§ 7120

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 inftuences
that would preclude recognition under this chapter.

(c) Alabor organization which has orseeks 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.

(a) 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

50

§ 7121

SUBCHAPTER II-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 (4), (e) and (g) of this section, the
procedures shall be the exclusive administrative
procedures for resolving grievances which fal! 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~
() 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
presenta grievance on the employee's own behalf,
and assure the exclusive representative the right to
be present during the grievance proceeding; and

52

§ 7120

shail 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.

(c) 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.

(£) 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.

5

§ 7121

(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 Boar
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);

53


§ 7105
§ 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;

4

§7105

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.

(©) (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 am election; and
(D) to supervise or conduct secret ballot elections
and certify the results thereof.

(2) The Authority may delegate to any administrative
Jaw 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 afier the date of the action,

§ 7105

(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

(1) 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 shal} 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

15

§ 7105

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.


§ 7135

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.

66

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(6) the Architect of the Capitol, including
employees of the United States Senate Restaurants;
and

(7) the United States Botanic Garden.

(b)(1) An employee of an agency who, on the basis
of a timely appeal or an administrative determination
(including a decision relating to an unfair labor practice
or a grievance) is found by appropriate authority under
applicable law, rule, regulation, or collective bargaining
agreement, to have been affected by an unjustified or
unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay,
allowances, or differentials of the employee—

(A) is entitled, on correction of the personnel
action, to receive for the period for which the
personnel action was in effect

{j) an amount equal to all or any part of the
pay, allowances, or differentials, as applicable
which the employee normally would have earned
or received during the period if the personnel
action had not occurred, Jess any amounts earned
by the employee through other employment
during that period; and

(ii) reasonable attomey fees related to the
personnel action which, with respect to any

decision relating to an unfair labor practice or a

grievance processed under a procedure negotiated

in accordance with chapter 71 of this title, or

68

BACK PAY

TITLE 5 OF THE UNITED STATES CODE
GOVERNMENT ORGANIZATION AND
EMPLOYEES
PART I1l-EMPLOYEES
SUBPART D-PAY AND ALLOWANCES
CHAPTER 55
PAY ADMINISTRATION
SUBCHAPTER IX-SEVERANCE PAY
AND BACK PAY

Section

5595, Severance pay. (not included in this document)
5596, Back pay due to unjustified personnel action.
5597, Separation pay. (not included in this document)

§ 5596, Back pay due to unjustified personnel action
(a) For the purpose of this section, “agency” means ~

(1) an Executive agency;

(2) the Administrative Office of the United States
Courts, the Federal Judicial Center. and the courts
named by section 610 of title 28;

(3) the Library of Congress;
(4) the Government Printing Office;

(3) the government of the District of Columbia:

67

BACK PAY

under chapter I] of title I of the Foreign Service

Act of 1980, shall be awarded in accordance with

standards established under section 7701(g) of

this title; and.

(B) forall purposes, is deemed to have performed
service for the agency during that period, except
that —

(i) annual leave restored under this paragraph
which is in excess of the maximum leave
accumulation permitted by law shall be credited
to a separate leave account for the employee and
shall be available for use by the employee within
the time limits prescribed by regulations of the
Office of Personnel Management, and

(ii) annual leave credited under clause (3) of
this subparagraph but unused and still available to
the employee under regulations prescribed by the
Office shall be included in the lump-sum payment
under section 555! or 5552(1) of this title but may
not be retained to the credit of the employee under
section 5552(2) of this title.

(2)(A) An amount payable under paragraph (1)(A)(i)
of this subsection shall be payable with interest
(B) Such interest
(i) shall be computed for the period beginning
on the effective date of the withdrawal or reduction
involved and ending on a date not more than 30 days
before the date on which payment is made;

69


§ 7116

(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 ornonpreferential

34

§ 7116

(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

36

§ 7116

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 ina
labor-management dispute if such picketing interferes
with an agency’s operations, or

(B) to condone any activity described in sub-
paragraph (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—

35

§ 7116

(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.

37


g7ul

(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, @ copy
of its constitution and bylaws, and a statement of its
objectives.

(8) Exclusive recognition shall not be accorded to a
labor organization~

2

§ 71h

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 heatings 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 shal! determine the appropriateness
of any unit, The Authority shal! 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 establishedon 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—

24

§ 711

(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 baliot election
for the unit described in any petition under this section
and in such election a majority of the employees

23

§ 7112

(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


§ 7105

(b) Except as provided in section 518 of title 28,
relating {0 litigation before the Supreme Court,
attomeys 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.

Gi) In the exercise of the functions of the Authority
under this title, the Authority may request from the
Director of the Office of Personne! 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;

18
g 711
SUBCHAPTER Il-
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) Ifa 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;

20

§ 7106

(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—

) 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.

g 7

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.

(©) 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) hag 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.

a


BACK PAY

(ii) shall be computed at the rate or rates in effect
under section 6621(a)(1) of the Internal Revenue
Code of 1986 during the period described in clause
(i); and

(iii) shall be compounded daily.

(C) Interest under this paragraph shall be paid out of
amounts available for payments under paragraph (1) of
this subsection,

(3) This subsection does not apply to any
reclassification action nor authorize the setting aside
of an otherwise proper promotion by a selecting
official from a group of properly ranked and certified
candidates,

(4) The pay, allowances, or differentials granted
under this section for the period for which an unjustified
or unwarranted personnel action was in effect shall
not exceed that authorized by the applicable law, rule,
regulations, or collective bargaining agreement under
which the unjustified or unwarranted personnel action
is found, except that in no case may pay, allowances, or
differentials be granted under this section for a period
beginning more than 6 years before the date of the filing
of a timely appeal or, absent such filing, the date of the
administrative determination.

(5)Forthe purpose of this subsection, “grievance” and
“collective bargaining agreement” have the meanings
set forth in section 7103 of this title and (with respect
to members of the Foreign Service) in sections 101 and

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1002 of the Foreign Service Act of 1980, “unfair labor
practice” means an unfair labor practice described in
section 7116 of this title and (with respect to members
of the Foreign Service) in section 1015 of the Foreign
Service Act of 1980, and “personnel action” includes
the omission or failure to take an action or confer a
benefit.

(c) The Office of Personnel Management shall
prescribe regulations to carry out this section. However,
the regulations are not applicable to the Tennessee
Valley Authority and its employees, or to the agencies
specified in subsection (2)(2) of this section.

n


g71i4

(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.

(©(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).

30

$7115

(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.

(01) 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.

(2A) 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.

32

g 74

(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 | year.

(b) An allotment under subsection (a) of this section
for the deduction of dues with respect to any employee
shall terminate when—

§ 7116
§ 7116. Unfair labor practices

(a) For the purpose of this chapter, it shail 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 fumish, 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,

33


THE FEDERAL SERVICE
LABOR-MANAGEMENT
RELATIONS STATUTE

THE BACK PAY ACT

Federal Labor Relations Authority

TABLE OF CONTENTS

Federal Service Labor-Management
Relations Statute
$ U.S.C. Chapter 71
The Back Pay Act
5 US.C. §5596......

THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE

CHAPTER 71 OF TITLE 5
OF THE U.S. CODE
AS AMENDED
AND 5 U.S.C. 5596
THE BACK PAY ACT

AS AMENDED

Federal Labor Relations Authority
Washington, D.C. 20424-0001

FLRA Document 10714
November 2008

TITLE 5 OF THE UNITED STATES CODE
GOVERNMENT ORGANIZATION AND
EMPLOYEES
PART II-EMPLOYEES
SUBPART F-LABOR-MANAGEMENT AND
EMPLOYEE RELATIONS
CHAPTER 71
LABOR-MANAGEMENT RELATIONS,

SUBCHAPTER I-GENERAL PROVISIONS

Section

7101. Findings and purpose.

7102. Employees’ rights.

7103, Definitions; application.

7104, Federal Labor Relations Authority.
7105, Powers and duties of the Authority.
7106. Management rights.

SUBCHAPTER II-RIGHTS AND DUTIES OF
AGENCIES AND LABOR ORGANIZATIONS

TILL. Exclusive recognition of labor organizations.

7112. Determination of appropriate units for labor
organization representation.

7113. National consultation rights.

7114. Representation rights and duties.

7115. Allotments to representatives,

7116. Unfair labor practices.


§ 7118

§ 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 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

a

§ 718

hearing shall, to the extent practicable, be conducted
in accordance with the provisions of subchapter I] of
chapter 5 of this title, except that the parties shall not be
bound by rules of evidence, whether statutory, common
aw, or adopted by a court. A transcript shail 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

§ 7118

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-

Gi) 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 Counse! 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

43

$7118

(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 an 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.

45


§ 7117

(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
am 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 govems 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.

§ 7117

(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.

40

§ 7117

(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 ot 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-

39

§ 7117

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.

4l


7112

(2) which is affiliated directly or indirectly with
an organization which represents other individuals to
whom such provision applies.

(a) 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 shali 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.

26

§ 7114

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 em-
ployees 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

28

§ 7113
(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 empioyment 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 1s the exclusive representative
of the employees in the unit it represents and is

g 74

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;

29


§ 7103

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

10

§ 7104
§ 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. Nomember
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.

§ 7103

(ii) on any basis other than an election,
and continues to be so recognized in accor-
dance 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 of 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
(d) A vacancy in the Authority shall not impair the

right of the remaining members to exercise all of the
powers of the Authority

(€) 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

(C1) The General Counsel of the Authority shail be
appointed by the President, by and with the advice and
consent of the Senate, for a term of 5 years. The General
Counse! 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, inchuding employees
of the General Counsel in the regional offices of the
Authority.

13


§ 7121

(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 of 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
cither 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

54

§ 7121

arbitrator shall be governed by section 7701(c)(1) of
this title, as applicable.

(© 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 (4) 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)

56

§ 7121

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.

(c)(1) Matters covered under sections 4303 and 7512
of this title which also fal! 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
gtievance procedure in accordance with this section, an

55

§7121

(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.
(©) Procedures for seeking corrective action
under subchapters I 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

37


§ 7131

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.

62

§ 7132

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 Personne! 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

64

§ 7131

(d) Except as provided in the preceding subsections
of this section—
(J) 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.

63

§ 7133

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 Il 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

65


§ 7103

in section 2105(c) of this title and the Veterans’ Can-

teen Service, Department of Veterans Affairs), the
Library of Congress, the Government Printing Of-
fice, and the Smithsonian Institution, but does not
include~

(A) the Government Accountability 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;

§ 7103

(ii) any claimed violation, misinterpre-
tation, 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 perfor-
mance 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 employces and to execute, if requested

g

§ 7103

(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 Rela-
tions 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 conceming 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

§ 7103

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 per-
sonnel 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 ILI 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 employce 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

9


7117. Duty to bargain in good faith; compelling
need; duty to consult.

7118. Prevention of unfair labor practices.

TI19. Negotiation impasses; Federal Service
Impasses Panel

7120. Standards of conduct for labor organizations.

SUBCHAPTER III-GRIEVANCES, APPEALS,
AND REVIEW

7121. Grievance procedures.
7122. Exceptions to arbitral awards.
7123. Judicial review; enforcement.

SUBCHAPTER IV-ADMINISTRATIVE AND
OTHER PROVISIONS

7131. Official time.

7132. Subpenas.

7133, Compilation and publication of data,

7134, Regulations.

7135, Continuation of existing laws, recognitions,
agreements, and procedures.

§ 710%

(b) Itis 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.

§ 7101
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
therightofemployces 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.

$7103
§ 7103. Definitions; application

(a) For the purpose of this chapter—

(1) “person” means an individual, labor organiza-
tion, 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
Intemational 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 (includ-
ing a nonappropriated fund instrumentality described

5


§ 7119

§ 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 manner 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 the
duties and functions involved, from among individuals
who are familiar with Government operations and
knowledgeable in labor-management relations.

46

§ 7119

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;

(ji) 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 shal] 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

48

§ 7119

(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 ig entitled to travel expenses as provided under
section 5703 of this title.

(5A) The Panel or its designee shall promptly
investigate any impasse presented to it under subsection
(b) of this section. The Panel shali consider the impasse
and shall either—

(i) recommend to the parties procedures for the
resohution of the impasse; or

(ii) assist the parties in resolving the impasse
through whatever methods and procedures, including

47

§ 7120

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 infiuences;

(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
hhas adopted or subscribed to standards of conduct

49


§ 7122

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

58

§ 7123

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

60

§.7123

(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

59

§7123

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
telief 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.

61