
petition filed pursuant to subsection (b)(1)(A) of this section, if there is
not credible evidence that at least 30 percent of the employees in the unit
specified in the petition wish to be represented for the purpose of collective
bargaining by the labor organization seeking exclusive recognition;
(3) if there is then in
effect a lawful written collective bargaining agreement between the agency
involved and an exclusive representative (other than the labor organization
seeking exclusive recognition) covering any employees included in the unit
specified in the petition, unless--
(A) the collective
bargaining agreement has been in effect for more than 3 years, or
(B) the petition for
exclusive recognition is filed not more than 105 days and not less than 60 days
before the expiration date of the collective bargaining agreement; or
(4) if the Authority
has, within the previous 12 calendar months, conducted a secret ballot election
for the unit described in any petition under this section and in such election
a majority of the employees voting chose a labor organization for certification
as the unit's exclusive representative.
(g) Nothing in this
section shall be construed to prohibit the waiving of hearings by stipulation
for the purpose of a consent election in conformity with regulations and rules
or decisions of the Authority.
§ 7112. Determination of appropriate
units for labor organization representation
(a) The Authority shall
determine the appropriateness of any unit. The Authority shall determine in
each case whether, in order to ensure employees the fullest freedom in
exercising the rights guaranteed under this chapter, the appropriate unit
should be established on an agency, plant, installation, functional, or other
basis and shall determine any unit to be an appropriate unit only if the
determination will ensure a clear and identifiable community of interest among
the employees in the unit and will promote effective dealings with, and
efficiency of the operations of the agency involved.
(b) A unit shall not be
determined to be appropriate under this section solely on the basis of the
extent to which employees in the proposed unit have organized, nor shall a unit
be determined to be appropriate if it includes--
(1) except as provided
under section 7135(a)(2) of this title, any management official or supervisor;
(2) a confidential
employee;
(3) an employee engaged
in personnel work in other than a purely clerical capacity;
(4) an employee engaged
in administering the provisions of this chapter;
(5) both professional
employees and other employees, unless a majority of the professional employees
vote for inclusion in the unit;
(6) any employee
engaged in intelligence, counterintelligence, investigative, or security work
which directly affects national security; or
(7) any employee
primarily engaged in investigation or audit functions relating to the work of
individuals employed by an agency whose duties directly affect the internal
security of the agency, but only if the functions are undertaken to ensure that
the duties are discharged honestly and with integrity.
(c) Any employee who is
engaged in administering any provision of law relating to labor-management
relations may not be represented by a labor organization--
(1) which represents
other individuals to whom such provision applies; or
(2) which is affiliated
directly or indirectly with an organization which represents other individuals
to whom such provision applies.
(d) Two or more units
which are in an agency and for which a labor organization is the exclusive
representative may, upon petition by the agency or labor organization, be
consolidated with or without an election into a single larger unit if the
Authority considers the larger unit to be appropriate. The Authority shall
certify the labor organization as the exclusive representative of the new
larger unit.
§ 7113. National consultation rights
(a) If, in connection
with any agency, no labor organization has been accorded exclusive recognition
on an agency basis, a labor organization which is the exclusive representative
of a substantial number of the employees of the agency, as determined in
accordance with criteria prescribed by the Authority, shall be granted national
consultation rights by the agency. National consultation rights shall terminate
when the labor organization no longer meets the criteria prescribed by the
Authority. Any issue relating to any labor organization's eligibility for, or
continuation of, national consultation rights shall be subject to determination
by the Authority.
(b)(1) Any labor
organization having national consultation rights in connection with any agency
under subsection (a) of this section shall--
(A) be informed of any
substantive change in conditions of employment proposed by the agency, and
(B) be permitted
reasonable time to present its views and recommendations regarding the changes.
(2) If any views or
recommendations are presented under paragraph (1) of this subsection to an
agency by any labor organization--
(A) the agency shall
consider the views or recommendations before taking final action on any matter
with respect to which the views or recommendations are presented; and
(B) the agency shall
provide the labor organization a written statement of the reasons for taking
the final action.
(c) Nothing in this
section shall be construed to limit the right of any agency or exclusive
representative to engage in collective bargaining.
§ 7114. Representation rights and
duties
(a)(1) A labor
organization which has been accorded exclusive recognition 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. 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.
(2) An exclusive
representative of an appropriate unit in an agency shall be given the
opportunity to be represented at--
(A) 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; or
(B) any examination of
an employee in the unit by a representative of the agency in connection with an
investigation if--
(i) the employee
reasonably believes that the examination may result in disciplinary action
against the employee; and
(ii) the employee
requests representation.
(3) Each agency shall
annually inform its employees of their rights under paragraph (2)(B) of this
subsection.
(4) Any agency and any
exclusive representative in any appropriate unit in the agency, through
appropriate representatives, shall meet and negotiate in good faith for the
purposes of arriving at a collective bargaining agreement. In addition, the
agency and the exclusive representative may determine appropriate techniques,
consistent with the provisions of section 7119 of this title, to assist in any
negotiation.
(5) The rights of an
exclusive representative under the provisions of this subsection shall not be
construed to preclude an employee from--
(A) being represented
by an attorney or other representative, other than the exclusive
representative, of the employee's own choosing in any grievance or appeal
action; or
(B) exercising
grievance or appellate rights established by law, rule, or regulation;
except in the case of grievance or appeal procedures negotiated under
this chapter.
(b) The duty of an
agency and an exclusive representative to negotiate in good faith under
subsection (a) of this section shall include the obligation--
(1) to approach the
negotiations with a sincere resolve to reach a collective bargaining agreement;
(2) to be represented
at the negotiations by duly authorized representatives prepared to discuss and
negotiate on any condition of employment;
(3) to meet at
reasonable times and convenient places as frequently as may be necessary, and
to avoid unnecessary delays;
(4) in the case of an
agency, to furnish to the exclusive representative involved, or its authorized
representative, upon request and, to the extent not prohibited by law, data--
(A) which is normally
maintained by the agency in the regular course of business;
(B) which is reasonably
available and necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining; and
(C) which does not
constitute guidance, advice, counsel, or training provided for management
officials or supervisors, relating to collective bargaining; and
(5) if agreement is
reached, to execute on the request of any party to the negotiation a written
document embodying the agreed terms, and to take such steps as are necessary to
implement such agreement.
(c)(1) An agreement
between any agency and an exclusive representative shall be subject to approval
by the head of the agency.
(2) The head of the
agency shall approve the agreement within 30 days from the date the agreement
is executed if the agreement is in accordance with the provisions of this
chapter and any other applicable law, rule, or regulation (unless the agency
has granted an exception to the provision).
(3) If the head of the
agency does not approve or disapprove the agreement within the 30-day period,
the agreement shall take effect and shall be binding on the agency and the
exclusive representative subject to the provisions of this chapter and any
other applicable law, rule, or regulation.
(4) A local agreement
subject to a national or other controlling agreement at a higher level shall be
approved under the procedures of the controlling agreement or, if none, under
regulations prescribed by the agency.
§ 7115. Allotments to
representatives
(a) If an agency has
received from an employee in an appropriate unit a written assignment which
authorizes the agency to deduct from the pay of the employee amounts for the
payment of regular and periodic dues of the exclusive representative of the
unit, the agency shall honor the assignment and make an appropriate allotment
pursuant to the assignment. Any such allotment shall be made at no cost to the
exclusive representative or the employee. Except as provided under subsection
(b) of this section, any such assignment may not be revoked for a period of 1
year.
(b) An allotment under
subsection (a) of this section for the deduction of dues with respect to any
employee shall terminate when--
(1) the agreement
between the agency and the exclusive representative involved ceases to be
applicable to the employee; or
(2) the employee is
suspended or expelled from membership in the exclusive representative.
(c)(1) Subject to
paragraph (2) of this subsection, if a petition has been filed with the
Authority by a labor organization alleging that 10 percent of the employees in
an appropriate unit in an agency have membership in the labor organization, the
Authority shall investigate the petition to determine its validity. Upon
certification by the Authority of the validity of the petition, the agency
shall have a duty to negotiate with the labor organization solely concerning
the deduction of dues of the labor organization from the pay of the members of
the labor organization who are employees in the unit and who make a voluntary
allotment for such purpose.
(2)(A) The provisions
of paragraph (1) of this subsection shall not apply in the case of any
appropriate unit for which there is an exclusive representative.
(B) Any agreement under
paragraph (1) of this subsection between a labor organization and an agency
with respect to an appropriate unit shall be null and void upon the
certification of an exclusive representative of the unit.
§ 7116. Unfair labor practices
(a) For the purpose of
this chapter, it shall be an unfair labor practice for an agency--
(1) to interfere with,
restrain, or coerce any employee in the exercise by the employee of any right
under this chapter;
(2) to encourage or
discourage membership in any labor organization by discrimination in connection
with hiring, tenure, promotion, or other conditions of employment;
(3) to sponsor,
control, or otherwise assist any labor organization, other than to furnish,
upon request, customary and routine services and facilities if the services and
facilities are also furnished on an impartial basis to other labor
organizations having equivalent status;
(4) 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;
(5) to refuse to
consult or negotiate in good faith with a labor organization as required by
this chapter;
(6) to fail or refuse
to cooperate in impasse procedures and impasse decisions as required by this
chapter;
(7) 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; or
(8) to otherwise fail
or refuse to comply with any provision of this chapter.
(b) For the purpose of
this chapter, it shall be an unfair labor practice for a labor organization--
(1) to interfere with,
restrain, or coerce any employee in the exercise by the employee of any right
under this chapter;
(2) to cause or attempt
to cause an agency to discriminate against any employee in the exercise by the
employee of any right under this chapter;
(3) 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;
(4) 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 nonpreferential civil service status, political
affiliation, marital status, or handicapping condition;
(5) to refuse to
consult or negotiate in good faith with an agency as required by this chapter;
(6) to fail or refuse
to cooperate in impasse procedures and impasse decisions as required by this
chapter;
(7)(A) 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
(B) to condone any
activity described in subparagraph (A) of this paragraph by failing to take
action to prevent or stop such activity; or
(8) to otherwise fail
or refuse to comply with any provision of this chapter.
Nothing in paragraph (7) of this subsection shall result in any
informational picketing which does not interfere with an agency's operations
being considered as an unfair labor practice.
(c) For the purpose of
this chapter it shall be an unfair labor practice for an exclusive
representative to deny membership to any employee in the appropriate unit
represented by such exclusive representative except for failure--
(1) to meet reasonable
occupational standards uniformly required for admission, or
(2) to tender dues
uniformly required as a condition of acquiring and retaining membership.
This subsection does not preclude any labor organization from enforcing
discipline in accordance with procedures under its constitution or bylaws to
the extent consistent with the provisions of this chapter.
(d) Issues which can
properly be raised under an appeals procedure may not be raised as unfair labor
practices prohibited under this section. Except for matters wherein, under
section 7121(e) and (f) of this title, an employee has an option of using the
negotiated grievance procedure or an appeals procedure, 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 this section, but not under both procedures.
(e) The expression of
any personal view, argument, opinion or the making of any statement which--
(1) publicizes the fact
of a representational election and encourages employees to exercise their right
to vote in such election,
(2) corrects the record
with respect to any false or misleading statement made by any person, or
(3) informs employees
of the Government's policy relating to labor-management relations and
representation,
shall not, if the expression contains no threat or reprisal or force or
promise of benefit or was not made under coercive conditions, (A) constitute an
unfair labor practice under any provision of this chapter, or (B) constitute
grounds for the setting aside of any election conducted under any provisions of
this chapter.
§ 7117. Duty to bargain in good
faith; compelling need; duty to consult
(a)(1) Subject to
paragraph (2) of this subsection, the duty to bargain in good faith shall, to
the extent not inconsistent with any Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any rule or regulation
only if the rule or regulation is not a Government-wide rule or regulation.
(2) The duty to bargain
in good faith shall, to the extent not inconsistent with Federal law or any
Government-wide rule or regulation, extend to matters which are the subject of
any agency rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this section that
no compelling need (as determined under regulations prescribed by the
Authority) exists for the rule or regulation.
(3) Paragraph (2) of
the subsection applies to any rule or regulation issued by any agency or issued
by any primary national subdivision of such agency, unless an exclusive
representative represents an appropriate unit including not less than a
majority of the employees in the issuing agency or primary national
subdivision, as the case may be, to whom the rule or regulation is applicable.
(b)(1) In any case of
collective bargaining in which an exclusive representative alleges that no
compelling need exists for any rule or regulation referred to in subsection
(a)(3) of this section which is then in effect and which governs any matter at
issue in such collective bargaining, the Authority shall determine under
paragraph (2) of this subsection, in accordance with regulations prescribed by
the Authority, whether such a compelling need exists.
(2) For the purpose of
this section, a compelling need shall be determined not to exist for any rule
or regulation only if--
(A) the agency, or
primary national subdivision, as the case may be, which issued the rule or
regulation informs the Authority in writing that a compelling need for the rule
or regulation does not exist; or
(B) the Authority
determines that a compelling need for a rule or regulation does not exist.
(3) A hearing may be
held, in the discretion of the Authority, before a determination is made under
this subsection. If a hearing is held, it shall be expedited to the extent
practicable and shall not include the General Counsel as a party.
(4) The agency, or
primary national subdivision, as the case may be, which issued the rule or
regulation shall be a necessary party at any hearing under this subsection.
(c)(1) Except in any
case to which subsection (b) of this section applies, if an agency involved in
collective bargaining with an exclusive representative alleges that the duty to
bargain in good faith does not extend to any matter, the exclusive
representative may appeal the allegation to the Authority in accordance with
the provisions of this subsection.
(2) The exclusive
representative may, on or before the 15th day after the date on which the
agency first makes the allegation referred to in paragraph (1) of this
subsection, institute an appeal under this subsection by--
(A) filing a petition
with the Authority; and
(B) furnishing a copy
of the petition to the head of the agency.
(3) On or before the
30th day after the date of the receipt by the head of the agency of the copy of
the petition under paragraph (2)(B) of this subsection, the agency shall--
(A) file with the
Authority a statement--
(i) withdrawing the
allegation; or
(ii) setting forth in
full its reasons supporting the allegation; and
(B) furnish a copy of
such statement to the exclusive representative.
(4) On or before the
15th day after the date of the receipt by the exclusive representative of a
copy of a statement under paragraph (3)(B) of this subsection, the exclusive
representative shall file with the Authority its response to the statement.
(5) A hearing may be
held, in the discretion of the Authority, before a determination is made under
this subsection. If a hearing is held, it shall not include the General Counsel
as a party.
(6) The Authority shall
expedite proceedings under this subsection to the extent practicable and shall
issue to the exclusive representative and to the agency a written decision on
the allegation and specific reasons therefor at the earliest practicable date.
(d)(1) A labor
organization which is the exclusive representative of a substantial number of
employees, determined in accordance with criteria prescribed by the Authority,
shall be granted consultation rights by any agency with respect to any
Government-wide rule or regulation issued by the agency effecting any
substantive change in any condition of employment. Such consultation rights
shall terminate when the labor organization no longer meets the criteria
prescribed by the Authority. Any issue relating to a labor organization's
eligibility for, or continuation of, such consultation rights shall be subject
to determination by the Authority.
(2) A labor
organization having consultation rights under paragraph (1) of this subsection
shall--
(A) be informed of any
substantive change in conditions of employment proposed by the agency, and
(B) shall be permitted
reasonable time to present its views and recommendations regarding the changes.
(3) If any views or
recommendations are presented under paragraph (2) of this subsection to an
agency by any labor organization--
(A) the agency shall
consider the views or recommendations before taking final action on any matter
with respect to which the views or recommendations are presented; and
(B) the agency shall
provide the labor organization a written statement of the reasons for taking
the final action.
§ 7118. Prevention of unfair labor
practices
(a)(1) If any agency or
labor organization is charged by any person with having engaged in or engaging
in an unfair labor practice, the General Counsel shall investigate the charge
and may issue and cause to be served upon the agency or labor organization a
complaint. In any case in which the General Counsel does not issue a complaint
because the charge fails to state an unfair labor practice, the General Counsel
shall provide the person making the charge a written statement of the reasons
for not issuing a complaint.
(2) Any complaint under
paragraph (1) of this subsection shall contain a notice--
(A) of the charge;
(B) that a hearing will
be held before the Authority (or any member thereof or before an individual
employed by the authority and designated for such purpose); and
(C) of the time and
place fixed for the hearing.
(3) The labor
organization or agency involved shall have the right to file an answer to the
original and any amended complaint and to appear in person or otherwise and
give testimony at the time and place fixed in the complaint for the hearing.
(4)(A) Except as
provided in subparagraph (B) of this paragraph, no complaint shall be issued on
any alleged unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority.
(B) If the General
Counsel determines that the person filing any charge was prevented from filing
the charge during the 6-month period referred to in subparagraph (A) of this
paragraph by reason of--
(i) any failure of the
agency or labor organization against which the charge is made to perform a duty
owed to the person, or
(ii) any concealment
which prevented discovery of the alleged unfair labor practice during the 6-
month period,
the General Counsel may issue a complaint based on the charge if the
charge was filed during the 6-month period beginning on the day of the
discovery by the person of the alleged unfair labor practice.
(5) The General Counsel
may prescribe regulations providing for informal methods by which the alleged
unfair labor practice may be resolved prior to the issuance of a complaint.
(6) The Authority (or
any member thereof or any individual employed by the Authority and designated
for such purpose) shall conduct a hearing on the complaint not earlier than 5
days after the date on which the complaint is served. In the discretion of the
individual or individuals conducting the hearing, any person involved may be
allowed to intervene in the hearing and to present testimony. Any such hearing
shall, to the extent practicable, be conducted in accordance with the
provisions of subchapter II of chapter 5 of this title, except that the parties
shall not be bound by rules of evidence, whether statutory, common law, or
adopted by a court. A transcript shall be kept of the hearing. After such a
hearing the Authority, in its discretion, may upon notice receive further
evidence or hear argument.
(7) If the Authority
(or any member thereof or any individual employed by the Authority and
designated for such purpose) determines after any hearing on a complaint under
paragraph (5) of this subsection that the preponderance of the evidence
received demonstrates that the agency or labor organization named in the
complaint has engaged in or is engaging in an unfair labor practice, then the
individual or individuals conducting the hearing shall state in writing their
findings of fact and shall issue and cause to be served on the agency or labor
organization an order--
(A) to cease and desist
from any such unfair labor practice in which the agency or labor organization
is engaged;
(B) requiring the
parties to renegotiate a collective bargaining agreement in accordance with the
order of the Authority and requiring that the agreement, as amended, be given
retroactive effect;
(C) requiring
reinstatement of an employee with backpay in accordance with section 5596 of
this title; or
(D) including any
combination of the actions described in subparagraphs (A) through (C) of this
paragraph or such other action as will carry out the purpose of this chapter.
If any such order requires reinstatement of any employee with backpay,
backpay may be required of the agency (as provided in section 5596 of this
title) or of the labor organization, as the case may be, which is found to have
engaged in the unfair labor practice involved.
(8) If the individual
or individuals conducting the hearing determine that the preponderance of the
evidence received fails to demonstrate that the agency or labor organization
named in the complaint has engaged in or is engaging in an unfair labor
practice, the individual or individuals shall state in writing their findings
of fact and shall issue an order dismissing the complaint.
(b) In connection with
any matter before the Authority in any proceeding under this section, the
Authority may request, in accordance with the provisions of section 7105(i) of
this title, from the Director of the Office of Personnel Management an advisory
opinion concerning the proper interpretation of rules, regulations, or other
policy directives issued by the Office of Personnel Management.
§ 7119. Negotiation impasses;
Federal Service Impasses Panel
(a) The Federal
Mediation and Conciliation Service shall provide services and assistance to
agencies and exclusive representatives in the resolution of negotiation
impasses. The Service shall determine under what circumstances and in what
matter it shall provide services and assistance.
(b) If voluntary
arrangements, including the services of the Federal Mediation and Conciliation
Service or any other third-party mediation, fail to resolve a negotiation
impasse--
(1) either party may
request the Federal Service Impasses Panel to consider the matter, or
(2) the parties may
agree to adopt a procedure for binding arbitration of the negotiation impasses,
but only if the procedure is approved by the Panel.
(c)(1) The Federal
Service Impasses Panel is an entity within the Authority, the function of which
is to provide assistance in resolving negotiation impasses between agencies and
exclusive representatives.
(2) The Panel shall be
composed of a Chairman and at least six other members, who shall be appointed
by the President, solely on the basis of fitness to perform duties and
functions involved, from among individuals who are familiar with Government
operations and knowledgeable in labor-management relations.
(3) Of the original
members of the Panel, 2 members shall be appointed for a term of 1 year, 2
members shall be appointed for a term of 3 years, and the Chairman and the
remaining members shall be appointed for a term of 5 years. Thereafter each
member shall be appointed for a term of 5 years, except that an individual
chosen to fill a vacancy shall be appointed for the unexpired term of the
member replaced. Any member of the Panel may be removed by the President.
(4) The Panel may
appoint an Executive Director and any other individuals it may from time to
time find necessary for the proper performance of its duties. Each member of
the Panel who is not an employee (as defined in section 2105 of this title) is
entitled to pay at a rate equal to the daily equivalent of the maximum annual
rate of basic pay then currently paid under the General Schedule for each day
he is engaged in the performance of official business of the Panel, including
travel time, and is entitled to travel expenses as provided under section 5703
of this title.
(5)(A) The Panel or its
designee shall promptly investigate any impasse presented to it under
subsection (b) of this section. The Panel shall consider the impasse and shall
either--
(i) recommend to the
parties procedures for the resolution of the impasse; or
(ii) assist the parties
in resolving the impasse through whatever methods and procedures, including
factfinding and recommendations, it may consider appropriate to accomplish the
purpose of this section.
(B) If the parties do
not arrive at a settlement after assistance by the Panel under subparagraph (A)
of this paragraph, the Panel may--
(i) hold hearings;
(ii) administer oaths,
take the testimony or deposition of any person under oath, and issue subpenas
as provided in section 7132 of this title; and
(iii) take whatever
action is necessary and not inconsistent with this chapter to resolve the
impasse.
(C) Notice of any final
action of the Panel under this section shall be promptly served upon the
parties, and the action shall be binding on such parties during the term of the
agreement, unless the parties agree otherwise.
§ 7120. Standards of conduct for
labor organizations
(a) An agency shall
only accord recognition to a labor organization that is free from corrupt
influences and influences opposed to basic democratic principles. Except as
provided in subsection (b) of this section, an organization is not required to
prove that it is free from such influences if it is subject to governing
requirements adopted by the organization or by a national or international
labor organization or federation of labor organizations with which it is
affiliated, or in which it participates, containing explicit and detailed
provisions to which it subscribes calling for--
(1) the maintenance of
democratic procedures and practices including provisions for periodic elections
to be conducted subject to recognized safeguards and provisions defining and
securing the right of individual members to participate in the affairs of the
organization, to receive fair and equal treatment under the governing rules of
the organization, and to receive fair process in disciplinary proceedings;
(2) the exclusion from
office in the organization of persons affiliated with communist or other
totalitarian movements and persons identified with corrupt influences;
(3) the prohibition of
business or financial interests on the part of organization officers and agents
which conflict with their duty to the organization and its members; and
(4) the maintenance of
fiscal integrity in the conduct of the affairs of the organization, including
provisions for accounting and financial controls and regular financial reports
or summaries to be made available to members.
(b) Notwithstanding the
fact that a labor organization has adopted or subscribed to standards of
conduct as provided in subsection (a) of this section, the organization is
required to furnish evidence of its freedom from corrupt influences or
influences opposed to basic democratic principles if there is reasonable cause
to believe that--
(1) the organization
has been suspended or expelled from, or is subject to other sanction, by a
parent labor organization, or federation of organizations with which it had
been affiliated, because it has demonstrated an unwillingness or inability to
comply with governing requirements comparable in purpose to those required by
subsection (a) of this section; or
(2) the organization is
in fact subject to influences that would preclude recognition under this
chapter.
(c) A labor
organization which has or seeks recognition as a representative of employees
under this chapter shall file financial and other reports with the Assistant
Secretary of Labor for Labor Management Relations, provide for bonding of
officials and employees of the organization, and comply with trusteeship and
election standards.
(d) The Assistant
Secretary shall prescribe such regulations as are necessary to carry out the
purposes of this section. Such regulations shall conform generally to the
principles applied to labor organizations in the private sector. Complaints of
violations of this section shall be filed with the Assistant Secretary. In any
matter arising under this section, the Assistant Secretary may require a labor
organization to cease and desist from violations of this section and require it
to take such actions as he considers appropriate to carry out the policies of
this section.
(e) This chapter does
not authorize participation in the management of a labor organization or acting
as a representative of a labor organization by a management official, a
supervisor, or a confidential employee, except as specifically provided in this
chapter, or by an employee if the participation or activity would result in a
conflict or apparent conflict of interest or would otherwise be incompatible
with law or with the official duties of the employee.
(f) 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) of this title, the Authority shall, upon an appropriate
finding by the Authority of such violation--
(1) revoke the
exclusive recognition status of the labor organization, which shall then
immediately cease to be legally entitled and obligated to represent employees
in the unit; or
(2) take any other
appropriate disciplinary action.
SUBCHAPTER III--
GRIEVANCES, APPEALS, AND
REVIEW
§ 7121. Grievance procedures
(a)(1) Except as
provided in paragraph (2) of this subsection, any collective bargaining
agreement shall provide procedures for the settlement of grievances, including
questions of arbitrability. Except as provided in subsections (d), (e) and (g)
of this section, the procedures shall be the exclusive administrative
procedures for resolving grievances which fall within its coverage.
(2) Any collective
bargaining agreement may exclude any matter from the application of the
grievance procedures which are provided for in the agreement.
(b)(1) Any negotiated
grievance procedure referred to in subsection (a) of this section shall--
(A) be fair and simple,
(B) provide for
expeditious processing, and
(C) include procedures
that--
(i) assure an exclusive
representative the right, in its own behalf or on behalf of any employee in the
unit represented by the exclusive representative, to present and process
grievances;
(ii) assure such an
employee the right to present a grievance on the employee's own behalf, and
assure the exclusive representative the right to be present during the
grievance proceeding; and
(iii) provide that any
grievance not satisfactorily settled under the negotiated grievance procedure
shall be subject to binding arbitration which may be invoked by either the
exclusive representative or the agency.
(2)(A) The provisions
of a negotiated grievance procedure providing for binding arbitration in
accordance with paragraph (1)(C)(iii) shall, if or to the extent that an
alleged prohibited personnel practice is involved, allow the arbitrator to
order--
(i) a stay of any
personnel action in a manner similar to the manner described in section 1221(c)
with respect to the Merit Systems Protection Board; and
(ii) the taking, by an
agency, of any disciplinary action identified under section 1215(a)(3) that is
otherwise within the authority of such agency to take.
(B) Any employee who is
the subject of any disciplinary action ordered under subparagraph (A)(ii) may
appeal such action to the same extent and in the same manner as if the agency
had taken the disciplinary action absent arbitration.
(c) The preceding
subsections of this section shall not apply with respect to any grievance
concerning--
(1) any claimed
violation of subchapter III of chapter 73 of this title (relating to prohibited
political activities);
(2) retirement, life
insurance, or health insurance;
(3) a suspension or
removal under section 7532 of this title;
(4) any examination,
certification, or appointment; or
(5) the classification
of any position which does not result in the reduction in grade or pay of an
employee.
(d) An aggrieved
employee affected by a prohibited personnel practice under section 2302(b)(1)
of this title which also falls under the coverage of the negotiated grievance
procedure may raise the matter under a statutory procedure or the negotiated
procedure, but not both. An employee shall be deemed to have exercised his
option under this subsection to raise the matter under either a statutory
procedure or the negotiated procedure at such time as the employee timely
initiates an action under the applicable statutory procedure or timely files a
grievance in writing, in accordance with the provisions of the parties'
negotiated procedure, whichever event occurs first. Selection of the negotiated
procedure in no manner prejudices the right of an aggrieved employee to request
the Merit Systems Protection Board to review the final decision pursuant to
section 7702 of this title in the case of any personnel action that could have
been appealed to the Board, or, where applicable, to request the Equal
Employment Opportunity Commission to review a final decision in any other
matter involving a complaint of discrimination of the type prohibited by any
law administered by the Equal Employment Opportunity Commission.
(e)(1) Matters covered
under sections 4303 and 7512 of this title which also fall within the coverage
of the negotiated grievance procedure may, in the discretion of the aggrieved
employee, be raised either under the appellate procedures of section 7701 of
this title or under the negotiated grievance procedure, but not both. Similar
matters which arise under other personnel systems applicable to employees
covered by this chapter may, in the discretion of the aggrieved employee, be
raised either under the appellate procedures, if any, applicable to those
matters, or under the negotiated grievance procedure, but not both. An employee
shall be deemed to have exercised his option under this subsection to raise a
matter either under the applicable appellate procedures or under the negotiated
grievance procedure at such time as the employee timely files a notice of
appeal under the applicable appellate procedures or timely files a grievance in
writing in accordance with the provisions of the parties' negotiated grievance
procedure, whichever event occurs first.
(2) In matters covered
under sections 4303 and 7512 of this title which have been raised under the
negotiated grievance procedure in accordance with this section, an arbitrator
shall be governed by section 7701(c)(1) of this title, as applicable.
(f) In matters covered
under sections 4303 and 7512 of this title which have been raised under the
negotiated grievance procedure in accordance with this section, section 7703 of
this title pertaining to judicial review shall apply to the award of an
arbitrator in the same manner and under the same conditions as if the matter
had been decided by the Board. In matters similar to those covered under
sections 4303 and 7512 of this title which arise under other personnel systems
and which an aggrieved employee has raised under the negotiated grievance
procedure, judicial review of an arbitrator's award may be obtained in the same
manner and on the same basis as could be obtained of a final decision in such
matters raised under applicable appellate procedures.
(g)(1) This subsection
applies with respect to a prohibited personnel practice other than a prohibited
personnel practice to which subsection (d) applies.
(2) An aggrieved
employee affected by a prohibited personnel practice described in paragraph (1)
may elect not more than one of the remedies described in paragraph (3) with
respect thereto. For purposes of the preceding sentence, a determination as to
whether a particular remedy has been elected shall be made as set forth under
paragraph (4).
(3) The remedies
described in this paragraph are as follows:
(A) An appeal to the
Merit Systems Protection Board under section 7701.
(B) A negotiated
grievance procedure under this section.
(C) Procedures for
seeking corrective action under subchapters II and III of chapter 12.
(4) For the purpose of
this subsection, a person shall be considered to have elected--
(A) the remedy
described in paragraph (3)(A) if such person has timely filed a notice of
appeal under the applicable appellate procedures;
(B) the remedy
described in paragraph (3)(B) if such person has timely filed a grievance in
writing, in accordance with the provisions of the parties' negotiated
procedure; or
(C) the remedy
described in paragraph (3)(C) if such person has sought corrective action from
the Office of Special Counsel by making an allegation under section 1214(a)(1).
(h) Settlements and
awards under this chapter shall be subject to the limitations in section
5596(b)(4) of this title.
§ 7122. Exceptions to arbitral
awards
(a) Either party to
arbitration under this chapter may file with the Authority an exception to any
arbitrator's award pursuant to the arbitration (other than an award relating to
a matter described in section 7121(f) of this title). If upon review the
Authority finds that the award is deficient--
(1) because it is
contrary to any law, rule, or regulation; or
(2) on other grounds
similar to those applied by Federal courts in private sector labor-management
relations;
the Authority may take such action and make such recommendations
concerning the award as it considers necessary, consistent with applicable
laws, rules, or regulations.
(b) If no exception to
an arbitrator's award is filed under subsection (a) of this section during the
30-day period beginning on the date the award is served on the party, the award
shall be final and binding. An agency shall take the actions required by an
arbitrator's final award. The award may include the payment of backpay (as
provided in section 5596 of this title).
§ 7123. Judicial review; enforcement
(a) Any person
aggrieved by any final order of the Authority other than an order under--
(1) section 7122 of
this title (involving an award by an arbitrator), unless the order involves an
unfair labor practice under section 7118 of this title, or
(2) section 7112 of
this title (involving an appropriate unit determination),
may, during the 60-day period beginning on the date on which the order
was issued, institute an action for judicial review of the Authority's order in
the United States court of appeals in the circuit in which the person resides
or transacts business or in the United States Court of Appeals for the District
of Columbia.
(b) The Authority may
petition any appropriate United States court of appeals for the enforcement of
any order of the Authority and for appropriate temporary relief or restraining
order.
(c) Upon the filing of
a petition under subsection (a) of this section for judicial review or under
subsection (b) of this section for enforcement, the Authority shall file in the
court the record in the proceedings, as provided in section 2112 of title 28.
Upon the filing of the petition, the court shall cause notice thereof to be
served to the parties involved, and thereupon shall have jurisdiction of the
proceeding and of the question determined therein and may grant any temporary
relief (including a temporary restraining order) it considers just and proper,
and may make and enter a decree affirming and enforcing, modifying and
enforcing as so modified, or setting aside in whole or in part the order of the
Authority. The filing of a petition under subsection (a) or (b) of this section
shall not operate as a stay of the Authority's order unless the court
specifically orders the stay. Review of the Authority's order shall be on the
record in accordance with section 706 of this title. No objection that has not
been urged before the Authority, or its designee, shall be considered by the
court, unless the failure or neglect to urge the objection is excused because
of extraordinary circumstances. The findings of the Authority with respect to
questions of fact, if supported by substantial evidence on the record
considered as a whole, shall be conclusive. If any person applies to the court
for leave to adduce additional evidence and shows to the satisfaction of the
court that the additional evidence is material and that there were reasonable
grounds for the failure to adduce the evidence in the hearing before the
Authority, or its designee, the court may order the additional evidence to be
taken before the Authority, or its designee, and to be made a part of the
record. The Authority may modify its findings as to the facts, or make new
findings by reason of additional evidence so taken and filed. The Authority
shall file its modified or new findings, which, with respect to questions of
fact, if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any, for
the modification or setting aside of its original order. Upon the filing of the
record with the court, the jurisdiction of the court shall be exclusive and its
judgment and decree shall be final, except that the judgment and decree shall
be subject to review by the Supreme Court of the United States upon writ of
certiorari or certification as provided in section 1254 of title 28.
(d) The Authority may,
upon issuance of a complaint as provided in section 7118 of this title charging
that any person has engaged in or is engaging in an unfair labor practice,
petition any United States district court within any district in which the
unfair labor practice in question is alleged to have occurred or in which such
person resides or transacts business for appropriate temporary relief
(including a restraining order). Upon the filing of the petition, the court
shall cause notice thereof to be served upon the person, and thereupon shall
have jurisdiction to grant any temporary relief (including a temporary
restraining order) it considers just and proper. A court shall not grant any
temporary relief under this section if it would interfere with the ability of
the agency to carry out its essential functions or if the Authority fails to
establish probable cause that an unfair labor practice is being committed.
SUBCHAPTER IV--
ADMINISTRATIVE AND OTHER
PROVISIONS
§ 7131. Official time
(a) Any employee
representing an exclusive representative in the negotiation of a collective
bargaining agreement under this chapter shall be authorized official time for
such purposes, including attendance at impasse proceeding, during the time the
employee otherwise would be in a duty status. The number of employees for whom
official time is authorized under this subsection shall not exceed the number
of individuals designated as representing the agency for such purposes.
(b) Any activities
performed by any employee relating to the internal business of a labor
organization (including the solicitation of membership, elections of labor
organization officials, and collection of dues) shall be performed during the
time the employee is in a nonduty status.
(c) Except as provided
in subsection (a) of this section, the Authority shall determine whether any
employee participating for, or on behalf of, a labor organization in any phase
of proceedings before the Authority shall be authorized official time for such
purpose during the time the employee otherwise would be in a duty status.
(d) Except as provided
in the preceding subsections of this section--
(1) any employee
representing an exclusive representative, or
(2) in connection with
any other matter covered by this chapter, any employee in an appropriate unit
represented by an exclusive representative,
shall be granted official time in any amount the agency and the
exclusive representative involved agree to be reasonable, necessary, and in the
public interest.
§ 7132. Subpenas
(a) Any member of the
Authority, the General Counsel, or the Panel, any administrative law judge
appointed by the Authority under section 3105 of this title, and any employee
of the Authority designated by the Authority may--
(1) issue subpenas
requiring the attendance and testimony of witnesses and the production of
documentary or other evidence from any place in the United States; and
(2) administer oaths,
take or order the taking of depositions, order responses to written
interrogatories, examine witnesses, and receive evidence.
No subpena shall be issued under this section which requires the
disclosure of intramanagement guidance, advice, counsel, or training within an
agency or between an agency and the Office of Personnel Management.
(b) In the case of
contumacy or failure to obey a subpena issued under subsection (a)(1) of this
section, the United States district court for the judicial district in which
the person to whom the subpena is addressed resides or is served may issue an
order requiring such person to appear at any designated place to testify or to
produce documentary or other evidence. Any failure to obey the order of the
court may be punished by the court as a contempt thereof.
(c) Witnesses (whether
appearing voluntarily or under subpena) shall be paid the same fee and mileage
allowances which are paid subpenaed witnesses in the courts of the United
States.
§ 7133. Compilation and publication
of data
(a) The Authority shall
maintain a file of its proceedings and copies of all available agreements and
arbitration decisions, and shall publish the texts of its decisions and the
actions taken by the Panel under section 7119 of this title.
(b) All files
maintained under subsection (a) of this section shall be open to inspection and
reproduction in accordance with the provisions of sections 552 and 552a of this
title.
§ 7134. Regulations
The Authority, the General Counsel, the
Federal Mediation and Conciliation Service, the Assistant Secretary of Labor
for Labor Management Relations, and the Panel shall each prescribe rules and
regulations to carry out the provisions of this chapter applicable to each of
them, respectively. Provisions of subchapter II of chapter 5 of this title
shall be applicable to the issuance, revision, or repeal of any such rule or
regulation.
§ 7135. Continuation of existing
laws, recognitions, agreements, and procedures
(a) Nothing contained
in this chapter shall preclude--
(1) the renewal or
continuation of an exclusive recognition, certification of an exclusive
representative, or a lawful agreement between an agency and an exclusive
representative of its employees, which is entered into before the effective
date of this chapter; or
(2) the renewal,
continuation, or initial according of recognition for units of management
officials or supervisors represented by labor organizations which historically
or traditionally represent management officials or supervisors in private
industry and which hold exclusive recognition for units of such officials or
supervisors in any agency on the effective date of this chapter.
(b) Policies,
regulations, and procedures established under and decisions issued under
Executive Orders 11491, 11616, 11636, 11787, and 11838, or under any other
Executive order, as in effect on the effective date of this chapter, shall
remain in full force and effect until revised or revoked by the President, or
unless superseded by specific provisions of this chapter or by regulations or
decisions issued pursuant to this chapter.
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