Melissa Baumann NFFE Forest Service Council Secretary-Treasurer

BARGAINING UNITSBARGAINING UNIT STATUS

AND UNION MEMBERS

Melissa Baumann

NFFE Forest Service Council

Secretary-Treasurer

Bargaining Unit

A bargaining unit is a group of employees who are represented by a Union.

The Federal Labor Relations Authority (FLRA) has the final say about who is in a bargaining unit.

Determinations are made based on definitions and provisions in 5 USC 71.

Determination of Appropriate Unit

5 USC 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.

Forest Service Units

The Union can propose an appropriate unit when organizing a new unit, but it must be “certified” by FLRA.

Units found to appropriate in the Forest ServiceForests Regional Offices

Research Stations Law Enforcement

Enterprise Teams Content Analysis Team

MTDC and SDTC ASC-B&F

Washington Office (in DC and Arlington)

Chief Information Office

Law Enforcement and Investigation

Job Corps Civilian Conservation Center

Bargaining Unit Employee

Bargaining Unit Employee (BUE) or Bargaining Unit Member (BUM) is an employee who is a member of a bargaining unit.

BUEs may or may not be dues-paying members

5 USC 71 sets out certain exclusions for who can be in a bargaining unit.

Exclusions from Units

5 USC 7112 (b) Sets out exclusions from appropriate bargaining units: Management officials Supervisors Confidential employees Personnel Work Administering the Labor Statute Unit containing both professionals and non-

professionals National Security Investigation/audit

Exclusions: Management Official or Supervisor

7112. Determination of appropriate units for labor organization representation

(b) A unit shall not be determined to be appropriate under this … if it includes—

(1) except as provided under section 7135(a)(2) of this title, any management official or supervisor;

Exclusions: Management Official

5 USC 7103(a)(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

Exclusions: Management Official

The FLRA has defined a management official to include individuals who: 1) create, establish or prescribe general principles,

plans or courses of action; 2) decide upon or settle upon general principles,

plans or courses of action; or 3) bring about or obtain a result as to the adoption of

general plans, principles or courses of action.

(59 FLRA 858) Note: Private Sector includes people who

“effectuate” policy. Federal does NOT.

Exclusions: Management Official Examples

Employees who interpret regulations and policies and have decision-making authority within that framework do not effectively make or shape policy. Department of Veterans Affairs, 60 FLRA 749, 2005.

A highly specialized individual who rendered advice to management that was usually accepted was not a management official. The advice was subject to successive levels of review. DOL, Mine Safety and Health Administration, 37 FLRA 1151, 1990.

Senior contracting officers were not deemed management officials because their decisions were guided by federal acquisition regulations and agency policies. Defense Logistics Agency, 48 FLRA 285, 1993.

Exclusions: Supervisor

5 USC 7113(a)(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 (5 USC 7113(a)(10))

Exclusions: Supervisor

Anyone who exercises supervisory authority is a supervisor and excluded from the bargaining unit. This authority includes: authority to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances.

Except for Nurses and Firefighters: There is no limit on the amount of time that someone supervises that allows them to remain in the bargaining unit.

Team leaders are generally NOT supervisors and are included in the bargaining unit.

Exclusions: SupervisorExamples

An employee will be considered a supervisor if the employee consistently exercises independent judgment with regard to one or more of the supervisory indicia set forth in the statute. National Mediation Board, 56 FLRA 1, 2000, 1990.

In order to be excluded from the bargaining unit, firefighters must perform one or more of the supervisory duties enumerated in the statute, and do so for a preponderance of the time. Army Parks Reserve Training Center, 61 FLRA 537, 2006.

An employee may be considered a supervisor if the employee exercises independent judgment in the evaluation of employee performance and that evaluation is considered by upper management in taking an action listed among the indicia of supervisory authority. Department of Labor, 59 FLRA 853, 2004.

Exclusions: SupervisorsExample: Fire Supervisors

A park ranger is in charge of a crew of three seasonal workers during the fire season. During this period, the park ranger assigns work to, and often works side by side with, the crew, and evaluates them individually on a monthly basis. The park ranger’s year-end appraisals of his crew members are reviewed by the Fire Manager, who uses the appraisals to decide whether the employees are recommended for rehire.

The FLRA determined that he performed supervisory duties, as defined under the statute. However, they also determined that he was a firefighter. Thus, his bargaining unit status depends on whether he performs supervisory duties for more than 50% of his time. Santa Monica Mtns., 50 FLRA 31, 1995.

Exclusions: Confidential Employee



(2) a confidential employee;

Exclusions: Confidential Employee

5 USC 7103(a)(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

Exclusions: Confidential Employee Examples

Employees who handled grievances and attended meetings where labor-management matters were discussed were significantly involved in labor-management relations. DHHS Office of the General Counsel, 45 FLRA 894 (1992).

A secretary for an executive whose secretarial duties included the occasional review of correspondence on personnel matters was not in a confidential position; access to those materials was not determinative if there was no other work in a confidential capacity for a person who formulated or effectuated management policies in the field of labor relations. FMCS and NAGE Local R3-118, 5 FLRA 28 , (1981).

Exclusions: Personnel Work



(3) an employee engaged in personnel work in other than a purely clerical capacity;

There is no statutory definition of “personnel work.”

Exclusions: Personnel WorkExamples

For a position to be excluded under this section, it must be determined that the incumbent in the position is involved in work directly relating to the personnel operations of the employee's agency. 832nd Combat Support Group, Luke Air Force Base, Ariz., 23 FLRA 768 (1986).

The character and extent of involvement of the incumbent in personnel work must be more than clerical in nature and the duties of the position in question must not be performed in a routine manner. The incumbent must exercise independent judgment and discretion in carrying out the personnel duties. Soc. Sec. Admin., 56 FLRA 1015, 1018 (2000), citing Dep’t of the Treasury, Internal Rev. Serv., Wash., D.C., 36 FLA 138, 144 (1990).

Exclusions: Administering this Chapter


(b) A unit shall not be determined to be appropriate under this … if it includes--

(4) an employee engaged in administering the provisions of this chapter;

These are primarily the employees in the HR Labor Relations branch.

Professional and Non-Professional



(5) both professional employees and other employees, unless a majority of the professional employees vote for inclusion in the unit;

Aside: Who is a “Professional?”

Generally, professional employees are those employees whose work requires advance knowledge of a type that is usually acquired in an institution of higher learning.

In practice, the OPM Qualifications Handbook will give you a good idea of who is considered a “professional” among the GS series.

http://www.opm.gov/qualifications/standards/index-Standards.asp

Use the Group Coverage Qualification Standard

for Technical and Medical Support

Positions…

Use the Group Coverage Qualification Standard for Professional and Scientific Positions…

Pros and Non-Pros in FS

In the Forest Service we have two consolidated bargaining units: Professional employees Non-Professional employees

because the professionals have not voted to be included in the same bargaining unit as the non-professionals.

This is why MA Appendix A has two lists. However, in practice, we treat the two

bargaining units as a single unit.

Exclusions: National Security



(6) any employee engaged in intelligence, counterintelligence, investigative, or security work which directly affects national security;

Forest Service has few, if any, National Security positions.

Exclusions: Investigation or Audit Functions



(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.

Exclusions: Investigation or Audit Functions

OIG auditors should be excluded from the bargaining unit under 5 USC 7112(b)(7). Their audit functions, which could uncover employee fraud, misuse of funds, or malfeasance, related to internal security. U.S. Small Business Administration and AFGE, Local 2532 and Council 228, 34 FLRA 392, (1990).

Internal Auditors reviewing the work of individuals whose duties involved the implementation of agency programs were excluded from the bargaining unit. The audits were designed to detect possible fraud, waste, and abuse in the work of agency employees whose duties directly affected the agency's internal security. Department of the Navy, Naval Audit Service, Southeast Region and NFFE , 46 FLRA 512, (1992).

Investigative Technicians at a prison were determined to be in the bargaining unit because only 20% of their time was spent in investigating staff misconduct or audits. Bureau of Prisons, McCreary, and AFGE, 63 FLRA 153, (2009).

Important note on exclusions

Determinations of exclusions are based on the duties actually performed, NOT on the position description, series, grade, or title.

NOT based on what the Agency thinks they might do in the future.

Issues with our Bargaining Unit and Membership Lists

Symptoms of a problem

Locals are seeing members being dropped from their membership lists.

These are due to AGENCY errors, not Union errors.

Remedies must be sought through the Agency.

Statutory provision for dues

5 USC 7115 -- Allotments to representatives – 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.

Key Contractual Provisions

Article 1 – Recognition and Unit Designation Article 7 – Union Use of Official Facilities and

Services Article 39 – Voluntary Allotment of Union Dues Appendix B – USDA-NFFE MOU ond Dues

Withholding Memorandum of Understanding – Dues

Allotments, February 7, 2008 Memorandum of Understanding -- Union Dues

Allotment Processing, February 12, 2009

Article 1.3

a. Management shall not change the status of bargaining unit positions without first notifying the Union with rationale for the change. The Union will notify Management with rationale within 30 days if they disagree with the change. If the parties are unable to agree on the position’s bargaining unit status, Management may file a petition to clarify unit with the Federal Labor Relations Authority. The disputed positions will remain in the bargaining unit until such time as a decision is reached on the petition.

b. The Union will notify management when it believes the bargaining unit status of a position should be changed prior to filing a petition with the FLRA. If the parties are unable to agree the Union may file a petition.

Article 7.5

List of Employees: Upon request the Forest Service agrees to furnish to the Union, at the appropriate level, usually not more than quarterly, an up-to-date list of employees in the organizational unit showing name, position, title, grade, and step, Bargaining Unit Status code (BUS), Fair Labor Standards Act code, and official duty station. Additional information will be furnished upon request on a case-by-case basis in compliance with the Privacy Act and case law.

Article 39

Any member of a bargaining unit may make voluntary allotment of dues, in accordance with USDA-NFFE MOU.

If USDA-NFFE agreement expires or is not renegotiated, the Parties agree that the voluntary allotment of dues will continue until a new Agreement between the USDA and NFFE is negotiated.

When an employee changes from one Local to another, Form AD-356, Dues Change Between Locals Within a National Labor Organization, must be completed. The gaining unit should process the Form AD-356 for employees

transferring to an organized unit. The losing unit should process Form AD-356A, Cancellation of

Withholding of Dues to Labor Organizations and Associations of Supervisors or Managers, for employees transferring to an unorganized unit or to a unit where the employee is no longer a member of the bargaining unit (i.e., professional employee to nonprofessional bargaining unit).

Appendix B

Agreement to withhold dues Procedures for submitting SF-1187

Employee info, including SSN Signature of authorized union official Process within 5 days of receipt Send copy to NFFE Headquarters

Dues remittance reports sent to NFFE HQ Dues may be set at one amount for whole Local, or

individually. Changes may be made twice a year. Cancellation of dues withholding will only be

processed once a year. All forms must be in by August 15.

How to find errors in the BU

“Get a List” Request from your LRA (UNIONCM5 for your unit),

per Article 7. FSC Secretary-Treasurer gets one quarterly and can

provide you with the information. Review list to determine if people’s codes are

correct. Pay special attention to be sure that union members

have not had their codes changed.

So much info…

Organization Codes: LV2, LV3, LV4, LV5 Name, PP-Ser-Gr-Stp, Title City, St BUS = Bargaining Unit Status Code Sup = Supervisory Code FLSA = Fair Labor Standards Act Local = Local number Dues = Dues amount the employee is paying

Organizational Codes

Lv2 = Region, Station, Dep. Area in WO, or LE&I

Lv3 = Next sublevel (often Forest) Lv4 = Next sublevel (often District) Lv5 = Next sublevel….

Many of the org codes can be found on HRM website.

Bargaining Unit Status Codes

0634 or 2009 -- Currently in the Forest Service NFFE Professional or Non-professional Bargaining Unit

7777 – Not in a bargaining unit, but eligible to be in one.

8888 – Not eligible to be in a bargaining unit. Supervisors, managers, confidential, personnel work…

Any other – Represented by another bargaining unit.

Supervisory Codes

2 and 4 -- Supervisor or Manager , Position meets the definition of Supervisor in 5 U.S.C. 7103(a)(10).

5 -- Management Official (CSRA) Position meets the definition of Management Official in 5 U.S.C. 7103(a)(11), but is not a supervisor

6 -- Leader in wage system or one-grade interval work.

7 -- Team Leader in two-grade interval work. 8 -- All Other Positions

Other Information in UNIONCM5

Fair Labor Standards Act E = Exempt N = Non-exempt NOTE: FLSA status has nothing to do with

bargaining unit status. Union Local Union Dues Date (not all members have dates)

How do you recognize errors?

Red Flag – BUScode is 8888 and Supervisory code is 8. This combination should only occur if someone meets the

exemptions for Confidential Audit/Investigation Personnel work National Security

Other common issues Wrong BUS code for Pros/Non-Pros Wrong BUS code for temporary employees

Errors often occur when an employee has a change in status (promotion, change in benefits, detail, etc.)

Examples from Shasta-T

Shasta-T Bargaining Units

From Appendix A in Master Agreement* Professionals

INCLUDED: All professional employees of the Shasta Trinity National Forest.

EXCLUDED: All management officials, nonprofessional employees, supervisors, 30 day special need employees, and employees described in 5 U.S.C. §7112(b)(2), (3), (4), (6) and (7).

Non-Professionals INCLUDED: All nonprofessional employees of the Shasta Trinity

National Forest. EXCLUDED: All management officials, professional employees,

supervisors, 30 day special need employees, and employees described in 5 U.S.C. §7112(b)(2), (3), (4), (6) and (7).

*Note: Appendix A is just for reference. FLRA is the keeper of the Certification. Updates are posted on the HRM website.

Now what?

Was the employee a dues-paying member who has been dropped? Grievance ULP MAY have to go to Clarification of Unit petition.

Is the BUScode wrong, but not a dues payer? Grievance Clarification of Unit Petition

Appeal process really depends on the circumstances.

Unfair Labor Practice

What is an unfair labor practice (ULP)?

A violation of 5 USC 71.

ULPs related to membership/dues

Primary ULP related to this issue is the failure of the Agency to withhold dues for a bargaining unit employee who has requested dues allotments

In filing ULP, Union alleges violation of 5 USC 7116(a)(1) “to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter”

7116 (a)(8) “to otherwise fail or refuse to comply with any provision of this chapter” which includes failing to comply with 5 USC 7115.

What is a Grievance?

"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;

Grievances related to membership/dues

Violation of Article 1 – Failing to notify union prior to changing bargaining unit status of a position

Violation of Article 7 – Refusal to provide list Violation of Article 39/Appendix B – Failure of the

Agency to withhold dues for a bargaining unit employee who has requested dues allotments

Violation of 5 USC 7115 -- the failure of the Agency to withhold dues for a bargaining unit employee who has requested dues allotments

Missing dues-paying members

Ask the employee if they submitted an SF-1188.

Ask the employee if they are currently in a supervisory/managerial position (detail/temporary promotion/temp supervision)

Determine what the employee’s current BUScode is.

Missing dues-paying members (cont’d)

Options: If BUScode was changed (to 8888 or 7777),

and you believe it is wrong Grievance alleging violation of Article 1, because you

weren’t notified of change. ULP for failing to withhold dues Notify management of the wrong BUScode, per

Article 1, and ask them to correct. If BUScode was not changed and is 0634

Grievance alleging violation of Article 39/Appendix B ULP for failing to withhold dues.

Resolutions to ULP/Grievance

Correct the BUScode Reinstate dues withholding Pay back dues

HOWEVER, the Comptroller General has ruled that the Agency can, and should, bill the employee for the cost.

Reimburse Local for the IAMAW $10 reinstatement fee

Posting regarding who is in the bargaining unit Training for employee(s) who made error(s)

Wrong BUScode for non-member

Find out if the employee is currently supervising or a manager

Try to find out when the BUScode was changed. Options to resolve:

File grievance alleging that BUScode was changed without notifying the Union.

Notify management, per Article 1, that the Union believes the employee is improperly excluded from the bargaining unit.

Get the employee to join the Union and file an SF-1187.

Disagreements about Bargaining Unit Status

Occasionally – The Union and management will disagree about whether a position is in or out of the bargaining unit

Most often: Confidential employees Managerial employees

Occasional Supervisors Personnelists

Feb. 2009 MOU on Dues Allotment Processing

Union Agreed to: Maintain a current list of Local union contact names,

Local Number, and dues amount and provide the list and any updates to the LR Branch Chief quarterly

Original SF-1187’s will be sent hard copy to HCM, Pay Branch.

SF-1187’s (Dues Allotment Form) will be submitted with each block completed with accurate and legible information.

MOU on SF-1187 Processing

Process when BUS Code is not 0634 for an employee who has submitted an SF-1187:

Pay will submit to Classification within 2 working days* Classification will review code within 10 days and

determine if:a. It is a simple coding error*

b. The PD was miscoded and must be corrected*, or

c. The PD is correctly coded and is not in the bargaining unit.* For (a) and (b) above, Pay will then process the SF-

1187 within 2 working days, if the correct BUS code is 0634.

* Local Union will be notified at each of these steps.

New SF-1187

Is it legible?

Pay returns SF-1187 to Union Local

Is BUS Code 0634 or 2009?

Pay Processes 1187 within 2 days and

sends copy to NFFE HQ

Refer to Class. within 2 days and notify the Union Local

Is BUScode on PD cover sheet = 0634?

Within 10 days, Class. corrects BUScode in NFC database and notifies Pay

and Union Local

Within 10 days, Class. determines what the correct

BUS code should be. Is correct BUScode 0634?

Classification notifies Pay and

Union Local

No

Yes

No

No

Yes

Classification notifies Pay and

Union Local

NoYes

CU Petition Process

First– Notify management in accordance with Article 1.

If unable to resolve, file FLRA Form 21 (Petition) with the FLRA Region that serves your unit. A copy must be sent to the Agency, as well.

FLRA will notify Parties and request further information and designation of representatives.

A conference call will be scheduled to attempt to work out the issues.

If not resolved, a hearing will be held.

Feb 2008 MOU on Dues Withholding

Annual dues increases – By Pay Period 23, Union will notify HRM of the annual dues change, so they are effective in PP 1.

When new Locals are chartered, Union will provide management with information about the new Local, including dues amounts and Local number.

When Union consolidates Locals, Union will provide information about which Locals are combining, the remaining Local number, and the members who are affected.

Representation in Reorganizations

Agency reorganizes and combines two units, or splits a unit apart.

Who determines who is still represented by the Union and who is not?

Examples: ISO CIO Consolidation of Beaverhead and Deerlodge

National Forests Stove-piping of Law Enforcement and Investigations

Accretion Petitions

“Accretion” used when two organizational units are combined, generally one organized and one unorganized. Consolidation of Beaverhead and Deerlodge NFs Consolidation of Rocky Mountain and Intermountain

Stations Often, if NFFE represented 50% or more of the

employees in the new unit, no election is needed to represent the whole new organization.

If NFFE represented less than 50%, or another union also represented some of the employees, an election may be run.

Successor Petitions

“Successor” used when an organized unit is changed sufficiently that it is no longer the same organization or a unit is separated from an organized unit. Movement of Enterprise Teams from Region 5 to National Region 4 RO – Originally listed the locations where the

employees were located. Tahoe Basin Management Unit – Originally most

employees who made up this unit came from the Eldorado.

Name change for Carribean NF to El Yunque NF. Creation of national LE&I organization

Organizing a new Unit

To organize a new unit, the Union must: Get a list from management of all employees in the

unit to be organized. Get a showing of interest from at least 30% of the

employees. Submit forms Wrangle with management Election!

What is a “new” unit?

Organize a currently unorganized Forest, Station, or other unit.

Add professionals to a unit that doesn’t currently include professionals.

Add nonprofessionals to a unit that doesn’t currently include nonprofessionals.

Add temporaries to a unit that currently only represents permanent employees.

Other?

List of potential BUEs

Article 7 -- If the unit is already partially organized, you can get a list under the provisions of Article 7.

May get a list by asking HCM, or Melissa Baumann gets a list on a quarterly basis.

Or – start collecting SF-1187s and make a list of who you think is in the potential BU, and file petition with FLRA. Agency will need to provide list to FLRA of who they believe is in BU.

“Showing of Interest”

To have FLRA hold an election, you must have a “showing of interest” from 30% or more of the eligible employees….best to get 40-50%.

Can gather signatures on either on a petition or on an SF-1187 form. (Highly recommend SF-1187.)

Only Union and FLRA can see lists/SF-1187s. SF-1187 forms are not submitted to management until

election is held and unit is certified. All organizing of new units must be done on your own

time, and the employees’ own time. Use of the Forest Service computer system is NOT

authorized for organizing a new unit.

Submit forms to FLRA

Use Petition Form – FLRA Form 21 Be careful describing the unit, and use as

broad language as possible. “All professional employees of X Forest.” NOT “All professional employees of X Forest in

Location 1, Location 2, Location 3, and Location 4. NOT “All permanent nonprofessional employees of X

Forest.” unless you really only intend to organize the permanent employees.

Wrangle with Management

At times, when the petition is submitted, management may disagree as to who is in the bargaining unit or what is an appropriate unit.

Looks a lot like wrangling with management over individual positions in a unit that is already organized.

FLRA may schedule hearing to determine appropriateness and who is eligible and who is not.

Election and Certification

Once all disputes about the appropriate unit and who is in the unit are resolved, an election is held.

Election held in person or by mail. Generally, employees have option of voting to be

represented by NFFE or not. Occasionally, there may be situations where another union is also on the ballot.

After election, ballots are counted by FLRA. If majority of employees vote to be represented,

then after 5 days, the FLRA issues a certification of the unit if no protests have been filed.

Appeals of Bargaining Unit Determinations

FLRA Regional Director makes initial determination of appropriate unit and bargaining unit status.

A Petition for Review may be filed with the full Federal Labor Relations Authority (FLRA).

Once the FLRA has made a determination, there is NO APPEAL PROCESS.

The Authority has the final word.

Documents

Melissa Baumann NFFE Forest Service Council Secretary-Treasurer