## PART IV. 

## BYPASSES, GRIEVANCES UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, AND REPRESENTATION RIGHTS CREATED BY CONTRACT AND PAST PRACTICES 

This Part provides a general introduction to the legal elements
necessary to establish the bypass of an exclusive representative, the
right to representation when processing a grievance under a negotiated
grievance procedure, and representational rights created by contract and
past practice. A more detailed listing of the rules of law, with
supporting Authority and court citations, can be found in Appendicies C,
D and E.

## A.     Bypass of the Exclusive Representative 

### 1.     Duty to Deal Only with the Union 

In certain situations, an agency must deal only with the union that
exclusively represents the bargaining unit employees. The agency may not
deal with the employees directly, even if the agency offers the union an
opportunity to be present and to actively participate. Rather, the union
can insist that the agency only deal with it. This right derives from
the statutory mandate in section 7114(a) that :

> (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.

The type of situation where the agency must deal only with the union are
those where the matter concerns grievances or bargaining over negotiable
conditions of
employment. [**\[n63\]**](http://www.flra.gov/gc/guidance/#38)  In other
words, if the matter is something over which the union has a statutory
right to represent the employees, then the agency must deal only with
the union. However, just because a matter concerns a negotiable
condition of employment does not automatically mean that the agency may
not communicate or meet with employees over that topic. Rather, it is
only in those circumstances where the union has a statutory
right/obligation to represent that the bypass prohibition is inserted.
For example, an agency must only negotiate with the union over
conditions of
employment. [**\[n64\]**](http://www.flra.gov/gc/guidance/#42)  However,
an agency may circulate surveys or hold formal discussions with the
opportunity for union representation to obtain employee feedback on how
agency programs and processes are operating, even though any changes in
those programs or processes may need to be negotiated before
implementation. [**\[n65\]**](http://www.flra.gov/gc/guidance/#46) 

Thus, for a bypass to exist, there must be agency interaction with one
or more employees when the agency should instead be dealing directly and
exclusively with the appropriate exclusive representative. The following
questions should be considered in determining if there is a potential
for a bypass situation:

-   What statutory right grants the union the right to deal exclusively
    with the agency over the subject matter at issue?\
     

-   Does the subject matter concern a grievance under a negotiated
    grievance procedure or a negotiable condition of employment?\
     

-   Were the parties engaged in, or preparing for, collective bargaining
    over the subject matter?\
     

### 2.     Strategies to Avoid Bypass Situations 

It is sometimes difficult for parties to distinguish an agency\'s
unlawful bypass of an exclusive representative from a lawful agency
communication or a meeting with unit employees. One step that an agency
can employ to avoid bypass allegations is simply to refrain from meeting
alone with any employee involved in a grievance filed under the
negotiated agreement. Also, in my view, the easiest way to avoid
conflict over possible bypasses is for an agency to keep the union
informed of its intentions to communicate with unit employees over
conditions of employment. Many times, a bypass allegation accompanies
situations where a union is not given the opportunity to be present at a
formal discussion. Seldom are bypass allegations made when a union is
invited to participate in such formal discussions. Similarly, if an
agency intends to use a survey to obtain employee feedback, notification
to and involvement of the union in that survey should alleviate any
concerns over a bypass. The situation becomes less clear when a union is
invited to a formal discussion but declines based on its belief that the
agency has no right to deal with the employees at all on the issue, but
only with the union. The Regions are requested to investigate and
consider the three factors listed above and then submit such cases for
advice.

## B.     Grievances Under the Negotiated Grievance Procedure 

### 1.     Right to Representation 

Section 7121 of the Statute sets forth the framework and requirements
for negotiated grievance procedures under the Statute. With respect to
the right to representation, section 7121(b) provides employees with two
options: (1) a grievance may be filed by a union on behalf of the
employee; or (2) an employee may file a grievance on his/her own
behalf. [**\[n66\]**](http://www.flra.gov/gc/guidance/#50)  When a union
files a grievance on behalf of an employee, the agency is required to
deal only with the union over all matters pertaining to that grievance.
Any dealing with the employee in the absence of the union would be
contrary to section 7121 and a bypass of the union, as well as a formal
discussion
violation. [**\[n67\]**](http://www.flra.gov/gc/guidance/#60)  Should an
employee choose to file a grievance on his/her own behalf, the union
would not be the representative of the employee for purposes of the
grievance. [**\[n68\]**](http://www.flra.gov/gc/guidance/#64) 
Nonetheless, the Statute requires that the union must be afforded the
opportunity to be present during the processing of the
grievance. [**\[n69\]**](http://www.flra.gov/gc/guidance/#68)  The
reason for this requirement is to enable the union to represent, when
and if applicable, its views on any institutional interests of the union
in interpreting the contract which is applicable to all unit employees.

### 2.     Strategies to Avoid Disputes over Representation at Grievances. 

As noted above at section A.2. regarding bypasses, the easiest way for
an agency to avoid violating this right is to refrain from meeting alone
with any grievant who has filed a grievance under the negotiated
grievance procedure, whether the grievance was filed by the union on
behalf of the employee, or whether the employee filed the grievance and
elected to represent him/herself or have the union as a representative.
Many bypasses regarding grievances occur because of good intentions by
an agency to resolve a pending grievance. The simplest way to avoid
those situations is simply to not meet alone with a grievant. Similarly
once an agency has recognized the union as a representative in a dispute
between a unit employee and the agency, even if no grievance has been
filed under the contract procedures, the agency acts at its peril if it
deals only with the employee regarding the matter, even if such dealing
is limited to delivering the final
decision. [**\[n70\]**](http://www.flra.gov/gc/guidance/#72) 

## C.     Representation Rights Created by Contract and Past Practices 

### 1.     Establishment of Rights Through Contracts 

Parties may also create a right to representation through their
negotiations or practice. Parties may negotiate the right to
representation into their contract. The parties are free to identify
those situations and conditions where union representation is
appropriate. By negotiating such provisions, the parties are creating a
contractual right to representation. Thus, these are situations where
the Statute does not grant a right to representation, but rather the
right to represent is negotiated as part of a contractual benefit. As a
contract right and not a statutory right, any dispute over the
implementation or breach of the right constitutes a grievance and not an
unfair labor practice, unless the breach qualifies as a
repudiation. [**\[n71\]**](http://www.flra.gov/gc/guidance/#76) 

The parties may also define in their contract how they will exercise and
implement their statutory rights. For example, a right for the union to
be represented at a formal discussion is contained in the Statute.
However, the parties may negotiate the manner in which that right would
be exercised. The parties may negotiate, for example, requirements for
notice and participation as discussed in section E.1. and 2. of Part II.
As with contract rights establishing a right to representation, any
dispute over whether a party has complied with a particular contract
provision concerning how a statutory right would be exercised would
again be a grievance and not an unfair labor practice, unless it is a
repudiation. However, if a party charges that the other has not complied
with a statutory right (rather than the particular contract provision),
the contract provision that limits or defines the implementation of that
statutory right may be a defense to the unfair labor practice
allegation. [**\[n72\]**](http://www.flra.gov/gc/guidance/#80) 

In sum:

-   Agreeing in a contract to additional rights to representation not
    contained in the Statute creates contract rights. Disputes over
    those contract provisions are grievances (unless there is a
    repudiation). For example, a contract clause granting a right to
    representation when an employee receives a notice of proposed
    discipline (which is not a statutory right) is a contract right, the
    breach of which is a grievance.\
     

-   Agreeing in a contract to provisions that implement a statutory
    right creates contract rights. Disputes over those contract
    provisions are grievances (unless there is a repudiation). For
    example, a contract clause that requires an agency to give at least
    five days notice of a formal discussion and the agency gives only
    two days. The five days notice period is a contract right, the
    breach of which is a grievance. However, if two days notice is
    reasonable under the circumstances, although there may be a breach
    of the contract, there would be no formal discussion unfair labor
    practice since the union was afforded a reasonable opportunity to
    select a representative to attend the meeting.\
     

-   Agreeing in a contract to provisions that limit a statutory right
    can result in an otherwise unlawful act being lawful, if that act is
    consistent with the contractual limitation. For example, if the
    contract requires the union to notify the agency of its designated
    representative within two days after receiving notice of a scheduled
    formal discussion, but designates its representative after three
    days, the union may have given up its right to representation at the
    formal discussion.\
     

### 2.     Establishment of Rights Through Past Practices 

Parties also may create a right to representation through a
practice. [**\[n73\]**](http://www.flra.gov/gc/guidance/#84)  Under
these circumstances, that representational practice many not be modified
by either party without fulfilling the statutory bargaining obligation.
In other words, the representational practice should be treated just as
every other established condition of employment. It may be changed, but
only through the statutory collective bargaining process.

### 3.     Strategies to Avoid Disputes over Representation Rights Created by Contract and Past Practices. 

I suggest that should parties decide to create rights to representation
in their contract, the contract language should be as clear as possible
to avoid future disputes over its meaning and application. Vague
language that is used to satisfy both parties\' immediate concerns
usually comes at the cost of future conflict. Any contractual right and
corresponding obligation should be explicit, with a joint bargaining
history and examples to guide the employees, union officials and
managers. Similarly, contract language implementing a statutory right
should be equally clear. The parties should understand that they are
creating contractual rights and obligations and that, absent a
repudiation, any unresolved dispute is a grievance and not an unfair
labor practice.

Even more significant, if the parties agree to place some sort of
limitation on existing statutory rights, such as formal discussions or
the right not to be bypassed, the parties should make those limitations
explicit. Before agreeing to place any limitation on the exercise of a
statutory right, parties must realize that what was once an unfair labor
practice may now become a lawful practice if the party charged merely
acts in accordance with the contract.

**Footnote \# 63** - Part IV

   [INS, Rosedale]{.underline}, 55 FLRA at 1038 (quoting from FCI
[Bastrop]{.underline} , 51 FLRA at 1346) (bypass, in addition to a
formal discussion, when the agency met alone with an employee concerning
a grievance) and [Social Security Administration]{.underline}, 55 FLRA
No. 160, 55 FLRA 978, 982-83 (1999) (bypass when an agency negotiated a
last chance agreement with an employee that changed conditions of
employment when there was no proposed formal discipline).

**Footnote \# 64** - Part IV

   [E.g.]{.underline}, [Air Force Accounting and Finance Center, Lowry
Air Force Base, Denver, Colorado]{.underline}, 42 FLRA No. 85, 42 FLRA
1226, 1239 (1991) (bypass when the agency approved and implemented
bargaining unit employees proposal to provide late coverage for the
office).

**Footnote \# 65** - Part IV

   [Internal Revenue Service, (District, Region and National
Units)]{.underline}, 19 FLRA No. 48, 19 FLRA 353, 354-55 (1985) and
[Department of Defense, Office of Dependents Schools]{.underline}, 19
FLRA No. 94, 19 FLRA 762, 763-64 (1985), [affirmed]{.underline}, 826
F.2d 114 (D.C. Cir. 1987) (no bypass by distributing questionnaires to
unit employees soliciting their suggestion for improvement).

**Footnote \# 66** - Part IV

   Section 7121(b)(1)(C)(i) and (ii) provides:

      (b) (1)Any negotiated grievance procedure referred to in
subsection (a) of this section shall -

> .     .     .     .     .      
>
> \(C\) 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
> . . . . 

**Footnote \# 67** - Part IV

   [INS, Rosedale]{.underline}, 55 FLRA at 1038.

**Footnote \# 64** - Part IV

   An employee is precluded, however, from obtaining representation from
any other source, such as a co-worker or a private attorney. [American
Federation of Government Employees, Local 1858, and U.S. Army Missile
Command, U.S. Army Test, Measurement, and Diagnostic Equipment Support
Group, U.S. Army, Information Systems Command -Redstone Arsenal
Commissary]{.underline}, 29 FLRA No. 14, 29 FLRA 69, 71-72 (proposal
that required either a representative in a grievance to be a union
official or to be approved by the union, and that also allowed employees
to represent themselves, was negotiable).

**Footnote \# 68** - Part IV

   Section 7121(b)(1)(C)(ii) of the Statute.

**Footnote \# 69** - Part IV

   [See]{.underline} [438th Air Base Group, McGuire Air Force Base, New
Jersey]{.underline}, 28 FLRA No. 145, 28 FLRA 112 (1987) (bypass when
the agency delivered a final decision on a disciplinary matter to an
employee who had been represented by the union where the contract
provided for union representation and the agency knew the employee had
been represented) and [Department of the Air Force, Sacramento Air
Logistics Center, McClellan Air Force Base, California]{.underline}, 35
FLRA No. 39, 35 FLRA 345 (1990) (bypass when the agency presented final
decisions on disciplinary actions to employees that had been represented
by the union in oral and written responses to the discipline).

**Footnote \# 70** - Part IV

   [Department of the Air Force, 375th Mission Support Squadron, Scott
Air Force Base, Illinois]{.underline}, 51 FLRA No. 72, 51 FLRA 858
(1996) (Authority repudiation doctrine), also discussed in the OGC
Guidance on \"The Impact of Collective Bargaining Agreements on the Duty
to Bargain and the Exercise of Other Statutory Rights\" (March 5, 1997).
Of course, once there is a contract right to be represented, the union
has the statutory right to designate the union official to serve as that
representative.

**Footnote \# 72** - Part IV

   [Internal Revenue Service, Washington, D.C.]{.underline}, 47 FLRA No.
193, 47 FLRA 1091 (1993) (establishes the Authority\'s contract
interpretation defense to an unfair labor practice) and the OGC Guidance
on \"The Impact of Collective Bargaining Agreements on the Duty to
Bargain and the Exercise of Other Statutory Rights\" (March 5, 1997).

**Footnote \# 73** - Part IV

   [See]{.underline}, [e.g.]{.underline}, [Federal Aviation
Administration, Washington, D.C. and Professional Airways Systems
Specialists]{.underline}, 55 FLRA No. 198, 55 FLRA 1233 (2000)
(established past practice for union representation on panels for
rating, ranking and interviewing employees).